Sami v Minister for Immigration and Citizenship

1. THE APPEAL 1 The appellant, Tony Sami, seeks that the orders of the Federal Court made on 21 February 2013 dismissing his application for judicial review of the decision of the Administrative Appeals Tribunal (the AAT) made on 20 June 2012 confirming the decision under review that his visa be cancelled be set aside. 2 The AAT's decision is challenged on grounds which relate to the exercise of the discretion under s 501 of the Migration Act 1958 (Cth) (the Act) to cancel a visa where, as was accepted here, a person does not pass the character test and, in particular, the AAT's consideration of the best interests of the appellant's children. The Minister's Direction (Direction No 41 - Visa refusal and cancellation under s 501) (Direction 41) made under s 499 of the Act, which was in force at the relevant time, identified a number of "primary considerations" which, by para 9(1) of Direction 41, decision-makers "must take into account … in every case" in the exercise of the discretion. Those primary considerations included "relevant international obligations" including the rights of the child as described in the Convention on the Rights of the Child (CROC), (para 10.4, Direction 41), as well as the protection of the Australian community from serious criminal conduct (para 10.1), whether the person was a minor when they began living in Australia (para 10.2), and the length of time that the person had been resident in Australia before engaging in criminal conduct (para 10.3). 3 Subparagraph 10.4.1(5) of Direction 41 in turn, listed a number of factors to be considered in considering the best interests of the child including: (a) the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child; (b) the duration of the relationship, including the number and length of any separations and reason/s for the separation; (c) the extent to which the person is likely to play a full parental role up to the child's eighteenth birthday; (d) the child's age; … (f) the likely effect that any separation from the person would have on the child; (g) the existence of other persons who already fulfil a parental role in relation to the child; … (k) any known wishes expressed by the child; 4 Other directly relevant considerations may also be taken into account under para 9(1) and (2) of Direction 41 but, by para 11(2), generally should be given less weight than primary considerations. 5 As the primary judge explained in the reasons for judgment leading to the orders made on 21 February 2013 the jurisdiction of this Court, both at first instance and in this appeal, to review the decision of the AAT is limited by ss 474, 476A(1)(b) and 476A(2) of the Act. By those provisions this Court may review the decision of the AAT for jurisdictional error only (see Sami v Minister for Immigration and Citizenship [2013] FCA 106 at [7]-[10], a review of the decision in Sami and Minister for Immigration and Citizenship [2012] AATA 459). Jurisdictional error, in the context of an administrative tribunal, involves circumstances where the tribunal "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected" (Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 at 179). These limits may be contrasted with the jurisdiction of the AAT which, in reviewing the decision of the Minister or the Minister's delegate in respect of the cancellation of a visa, is vested with and must exercise the same discretion as the Minister or the Minister's delegate. These different jurisdictional limits underpin the reasons by which the primary judge dismissed the judicial review application and also explain why both the application to lead fresh evidence on this appeal and the appeal itself must be dismissed.

