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

1. The application be dismissed.
2. The applicant pay the first respondent's costs, of and incidental to the application, to be fixed by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Mr Eric Savaiinaea is a New Zealand citizen. He came to Australia at age 20 on 16 October 2005. His entry was lawful. He was granted a Class TY Subclass 444 Special Category (Temporary) visa under the Migration Act 1958 (Cth) (the Act). He has lived, worked and entered into relationships since the time of his arrival. He has a young daughter who was born in Australia. Some members of his wider family reside in Australia, others in Samoa. 2 On 4 November 2017, Mr Savaiinaea committed a number of criminal offences in Logan City, south of Brisbane, in Queensland. These offences are summarised in [3] of the reasons of the Administrative Appeals Tribunal (Tribunal) and more particularly described, at [43], in a lengthy excerpt from the sentencing remarks made in the Queensland District Court on 18 April 2019. As summarised by the Tribunal, the offences constituted: Significantly, the offences of the Applicant on 4 November 2017 include one count of "enter dwelling with intent by break at night uses/threatens violence - domestic violence offence"; two counts of "serious assault police officer whilst pretending/is armed with a weapon"; two counts of "common assault", and one count of "common assault - domestic violence offence". Additionally, the Applicant was immediately disqualified from driving due to having exceeded the blood alcohol limit, from driving whilst intoxicated. 3 Mr Savaiinaea was sentenced to terms of imprisonment in respect of these offences. The totality of the terms of imprisonment were such that a view was formed by a delegate of the Minister then responsible for the administration of the Act (Minister) on 6 June 2019, pursuant to s 501(3A) of the Act, that it was obligatory to cancel Mr Savaiinaea's visa. That was on the basis of satisfaction that he did not pass the character test for which provision is made in s 501(6) of the Act. 4 Cancellation having occurred and that decision having been notified to Mr Savaiinaea, Mr Savaiinaea made, as s 501CA of the Act permits, a representation to the Minister that the cancellation should be revoked. Section 501CA(4) provides: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 5 The question as to whether or not to exercise the discretion to revoke cancellation came to be considered by a delegate of the Minister on 17 June 2020. The delegate decided not to revoke the cancellation of Mr Savaiinaea's visa. As was his right, Mr Savaiinaea applied to the Tribunal for the review of the Minister's delegate's decision not to revoke cancellation of his visa. 6 After a hearing over two days in August 2020, and the receipt of oral evidence as well as numerous letters from various members of Mr Savaiinaea's family and consideration of the other material before the Tribunal, the Tribunal decided on 10 September 2020 to affirm the Minister's delegate's decision not to revoke the cancellation of Mr Savaiinaea's visa. 7 Mr Savaiinaea has applied in the original jurisdiction of this Court for the judicial review of the Tribunal's decision. As they have come to be pressed, there are four grounds of review. They are: 1. The Tribunal made a jurisdictional error by failing to complete its statutory task due to its misunderstanding of the inquisitorial nature of its task and/or due to its misunderstanding of the obligations imposed by Direction 79 which resulted in it failing to comply with Direction 79 by failing to consider whether revocation was in the best interests of the Applicant's minor niece and 4 minor nephews. 2. Further or in the alternative to ground 1, the Tribunal made a jurisdictional error by failing to complete its statutory task due to its misunderstanding of the inquisitorial nature of its task and/or due to its misunderstanding of its obligation to consider representations made in support of revocation which resulted in it failing to consider representations that revocation was in the best interests of the Applicant's minor niece and 4 minor nephews. … 5. The Tribunal made a jurisdictional error by failing to complete its statutory task due to its misunderstanding of the obligations imposed by Direction 79 which resulted in it failing to comply with Direction 79 by constructively failing to consider the effect of non-revocation on the Applicant's immediate family. 6. The Tribunal made a jurisdictional error by failing to complete its statutory task due to it overlooking evidence of the effect separation from the Applicant was having on his 7-year old daughter resulting in it constructively failing to consider her best interests in accordance with paragraphs 13.2(1) and 13.2(4)(d) of Direction 79 and/or failing to consider a representation that revocation was in the best interests of the Applicant's 7-year-old daughter due to the effect separation was having on her. 8 The only active parties to the judicial review application were Mr Savaiinaea and the Minister. The Tribunal, quite properly, filed a submitting appearance. Each active party was represented by counsel and well represented at that. In particular, Mr Savaiinaea should be assured that every reasonable submission in support of the grounds of review was advanced on his behalf by Mr Glenister of counsel. Likewise, the Minister, through Mr McGlade of counsel, made careful submissions in respect of the various grounds of review. It is because I have had the benefit of such submissions, both orally today and also in advance in outline in writing, that I feel able to decide this case today. 