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

The decision below 10 The appellant's application for judicial review (to which this appeal relates) raised two grounds. Only one of those grounds is relevant to this appeal, namely: The [Tribunal] fell into jurisdictional error by failing to give any, or appropriate, consideration to a relevant consideration, namely cl. 9.2(4) of Direction 79 (Best interests of a child in Australia) by overlooking evidence directly relevant to the effect that separation would have on the [appellant's] daughter. 11 Clause 9.2(4)(d) of Direction 79 provides: Best interests of minor children in Australia affected by the decision … (4) In considering the best interests of the child, the following factors must be considered where relevant: … (d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; 12 For the purposes of considering the application of this clause, the Tribunal noted that the appellant had a young child and two young nephews who normally resided with him in Australia. The Tribunal found that the appellant was likely to play a meaningful role in the lives of these children should he be allowed to remain in Australia, including financially and by providing practical and emotional support. It accepted that if the appellant were to be repatriated to India, with his child and nephews remaining in Australia, there would be an adverse impact on their interests. The Tribunal placed substantial weight on that finding as a factor in favour of not exercising the discretion to cancel the appellant's visa. 13 The substance of the appellant's case in relation to this ground was that the Tribunal did not give proper, genuine and realistic consideration to the impact on his child of his (the appellant's) removal from Australia, or engage in an active intellectual process in relation to that matter. The appellant placed particular reliance on a letter that formed part of a large body of documentary material he had placed before the Tribunal. The letter was written by a maternal and child health nurse, Ms McKinnon, in which she said: My purpose for writing is to support [the appellant's wife] in requesting leniency in her husband's appeal to provide [the appellant's wife] the support she needs for her emotional state and parenting. This is order [sic] will benefit [the appellant's daughter] in this crucial stage of development. [The appellant's wife] is an isolated first-time mother whose husband is currently in detention with an expired visa due to a criminal conviction. As [the appellant's wife] is on a bridging visa, this leaves the family with no income and an uncertain future. [The appellant's wife's] parents remain in India and her husband's parents are deceased. It is usually the cultural norm in India to have parental and spousal support in caring for an infant. [The appellant's wife] has no transport, and didn't even have a pram for [the appellant's daughter] despite her being 6m old. (Emphasis in original.) 14 Ms McKinnon performed a test which led her to conclude that the appellant's wife was suffering from severe post-natal depression. The letter noted that: [The appellant's wife] identifies that her emotional state is a direct result of her husband being in detention. [The appellant's wife] verbalises her perception that she need her husbands [sic] physical presence and support to raise [the appellant's daughter], and that her anxiety over their predicament consumes her every moment. 15 The letter continued: I am pleased to see that [the appellant's wife] has connected with Psychology services at CBCHS, but remain concerned that [she] continues to suffer significant low moods and anxiety that are influenced by what is an ongoing situation. Research states that the first three years of life are a period of incredible growth in all areas of a baby's development, but also highlights the impact maternal depression and stress can have on an infant's mental health and developing mind. Please refer to https://www.zerotothree.org/early-development/infant-and-early-childhood-mental-health. [The appellant's daughter] demonstrated signs of anxiety, in that she is very stranger wary, described as waking frequently and relying on breast-feeding to pacify and sleep. I have not observed [the appellant's daughter] to smile in my three visits to the family so far. 16 Before the primary judge, the appellant contended that the Tribunal's reasoning did not disclose any, or any sufficient, engagement with the concerns that Ms McKinnon had raised in the letter. He contended that if the Tribunal had given proper, genuine and realistic consideration to the psychological impact that separation from the appellant would have on his child, it may have reached a different conclusion. 17 The primary judge rejected that contention. In order to put his Honour's reasons in context, it is necessary to note the following paragraphs from the Tribunal's Decision Record. 18 At [80], the Tribunal said: 80. In relation to Mr Singh's biological child, the Tribunal has proceeded on a worst case premise that if his wife's pending visa application is approved, there is the potential at least that she and her child will remain in Australia. The Tribunal accepts that Mr Singh's wife is suffering depressive symptoms as a first-time mother, while concurrently dealing with the prolonged uncertainty surrounding Mr Singh's visa status. Both she and her child are reliant on Mr Singh and Mr Singh's sister. Under such circumstances, Mr Singh's repatriation would be adverse to the child's best interests, including by losing the financial, emotional and practical support Mr Singh could provide. Maintaining a close father-child relationship would also be very difficult if Mr Singh was returned to India. Alternatives to physical contact are clearly suboptimal. If on the other hand it were still the intention of Mr Singh's wife that she and her child accompany Mr Singh back to India, a direct parental relationship by both parents could be maintained. 