2. THE FRESH EVIDENCE APPLICATION 6 By an application foreshadowed before the hearing of the appeal the appellant applied to introduce fresh evidence. Section 27 of the Federal Court of Australia Act 1976 (Cth) permits the Court to receive fresh evidence on an appeal. Rule 36.57 of the Federal Court Rules 2011 provides that any such application must be accompanied by an affidavit explaining, amongst other things, the grounds of appeal to which the application relates and why the evidence was not adduced in the court appealed from. 7 The requirements of r 36.57 reflect the principles which apply to questions of fresh evidence on appeals. Generally, if the evidence could have been adduced below by the exercise of reasonable diligence it will not be admitted on appeal (see, for example, Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236; [2007] FCAFC 134 at [4]-[7]). Further, unless the evidence is of such relevance and weight that its admission would be likely to lead to a different result it also will not usually be admitted on an appeal. In the present case, the potential relevance and weight of the proposed fresh evidence must be assessed having regard to the limits on the Court's jurisdiction to review the decision of the AAT - that is, for jurisdictional error only, no review of the merits of the AAT's decision being permissible by this Court either at first instance or on appeal. 8 These jurisdictional limits confound the application to adduce fresh evidence. The evidence sought to be adduced in the appeal relates to what was ground 7 in the notice of appeal - expressed as "the best interest of a child and the Australian international obligation" - and, in accordance with the application for leave to amend the notice of appeal (dealt with below), the proposed grounds 1A and 1B. The evidence consists of a further affidavit from the former wife of the appellant to the effect that her relationship with the appellant has improved markedly and she now believes that the appellant is a very important figure in the lives of their children, particularly their youngest child who has autism spectrum disorder, and that she needs the help of the appellant with the raising of their children. This is said to be (and we accept it is) inconsistent in a number of respects with the evidence of the appellant's former wife that was available to the AAT and which the AAT took into account in determining the application for review of the decision with respect to the cancellation of his visa. 9 The problem is that neither the grounds of the appeal, nor the application to adduce fresh evidence, recognise that this Court has no power to review the merits of the AAT's decision. This Court may only review whether the AAT's decision should be set aside for jurisdictional error. The proposed additional evidence does not relate to any alleged jurisdictional error by the AAT. It concerns the merits of the AAT's decision having regard to current information about the relationship between the appellant and his former wife and her current views about the needs of their children. The fact that former wife now holds a different view about the importance of her former husband in the continued welfare of their children does not relate in any way to the legality of the AAT's decision and whether it was affected by jurisdictional error. That evidence certainly cannot demonstrate that the Tribunal's conclusions were not open to it, as proposed in the appellant's supplementary submissions. As such, the proposed fresh evidence cannot meet the requirement that it be of such relevance and weight that its admission would be likely to lead to a different result. This is because there is no jurisdictional error by the AAT in not having considered evidence that resulted from a witness having changed their mind. As this Court has no power to reconsider the merits of the AAT's decision, the proposed fresh evidence also can never be relevant to the resolution of the appeal. 10 Furthermore, the appellant's reliance upon the decision in CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67 (CDJ) holding that an appeal to the Full Court of the Family Court of Australia is an appeal by way of rehearing, is misplaced. It is true that an appeal to this Court is also by way of rehearing: Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 at [70]-[71]. However, the exercise of discretion to receive further evidence under s 27 of the Federal Court of Australia Act must still take into account the subject matter of the appeal: CDJ at [56] Gaudron J (while her Honour dissented in the result, we regard her observation in this regard as uncontroversial). In CDJ, the appeal concerned an exercise of discretion by the Family Court at first instance to make a particular parenting order. In such a case, the Family Court is charged with the function of making the relevant findings of fact. In the present case, however, the subject-matter of the appeal is a decision of the primary judge on an application for judicial review of the Tribunal's decision, which was immune from review other than on grounds of jurisdictional error. The jurisdiction of this Court, on appeal, is similarly confined. The potential relevance of any further evidence that might be led on the appeal is, in other words, necessarily confined by the scope of issues that may legitimately be raised on an appeal against a decision of this nature. There is no meaningful analogy available to the circumstances in CDJ. 11 For these reasons we refused the application by the appellant for leave to adduce fresh evidence on the appeal.

3.1 The grounds 12 The appellant sought leave during the hearing to amend the notice of appeal, in effect, to substitute for the nine grounds in the notice of appeal as filed two grounds as follows: (1) His Honour erred in determining, on the evidence before his Honour, that the decision of the Tribunal of 20 June 2012 in reasons dated 20 July 2012 gave proper consideration to the best interests of the Children in the exercise of the discretion to cancel the Appellant's visa and in so doing denied the Appellant procedural fairness and natural justice. (2) The consideration of the Tribunal in reasons dated 20 July 2012 as to the best interests of the Children in the exercise of the discretion to cancel the Appellant's visa is not open on the evidence now available before the Full Federal Court. 13 Both grounds are unsustainable, as explained below. 14 First, neither error was alleged before the primary judge. The primary judge was never called upon to consider whether the Tribunal had erred on the first ground. The second ground appears to acknowledge this implicitly, the evidence being said to be that available to this Court rather than to the primary judge. The primary judge, accordingly, cannot have erred in not dealing with grounds of appeal which were never put. 15 Second, on the basis that leave should be granted to raise the grounds of appeal despite the fact that they were not put to the primary judge (discussed further below), the grounds are spurious in any event.