9 A necessary starting point in relation to the grounds of review is the handwritten representation which Mr Savaiinaea made on the ordained form for the making of a representation. That representation is noteworthy, with respect, for its eloquence, contrition and passion with respect to various ties that Mr Savaiinaea has to Australia. He makes particular reference to his young daughter. 10 Mr Savaiinaea, also, and this is in many ways central to the case today, makes additional reference to Australian resident nephews and a niece with whom he has had particular association following their birth. Those nephews and that niece are the children of one of Mr Savaiinaea's sisters and her husband. At [140] of the Tribunal's reasons, the senior member constituting the Tribunal (Senior Member Pola) stated with reference to the nephews and, seemingly, also that niece: 140. There are references in the material before the Tribunal in relation to nephews and nieces of the Applicant. In this respect there were no substantial submissions made to the Tribunal as to the Applicant's relationship with his nephews and nieces, nor was anyone called to give evidence before the Tribunal regarding any parental relationships. In light of this, the Tribunal has not made any findings, based on the fact that there is insufficient evidence to make a finding that it's in the best interest of the nieces and nephews of the Applicant, for the Applicant to remain in Australia. 11 The Tribunal was constrained by s 499 of the Act to comply with any written directions given by the Minister about the performance of its functions or the exercise of its powers in place of the Minister and his delegates with respect to s 501CA(4) of the Act. Such directions had been issued by the Minister in 2019 in the form of Direction 79. The Tribunal's reasons make it explicit that it was aware not just of Direction 79, but of the obligation to comply with it. 12 Grounds 1 and 2 in the originating application raise an issue as to whether, in relation to the minor niece and minor nephews resident in Australia, the Tribunal committed jurisdictional error by failing, or at least failing in any meaningful way, to address and make findings in respect of their interests. There is no doubt that that niece and those nephews resident in Australia fell within the terms of those minors whom, apart from Mr Savaiinaea's daughter's interests, the Tribunal was obliged to consider in deciding whether or not to exercise the discretion to revoke the visa cancellation. 13 In the circumstances of this case, there are two particular features of administrative decision making in respect of the review of a decision in relation to whether to revoke visa cancellation which are at large: the first, which proceeds from the correct premise that consideration of the interests of the minors was mandatory, is the subject of discussion in the joint judgment in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 (Uelese). Whilst the particular context in which the Court made observations concerning the requirement to comply with a materially similar ministerial direction arose from a controversy concerning the meaning and effect of s 500(6H) of the Act, there is no doubt in my mind that the following observations were not confined just to the circumstances of such a case. Rather, the observations which I now cite are just as applicable to the present case as they were in Uelese: 62. Secondly, the Minister's submission seeks to import into the inquisitorial review function of the Tribunal notions appropriate to adversarial proceedings conducted in accordance with formal rules of pleading. That approach is inappropriate to the kind of review undertaken by the Tribunal. 63. In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, this Court cautioned against transposing the language and mindset of adversarial litigation to inquisitorial decision-making of the kind authorised by s 500 of the Act. It is true, as the Full Court of the Federal Court rightly observed in Jagroop, that both s 500 of the Act and the AAT Act "contemplate participation by both the applicant and the Minister in the [Tribunal] hearing". Section 500(6H) expressly contemplates that the applicant will present a "case"; and it is implicit that the Minister will also present a "case". That having been said, it would be to give undue weight to conceptions drawn from adversarial litigation to accept that the Tribunal was not required to take into account the interests of the appellant's two youngest children because he had not sought to advance their interests as a positive part of his case. 64. Whether or not the appellant sought to make the interests of those children a positive aspect of his case, the Tribunal was obliged by s 499 of the Act and the terms of Direction 55 to take into account the interests of any minor children of which it was aware in determining his application for review. By virtue of s 499 and Direction 55, one of the primary considerations for the Tribunal concerned the interests of children who were not themselves represented in the proceedings before the Tribunal. The requirement of cl 9.3 of Direction 55 to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her "case". [footnote references omitted] 14 Based on these observations Mr Glenister submitted, correctly, in my view, that even if a particular minor resident in Australia, falling within the terms of the Minister's direction, had not expressly been mentioned in submissions made on behalf of Mr Savaiinaea to the Tribunal, that did not relieve the Tribunal from an obligation to consider the interests of those minors in the review of the Minister's delegate's decision. Put shortly, that was the effect of s 499(2A) once the Minister chose to give prescriptive directions requiring the interests of minors to be considered by those exercising, relevantly, the discretionary power found in s 501CA(4) of the Act. 15 The second administrative law principle which is at large in this case is one raised on behalf of the Minister. That principle proceeds from, ultimately, a decision of the Tribunal of Re Easton v Repatriation Commission (1987) 6 AAR 558, at 561, in which it was stated: The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review for the function of the [Tribunal] is to review a decision. 