19 At [82] - [83], it said: 82. Notwithstanding the uncertainty regarding the visa status of Mr Singh's wife and child, the intentions of Mr Singh's wife in the event that Mr Singh was repatriated, and the extent to which Mr Singh's brother-in-law will remain engaged with his children after separating from Mr Singh's sister last May, the Tribunal accepts it is in the best interests of Mr Singh's biological child and his nephews that he remains in Australia. 83. The Tribunal places substantial weight on this primary consideration in favour of not exercising the discretion to cancel Mr Singh's visa. 20 At [127], the Tribunal said: 127. Notwithstanding the uncertainty surrounding the visa status of Mr Singh's wife and child, and the extent to which his former brother-in-law will continue to perform a parental role for Mr Singh's nephews, the Tribunal concludes it is in the Best interests of children in this matter for Mr Singh to remain in Australia. The Tribunal places substantial weight on this primary consideration in favour of not exercising the discretion to cancel his visa. (Emphasis in original.) 21 At [129], the Tribunal said: 129. Having examined the factors for and against visa cancellation individually and cumulatively, the weight of evidence supports a finding that the discretion under section 501(2) of the Act to cancel Mr Singh's visa should be exercised. That is because the primary considerations 'Protection of the Australian community' and 'Expectations of the Australian community' weigh substantially against Mr Singh's application. These outweigh the collective weight of the primary consideration 'Best interests of minor children in Australia,' which weighs substantially in Mr Singh's favour, 'Strength, nature and duration of ties,' which weighs moderately in Mr Singh's favour, and 'Extent of Impediments if removed,' which weighs slightly in favour of Mr Singh. 22 The primary judge gave three reasons for rejecting this ground of review: 70. First, Ms McKinnon's letter was primarily directed to the effect on the applicant's wife of her separation from the applicant, the isolation she has suffered as a result of his detention, her postnatal depression, and the effect those matters are likely to have on their child. Those matters were considered by the Tribunal. The Tribunal accepted (at [80]) that the applicant's wife was suffering from postnatal depression while concurrently dealing with the prolonged uncertainty surrounding the applicant's visa status. It accepted that cancellation of the applicant's visa would "be adverse to the child's best interests including by losing the financial, emotional and practical support [the applicant) could provide". Importantly, it accepted (at [82]-[83] and [127]) that it is in the best interests of the applicant's child that the applicant remains in Australia and placed "substantial weight" on that primary consideration in favour of not exercising the discretion to cancel the applicant's visa. 71. Second, it is not appropriate to infer that the Tribunal overlooked Ms McKinnon's letter or did not properly take it into account when in its reasons the Tribunal specifically noted (at 24) that the letter was in evidence, briefly summarised the letter, and noted (at [80]) that the applicant's wife is "suffering depressive symptoms as a first-time mother" which information came from the letter. The letter was a single page in over 1,000 pages of material filed in the Tribunal, and the applicant did not call Ms McKinnon to give evidence; he did not refer to the letter in submissions; and he placed no weight on the letter during the Tribunal hearing. It is appropriate to infer that the applicant's choice as to the conduct of his case and the material that he took the Tribunal to was reflected in the extent to which the Tribunal referred to the letter. The Tribunal was not required to refer in the reasons for decision to every piece of evidence and every contention made by an applicant: Carrascalao at [45]. 72. Third, if contrary to my view it is accepted that the Tribunal failed to give the matters set out in Ms McKinnon's letter proper, genuine and realistic consideration to the extent required by cl. 9.2(4) of Direction 79, the applicant failed to demonstrate that such an error was material in the sense that it deprived the applicant of a realistic possibility of a different outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] and [30] (Kiefel CJ, Gageler and Keane JJ). The Tribunal found that cancellation of the applicant's visa was not in the best interests of his young child and gave "substantial weight" to that factor in favour of not exercising the discretion to cancel the applicant's visa. But, having examined the factors for and against visa cancellation, the Tribunal concluded (at [129]) that the protection of the Australian community against a low but nevertheless real and unacceptable risk that the applicant would reoffend, and the expectations of the Australian community that has a "particularly low" tolerance for sexual crimes against children, outweighed the best interests of any minor children in Australia. If (contrary to my view) the Tribunal failed to give appropriate consideration to the letter, I am not persuaded that such a failure deprived the applicant of a realistic possibility of a different outcome.