3.2 Ground 1 16 Ground 1 is said to involve three bases which may be summarised (using the appellant's numbering) as: (1A) an alleged failure by the Tribunal to give proper consideration to the best interests of the appellant's children, (1B) an alleged failure by the Tribunal to properly ascertain what the best interests of the children were, and (1C) a denial by the Tribunal of procedural fairness by the Tribunal not having called the appellant's oldest child to give evidence and in having allowed the appellant's former wife to give evidence over the telephone in the circumstances. 17 Insofar as the Tribunal is said to have erred in ground 1A, the complaint that [54] of the Tribunal's reasons shows the Tribunal being distracted "on a non-related matter" (non-refoulement obligations) is an example of an "an eye keenly attuned to the perception of error" (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 at 287 cited in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272). On any fair reading it is plain that the Tribunal was dealing with the primary consideration of "relevant international obligations", one aspect of which involves the rights of the child as described in CROC and another aspect of which involves non-refoulement obligations contained in the Refugees Convention, the International Convention on Civil and Political Rights and other international conventions. These obligations are among the list of other considerations identified as "the primary considerations" which must be taken into account in every case. The conjunction of the two issues in [54], accordingly, does no more than properly reflect the actual primary considerations as the immediately succeeding paragraph, [55], disclosed in the Tribunal's citation of para 10.4 of Direction 41. 18 The Tribunal's reasons are otherwise alleged to disclose error in [64] and [65] where the Tribunal said: 64. Having regard to Ms Sourour's evidence, insofar as it relates to the abovementioned relevant factors, however, I accept that Ms Sourour already plays a full parental role in relation to the children and is likely to continue to do so up until their eighteenth birthdays, and that it is unlikely that the applicant, even if he remains in Australia, will be in a position to do so. Furthermore, I am unaware as to whether the applicant's removal from Australia would be likely to have a significant adverse effect on either of the children but, having regard to Ms Sourour's evidence, I have reservations as to whether it would be likely to do so, given the applicant's substantial periods of separation from them during his previous periods of incarceration and, of course, during his present period of incarceration which commenced on 4 February 2011. 65. Although this primary consideration weighs against cancellation of the visa, having regard to all relevant considerations regarding the best interests of the applicant's two children, I do not attach substantial or significant weight to it. 19 It is said that the Tribunal's reasons disclose that the Tribunal only gave "lip service" to the consideration of the best interests of the children. This is said to be demonstrated by the Tribunal's conclusion that "I do not attach substantial or significant weight to it" at [65] and the fact that the submission for the respondent before the Tribunal was only that the best interests of the children did not outweigh the other primary considerations. 20 Again, the contentions elevate form over substance and approach the Tribunal's reasons with an eye attuned to error. The Tribunal, having considered all of the evidence available about the children at [57]-[62], in fact concluded at [63] that: Having regard to the relevant factors referred to in para 10.4.1(5) of Direction [41], I accept that it is in the best interests of each of the two children for the applicant to remain in Australia. Accordingly, this primary consideration weighs against cancellation of the visa. 21 The reasoning in [64] and [65] is directed towards the task of weighing that primary consideration (against visa cancellation). This was essential given that all other primary considerations weighed in favour of visa cancellation, as the reasoning in [85] makes clear. It is in this context that the Tribunal weighed up all of the evidence about the appellant's children and concluded that this primary consideration did not warrant substantial or significant weight. All considerations, even primary considerations, must be weighed by the decision-maker. But for that process, it would be impossible to reconcile conflicting primary considerations. The appellant could not have had any expectation, legitimate or otherwise than that the Tribunal would engage in this process of weighing all relevant considerations including the primary considerations. The case law on which the appellant relies in written submissions does not suggest to the contrary. The case is not analogous to Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 (Teoh), to the extent the reasoning in Teoh survives the decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6. In any event, the point in Teoh is that