16 That statement commended itself to Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329, at 333 - 334, and, in turn, to Kirby J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, at [45]. More recently, this notion of the Tribunal as part of an administrative continuum has commended itself to Bell, Gageler, Gordon and Edelman JJ in Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, at [53], and to a Full Court of the Federal Court in AAL19 v Minister for Home Affairs [2020] FCAFC 114, at [24]. 17 The notion of the Tribunal forming part of a continuum has a number of ramifications. For present purposes, the pertinent ramification is that the Tribunal's reasons will necessarily be coloured and shaped by prior positions taken by the parties and by matters which are or are not at issue, either as revealed by statements of facts, issues and contentions or otherwise. Unsurprisingly, the Tribunal will react to particular emphasis given to particular issues by the parties to a particular review application. 18 In this particular review application, Mr Savaiinaea's statutory declaration, which followed the initial making of the representation, and was apparently prepared with the benefit of legal representation, made only passing reference to the Australian resident niece and nephews. There was, quite fairly and appropriately, reference, although not emphasis, on these particular minors also falling within the class prescribed in the Minister's direction as to those whose interests had to be taken into account in the statement of facts, issues and contentions and oral submissions. 19 Even though it is only to be expected that the Tribunal will react to the way in which a case is presented, and in this case I am quite sure [140] is explicable on that basis, that does not mean that the Tribunal is excused from considering a subject which it is obliged by statute and ministerial direction to take into account. In many ways, at the heart of this case lies an intersection between what I have described as those two administrative law principles. 20 Had there been no reference at all to the niece and nephews, I am quite sure that Uelese would have bound me to hold that the Tribunal's decision was attended with jurisdictional error of the kind that grounds 1 and 2 seek to agitate. That, however, is not the case. The subject of the interests of these particular minors has been addressed, but the way in which it has been addressed is, in my view, a reflection of the way in which the case was presented. 21 In other words, in my view, the Tribunal has not failed to comply with its statutory obligation as described in Uelese. Rather, what it has done is to appreciate that though it was obliged to consider, and has considered, those interests, the particular emphasis before the Tribunal was not on those interests. It is certainly possible, if one starts with and reads in isolation the most eloquent handwritten passages in Mr Saviinaea's initial representation, to form a view that much more attention, indeed, ought to have been given to the interests of his minor Australian resident niece and nephews. It is just that those interests, though they were not neglected in consideration, received the attention or the prominence which those then representing Mr Savaiinaea gave them in submissions and which he himself gave them in his statutory declaration. It is nothing to the point, if one reaches the conclusion that the interests were considered, that other members of the Tribunal may have chosen to give greater detail to the statements made by Mr Savaiinaea concerning them. 22 Another factor which also may explain the way in which [140] is cast is if one looks, for example, to the statement of the mother of these particular minors. The emphasis in that statement is on the impact on her and Mr Savaiinaea's mother of deportation rather than emphasis on the impact on her children. 23 Grounds 3 and 4 in the judicial review application take up a question as to whether, on a separate basis, there was non-compliance with the statutory obligation, via non-compliance with the Minister's direction, namely, the impact of non-revocation on Mr Savaiinaea's former partner. This did not, in fairness, receive particular emphasis in oral submissions, and were said in the written submission to have been abandoned. The long and the short of it in relation to these grounds, in any event, is that when one reads as a whole, as one must, the Tribunal's reasons, the interests of Mr Savaiinaea's former partner are considered by the Tribunal. 24 The same may be said in relation to ground 5. If one approaches ground 5 from the starting premise of the letters written by Mr Savaiinaea's various siblings to the Tribunal, one cannot fail to be moved at a humane level by the heartfelt sentiments which his siblings voice as to Mr Savaiinaea and the impact which his deportation would have on the wider family. 