The ground of appeal 23 In his notice of appeal, the appellant raised, in substance, three grounds, one of which was expressed as: The learned primary judge erred in concluding that Best interest of child. 24 The notice of appeal was prepared by the appellant as a self-represented litigant. He now has representation. Without objection from the Minister, the appeal was presented on the following reformulation of that ground: The learned primary judge erred in concluding that the Tribunal had properly considered the best interest of the child in accordance with cl 9.2(4) of Direction 79, when it had not. 25 The other two grounds in the notice of appeal were not pressed. 26 As reformulated, the single ground of appeal on which the appellant relies does not identify any error in the judgment below beyond the primary judge's ultimate conclusion that the Tribunal did not err in its application of cl 9.2(4)(d) of Direction 79. 27 The appellant's case on appeal is, substantially, a repetition of the case he advanced before the primary judge in relation to the application of cl 9.2(4)(d) of Direction 79.

The appellant's submissions 28 The appellant submits that the Tribunal purported to engage with cl 9.2(4)(d) in [80] of its Decision Record (quoted above) but did not give the matter proper, genuine and realistic consideration or engage in an active intellectual process with it. He submits that Ms McKinnon's letter bears directly on the consideration of cl 9.2(4)(d), expressing concern about the impact of the appellant's wife's severe post-natal depression on their daughter - a matter which, the appellant submits, expressed Ms McKinnon's "real concerns". 29 The appellant submits that the recognition of these concerns is absent from the Tribunal's summary of the letter, which is found at [24(f)] of the Decision Record, expressed as follows: (f) An undated letter from a nurse addressed to 'whom it may concern,' requesting leniency in Mr Singh's appeal. The nurse was not called as a witness. The letter refers to three visits with Mr Singh's wife and child on unspecified dates to address issues she was experiencing as an 'isolated first-time mother whose husband is currently in detention with an expired visa.' Reference is also made to Mr Singh's wife suffering depression as a result of her husband's detention and that she is on a 'bridging visa with no income and an uncertain future;' 30 We note, however, that, in providing this summary, the Tribunal recorded that the appellant's legal representative had lodged documents prior to the Tribunal hearing being held, many of which were not even referred to during the hearing. The Tribunal recorded that, even though invited to do so, the appellant's legal representative did not tender these documents. Moreover, he merely submitted that it was "for the Tribunal to consider what regard, if any, should be had to them". These documents included Ms McKinnon's letter. That said, the Tribunal recorded that Ms McKinnon's letter had been taken into evidence and marked as an exhibit. 31 The Tribunal also recorded that it had taken into evidence an unsigned and undated statutory declaration from the appellant's wife. We were taken to part of that document in oral submissions. Having referred to the fact that she was suffering from post-natal depression and was consulting a psychologist, the appellant's wife said: 20. They accepted my request for free sessions. It is a very difficult time for me because I am unable to take care of my daughter properly without my husband in such situations. My daughter really require his father because as MCH nurse advised me that [the appellant's daughter] can be depressed if she does not live in a happy and healthy family environment. 21. Also, I really require physical, financial and social changes, caring and supportive environments for emotional adjustment. I need proper rest with the medication which is prescription by doctor while I am breastfeeding [the appellant's daughter]. I am struggling with my parent responsibilities and sometimes feel that I am not a good mother. It made me so stressed. Only, my husband can help in this serious situation in our life. 22. Galjinder is responsible for not only about our safety, but also our happiness and wellbeing. He is a loving caring father and a responsible parent. His support and guidance are what got me through the toughest of times and are what still keeps me going today. Not a day goes by that I don't talk to him or my daughter see him. Only I can feel the loss my daughter is bearing that his father is not there with her. I try to make her comfortable and loving but there is a space which nobody can fill in a family unit and it is only for a father. 