the best interests of the children were not considered to be a primary consideration, contrary to Australia's ratification of international convention. Indeed, it is apparent that the Tribunal's analysis in this case reflects that which the Full Court held was proper in Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568. Thus the Tribunal accepted that the primary consideration of the best interests of the children was for the appellant's visa not to be cancelled (at [63]). In assessing the weight to be given to that primary consideration (recognising that there were other primary considerations which pointed towards cancellation of the visa) the Tribunal examined the evidence. The Tribunal did not treat the other primary considerations as inherently more weighty than the best interests of the children (which Wan at [32] said would be wrong in principle). It weighed the whole of the evidence and, on that basis, concluded that this primary consideration could not be given substantial or significant weight for the reasons summarised at [64]. This process of the weighing of considerations, including primary considerations, was a matter for the Tribunal alone. 22 For these reasons the contention that the Tribunal did not ask whether the best interests of the children were outweighed, but merely dismissed that factor from its consideration of the exercise of discretion, cannot be accepted. The language of [64] and [65] of the reasons, read fairly in the context of the reasons as a whole, particularly [63] and [85], discloses that the Tribunal: • understood that it was bound to treat the best interests of the children as a primary consideration; • found that the interests of the children were best served by not cancelling the visa; and • made an assessment, on the whole of the evidence, that this primary consideration did not warrant significant or substantial weight, correctly recognising that there were other primary considerations against which the best interests of the children had to be balanced. 23 To characterise the Tribunal's reasons in this case as paying "lip service" to this primary consideration or identifying and then dismissing this primary consideration would give primacy to form over substance. It would also fail to recognise that the best interests of the children are not the only primary consideration and that the different primary considerations in a particular case may not support the same outcome in terms of the exercise of discretion. That tension can be resolved only by the decision-maker reaching a view as to their relative weight. 24 The attempt in oral submissions for the appellant to expose inconsistency in the Tribunal's reasoning in [63]-[65] depends on the notion that, despite having found it would be in the best interests of the children for the appellant to remain in Australia, the Tribunal then found to the contrary by saying it was not aware whether the appellant's removal from Australia would be likely to have a significant adverse effect on the children and did not attach substantial or significant weight to this primary consideration. The submission conflates separate issues. First, the Tribunal was bound to and did find what the best interests of the children would be. In so doing the Tribunal also considered the factors in para 10.4.1(5) of Direction 41. The fact that the Tribunal did not expressly refer to all of the material about the appellant's relationship with his children in this process is immaterial and discloses no error. Secondly, as indicated above, the Tribunal then had to work out what weight that primary consideration should be assigned having regard to all of the available material. The lack of evidence about the significance of the adverse effects on the children in this case was thus relevant to weight. So too was the fact that the appellant had been separated from his children by reason of incarceration and that the appellant's former wife played a full parental role to the children. These factors indicated to the Tribunal that this primary consideration should not be given substantial or significant weight, implicitly, as against all other considerations (including other primary considerations) which supported cancellation. This attribution of weight, a function which the Tribunal was bound to perform, does not "undo" the earlier finding that it would be in the best interests of the children for the appellant to remain in Australia. This present case, therefore, is not analogous to Nweke v Minister for Immigration and Citizenship [2012] FCA 266 (Nweke), Lesianawai v Minister for Immigration and Citizenship (2012) FCA 897 (Lesianawai), Spruill v Minister for Immigration and Citizenship [2012] FCA 1401 or Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450; (2002) 119 FCR 454. 25 The notion proposed in oral submissions that the Tribunal, somehow, had to "go further" and ensure it had sufficient material to make positive findings about all of the matters the appellant identified in this appeal to be relevant is unsupported by authority. It also overlooks the fact that the appellant was legally represented before the Tribunal and such questions as seen fit could have been asked of the appellant's former wife or the appellant himself. 