25 What to make of those statements was a matter for the Tribunal and a matter which the Tribunal was obliged by statute and the Minister's direction to consider. The Tribunal has not ignored the subject. Rather, what the Tribunal stated, having referred to the relevant part of the direction, was as follows: 202. The Tribunal has before it numerous letters of support from family and friends hoping for the Applicant to remain in Australia, including from the family of the victim of the Applicant's offending, his former partner, as outlined in the earlier reasons of this decision. Further, submissions before the Tribunal confirm the Applicant has been in stable employment during his time in Australia. 203. In applying paragraph 14.2(1)(a)(i) of the Direction, the Tribunal has not applied adverse weight against the Applicant given that he arrived in Australia as an adult at 20 years of age and the offending in November 2017 for which the Applicant was convicted of in April 2019, occurred some time after his arrival in October 2005. 204. The Tribunal is of the view that a slight measure of weight should be afforded to the Applicant in terms of applying paragraph 14.2(1)(a)(ii) of the Direction. The Tribunal's reasons for this is based on his work history and community participation in this country. 205. In applying Paragraph 14.2(1)(b) of the Direction, the Tribunal notes that the Applicant has a biological child in Australia, and it is clear the Applicant's biological child would be impacted by the Applicant's removal from Australia. 206. The Applicant made submissions to the Tribunal that: "76. The Applicant has distinct links with Australian citizens as evidenced by the various support letters. 77. We submit that in circumstances where: (a) both prior to engaging in the index offending, the Applicant has positively contributed to the Australian community by exhibiting a strong work ethic; (b) all of the Applicant's immediate family live in Australia; (c) the effect of non-revocation on the Applicant's immediate family in Australia, his ex-partner and child; and (d) the Applicant resided in Australia for 12 years prior to the index offending - he had no prior criminal history, and instead, can be seen to have positively contributed to the Australian community, this consideration should weigh strongly in favour of exercising the discretion to revoke the visa cancellation conferred by s 501CA(4)." 207. It is clear from the material before the Tribunal that the Applicant's strength, nature and duration of ties to Australia are considerable. 208. It is the Tribunal's view that, consistent with paragraph 14.2(1)(b) of the Direction, this Other Consideration attracts a moderate level of weight in favour of the Applicant. The Tribunal does however temper this slightly by its finding in relation to paragraph 14.2(1)(a)(i) and (ii) of the Direction. 209. Accordingly, while this Other Consideration (b) in paragraph 14.2 of the Direction may overall moderately weigh in favour of revocation, it is outweighed by Primary Considerations A and C, both of which weigh heavily in favour non-revocation. [sic] [footnote references omitted] 26 The reasons of the Tribunal are not to be read narrowly and with an eye for error: see, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It is singularly important that the familiarity of encounter with the statements made by the High Court and, in turn, as approved by a Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 not diminish their force. What is counselled is a principled restraint by this Court and others exercising original judicial review jurisdiction, in relation to the reading of reasons of an administrator, including the Tribunal. The risk, if one violates that is impermissibly to embark upon a form of merits review. 27 Others constituting the Tribunal may very well have chosen to identify by name particular siblings and even to quote from the, with respect, simple, heartfelt eloquence of their letters, but there is no obligation to do that, and the particular passage just quoted in the Tribunal's reasons makes it pellucid, in my view, that the particular subject of the appellant's immediate family's interests, as ordained in the Minister's direction, was taken into account. 28 In my view, if it were the case that either those family members or Mr Savaiinaea's niece and nephews resident in Australia had not been adverted to by the Tribunal, that omission would, in the sense described in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, have been material. It is not, however, necessary further to consider that subject because, in my view, each of those person's interests was considered and considered in the sense described by this Court's Full Court in Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar), at [36], by reference to observations made by Kiefel J. 29 Insofar as there was an issue in the present case as to whether the Tribunal had made findings: see Omar at [39], in my view, the Tribunal has, in [140] and, further, in [207], made findings. 30 To summarise, the Tribunal was, as was correctly submitted on Mr Savaiinaea's behalf, obliged to take into account the interests of the Australian resident minor nephews and niece, as well as siblings and, for that matter, Mr Savaiinaea's ex-partner. It did that. 31 It necessarily follows from the above conclusions that ground 6 does not have merit. None of this is to say, I emphasise, that the grounds pressed were not reasonably arguable, only that, upon detailed consideration, the conclusion I have reached is that they do not have merit. 32 The application must be dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.