32 In oral submissions, we were also taken to the following paragraph in an undated and unsigned statutory declaration by the appellant, which was also before the Tribunal: 11. My wife … is going through a difficult time as she is experiencing postnatal depression and on medication. She is visiting regular medical professionals but I believe she needs good family environment and positive surrounding. But, it is impossible until I am not with her. She is caring [the appellant's daughter] alone mostly. But, it's getting very hard with alone taking care of [the appellant's daughter] with no income support. My main concern is also about my wife's medication. She needs a proper rest with medication which she is unable to do. In this way, I want to stay with my daughter and support my wife. I want to help her in sleep, transition to proper bottle feed, bath, cook for her, change nappies and play with [the appellant's daughter] and make her calm and comfortable in the short term. In the long term, I want to work hard so that my daughter can have good education in future. If released from detention, I would like to give her good family environment for her overall development. 33 The nub of the appellant's appeal is expressed in his written submissions, as follows: 22. … the Tribunal did not consider the claim and/ or evidence that separation would have a detrimental impact on the Appellant's child because the child's mother had post-natal depression and the Appellant's absence was causative of the post-natal depression. The Tribunal instead described "depressive symptoms as a first-time mother while concurrently dealing with the prolonged uncertainty surrounding Mr Singh's visa status" which is conceptually not the same as post-natal depression caused or exacerbated by the Appellant's absence and the consequential detriment of the mother's ill health upon [the appellant's daughters'] critical stage of development. 23. The Tribunal said at [80], "Under such circumstances, Mr Singh's repatriation would be adverse to the child's best interests, including by losing the financial, emotional and practical support Mr Singh could provide." The Tribunal did not deal with the claim that the child's mental health and developing mind was at risk due to the mother' post-natal depression and stress or that [the appellant's wife's] Edenborough Post Natal Depression Scale score of 21 was in the "severe depression" range, or that [the appellant's daughter] is already showing signs of anxiety. 24. Direction 79 required the Tribunal to consider the "likely effect that any separation from the non-citizen would have on the child. Nurse McKinnon's letter evidenced that the likely effect of the separation was post-natal depression of the mother which would have a detrimental effect on the child's mental health and developing mind at this crucial state of development. The Tribunal therefore did not consider the impact of the child's development or mental health of repatriation of and consequential separation from her father. 34 Later in his written submissions, the appellant submits that the Tribunal had "missed the point", which was that the absence of the appellant was causative of his wife's post-natal depression and therefore detrimental to the child, and that the child's development and mental health would likely be negatively impacted by the separation. In oral submissions, the appellant submitted that Ms McKinnon's letter "should not have been lost in the forest". 35 The appellant accepts that, notwithstanding these matters, the Tribunal did, in fact, place substantial weight on the best interests of the child as "a factor in favour of the appellant" - meaning that this was a primary consideration in favour of not exercising the discretion to cancel the appellant's visa, as the Tribunal said at [127]. The appellant argues, however, that had the Tribunal "properly considered" the effects of his removal on his child, it might have placed "even more weight" on this consideration than it did.