26 The submission that the Tribunal had to start with the decision of the Minister's delegate, which referred to the close relationship of the appellant with his children, overlooks the nature of the Tribunal's jurisdiction. The Tribunal is obliged to make a decision on the merits on the basis of the material available to it. The Tribunal is not conducting an appeal against the decision of the Minister's delegate. The review to the Tribunal is a full de novo merits review. 27 Other matters are noted in the appellant's submissions which are said to indicate error. Hence, it is said the Tribunal failed to "properly consider" how the appellant was involved in his children's lives and upbringing in various ways, failed to consider the interests of each child separately, did not explain why the appellant's former wife would not allow the appellant to take out the younger child, "artificially found" that the appellant's former wife "plays a full parental role" when the evidence pointed to the role of others in providing assistance, inappropriately postulated that the appellant would not play a full parental role if he remained in Australia, and did not remark on how the appellant was important to his children. These matters are said to support the submission that the Tribunal "lost its way" and failed to complete its task of ascertaining the best interests of the children on the whole of the evidence rather than becoming "somewhat mesmerised" by the evidence of the appellant's former wife and, thereby, failed to give primary consideration to the best interests of the children. 28 The submission simply cannot stand in the face of the basic principles that the Tribunal is bound to act on the material made available to it and is entitled to draw conclusions that are reasonably open on that material. The submission is nothing more than an invitation to this Court, which must be refused, to re-engage in an assessment of the merits of the Tribunal's decision. 29 The same principles undermine the attempt in the appellant's supplementary submissions to affix the Tribunal with error because it accepted the evidence of the appellant's former wife. Characterising the Tribunal's conclusions as "blind acceptance" of this evidence is misconceived. The Tribunal is the arbiter of fact. It was entitled, indeed bound, to act on the evidence before it. To then seek to transform so called "blind acceptance" of evidence into a failure to fulfil its task is fundamentally wrong. It fails to recognise the critical limits of judicial review, let alone judicial review for jurisdictional error. 30 Similar misconceptions underpin the proposition in the appellant's supplementary submissions to the effect that the Tribunal erred in not making inquiries about the adverse effects there would be on the children if the appellant's visa is cancelled. The principles cited in the appellant's supplementary submissions simply do not engage with the facts of the present case. The Tribunal in this case found it was in the best interests of the children for the appellant to remain in Australia. The Tribunal was not required to make any further finding about the particular kind or degree of impact on the children that the appellant's removal from Australia would have. It was for the appellant to make his case. The fact that the Tribunal was left "unaware as to whether the [appellant's] removal from Australia would be likely to have a significant adverse effect on either of the children" is nothing more than an inevitable consequence of the material that was made available to the Tribunal. The fact that proceedings before the Tribunal are inquisitorial does not involve any form of a general duty to inquire (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25]). 31 Nor can the submission underpinning ground 1B stand. Lesianawai and Nweke were cases in which the Minister had failed to make any finding at all as to what the best interests of the children in fact were. The present case is different. At [63] the Tribunal expressly found that it was in the best interests of the children for the appellant to remain in Australia. Accordingly, ground 1B is unsustainable. The reasoning at [64], contrary to the submission for the appellant, does not disclose the same or a similar error by the Tribunal in this case. The so-called "key questions" that the Tribunal allegedly failed to answer about the parental role the appellant would play if he remained in Australia and the potential adverse effect on the children if he were to be removed do not withstand scrutiny. The Tribunal at least implicitly in respect of the first question and expressly in respect of the second question dealt with both matters in [64]. In any event, the Tribunal could act only on the material that was before it. The fact that at [61] the Tribunal (correctly) noted that it was unaware of the wishes of either children in circumstances where a summons to the older child to give evidence had (apparently) been refused at an earlier time does not disclose error. There is no appeal against the Tribunal's decision to refuse to issue the summons. As such, all that is said is that the Tribunal should have noted the appellant's desire that his eldest child give evidence in [61] and its failure to do so is "misleading to the Federal Court" and shows the Tribunal failed to complete its task. The submissions are misconceived. First, para 10.4.1(5)(k) of Direction 41 expressly required, as an aspect of considering the best interests of the child, a consideration only of "any known wishes expressed by the child", thereby implicitly recognising that the child's wishes may not be known to the Tribunal but that the Tribunal may nonetheless complete its consideration of the best interests of the child without that information. In this regard, as subparagraph (k) also implies, the best interests of the child will not necessarily accord with the child's expressed wishes. Secondly, the notion of misleading the Federal Court is unconnected to the simple fact that the Tribunal did not know about the wishes of either child. An earlier, unchallenged, procedural decision refusing to issue a summons cannot be used to invent error. Nor was there any error in the Tribunal not having noted this procedural history. No principle to support such a proposition is cited presumably because there is no such support. 32 The complaint about the Tribunal's questions of the appellant's former wife is also misconceived. The Tribunal was entitled to make inquiries of the appellant's former wife. The submission that it "crossed the line in becoming too inquisitive" and should have asked questions about the best interests of the children is a form of wishful thinking. The Tribunal was entitled to do what it did in the way it did and no amount of wishing it had not done so or had done something else can change those facts. 33 The first aspect of ground 1C is an illegitimate attempt to appeal against the Tribunal's earlier decision (on 24 May 2012) not to issue a summons for the older child to give evidence. This was not part of the appeal before the primary judge. The primary judge at [32] was dealing with a different point that counsel for the appellant at the hearing did not seek to call evidence from the appellant's eldest child. This is a fact. Irrespective of the earlier ruling, if the eldest child had been willing to do so, the appellant could have sought to adduce evidence from him at the hearing. The earlier ruling related to a summons to compel the child to give evidence (which, it must be said, the Tribunal not surprisingly refused). The earlier ruling involves a separate decision on a matter of practice and procedure. Accordingly, leave is required to raise the issue. The transcript of the directions hearing was not available at the time the written submissions would be filed. In any event, no error in the Tribunal's decision is identified. Accordingly, this aspect of the ground cannot possibly found any denial of procedural fairness. Leave to raise this aspect of ground 1C should be refused. 34 The second aspect of ground 1C is equally unsustainable. Allowing a witness to give evidence over the telephone is a discretionary decision for the Tribunal, permitted by s 35A of the Administrative Appeals Tribunal Act 1975 (Cth). It involves a discretion about a matter of practice and procedure. Leave would be required to appeal against the decision as it was not raised below. Given the nature of the decision, as discretionary and on practice and procedure, leave should not be granted lightly. Moreover, the appellant acknowledges that his counsel did not object to the procedure being adopted in this case. Accordingly, no error capable of vitiating the discretionary decision (in the required sense explained in House v The King (1936) 55 CLR 499 is apparent. All that is said is that the Tribunal "should" have identified in its reasons that this evidence was given over the telephone. We see no reason why the Tribunal should have done so and, still less, does the fact that the Tribunal did not do so disclose any error of law of any kind. The notion that, in some way, the Tribunal failed to act judicially when it permitted the appellant's former wife to give evidence by telephone is misconceived. The reference to the conduct of the respondent's counsel in the appellant's submissions being said to found an obligation on the Tribunal to ask what had been communicated to counsel by the appellant's former wife is entirely unfounded. It has no basis in law of which we are aware.

3.3 Ground 2 35 Ground 2 is not addressed in the appellant's written submissions. The ground appears to depend on there being different evidence before this Court. Accordingly, the ground is an invitation to merits review which this Court cannot accept. In any event, for the reasons already given the application for leave to adduce fresh evidence must be refused. It follows that ground 2 cannot succeed.

4. CONCLUSION 36 For the reasons set out above, the appellant's appeal grounds, as amended, cannot be accepted and the appeal should be dismissed, with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jagot, Barker and Perry JJ.