Analysis 36 The appellant's submissions overstate the purport of Ms McKinnon's letter. We do not accept that Ms McKinnon's "real concerns" had the limited focus on which the appellant relies. This is made clear in Ms McKinnon's stated purpose in writing the letter: see the emphasised passage quoted at [13] above. 37 Ms McKinnon did not give evidence before the Tribunal. The circumstances in which the letter came to be written, and the purpose for which it was written, are not explained other than through the letter's own terms. And, as we have recorded, no assistance appears to have been given to the Tribunal in understanding the significance which the appellant himself sought to place on the letter, or on any particular part of it, in relation to his application for review. As the Tribunal recorded, and as the primary judge recognised, the letter was but one document amongst a large body of documentary material and the appellant's legal representative had simply put documents before the Tribunal, leaving it to the Tribunal to consider for itself what regard, if any, it should place on them. 38 It is tolerably clear from the passage we have quoted at [13] above that the letter was directed to supporting the appellant's wife - in particular, her emotional state and parenting needs. As the letter explains, this would also benefit the appellant's daughter. We think the primary judge correctly captured the essence of the letter when he said (at [70]) that it was primarily directed to the effect on the appellant's wife of her separation from him, the isolation she suffered as a result of his detention, her post-natal depression, and the effect that these matters were likely to have on their child. The letter had a broader focus than the one for which the appellant contends. 39 It is not in question that the Tribunal considered the letter. As the primary judge noted, it was specifically referenced in the Tribunal's Decision Record. It is also clear that the Tribunal understood that the letter was concerned with the appellant's wife's post-natal depression. The Tribunal proceeded on the basis that this depression was a result of her separation from the appellant. This understanding was presumably based on the passage we have quoted at [14] above in which Ms McKinnon recorded that the appellant's wife identified her emotional state as directly resulting from the appellant's detention, taken with the statements made by the appellant's wife in the unsigned statutory declaration quoted at [31] above. 40 The appellant's case is that because the Tribunal did not specifically refer to that part of Ms McKinnon's letter quoted at [15] above concerning the impact that maternal depression and stress can have on an infant's mental health and developing mind, it can be taken that it did not give proper, genuine and realistic consideration to the child's best interests, or engage in an active intellectual process on that matter. 41 Like the primary judge, we do not accept that submission. We do not think that the Tribunal's summary identification of Ms McKinnon's letter in [24(f)] of its Decision Record can be taken as representing the only matters to which the Tribunal had regard in relation to the letter's contents. The Tribunal's reasons persuasively indicate to the contrary. At [80] of its Decision Record, the Tribunal found that both the appellant's wife and their child were reliant on the appellant. It was in this context - recognising that both were reliant - that the Tribunal then found: Under such circumstances, Mr Singh's repatriation would be adverse to the child's best interests, including by losing the financial, emotional and practical support Mr Singh could provide. (Emphasis added.) 42 In making this finding, it is tolerably clear that the Tribunal was addressing the child's best interests by reference to the financial, emotional and practical support that would be denied to both wife and child should the appellant be repatriated to India, leaving them to remain in Australia. In other words, the Tribunal did not ignore the fact that the child's interests would be affected indirectly by denying the financial, emotional and practical support that the appellant could provide to his wife. We do not think that this part of the Tribunal's reasons can be read fairly and sensibly otherwise. 43 So understood, the appellant's submission really resolves to a criticism about the way in which the Tribunal expressed its reasons. In the absence of a properly articulated submission having been made to it, directed to the particular part of Ms McKinnon's letter on which the appellant now relies, it is difficult to infer, simply by the way it chose to express its reasons, that the Tribunal did not give proper, genuine and realistic consideration to the child's best interests or engage in an active intellectual process on that matter for the particular reason that the appellant now advances. As we have said, the Tribunal's reasons persuasively indicate to the contrary. 44 For these reasons, we are not persuaded that the primary judge erred in the conclusion to which he came. 45 Having reached that conclusion, it is not necessary for us to consider the third reason why the primary judge rejected the appellant's case - namely, that if the Tribunal committed the error which the appellant ascribes to it, that error was not material in the sense that it did not deprive the appellant of a realistic possibility of a different outcome. Materiality is essential to the existence of jurisdictional error. It is a question of fact on which, here, the appellant bears the onus of proof: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] per Bell, Gageler and Keane JJ. 46 The appellant's ground of appeal does not challenge the correctness of the primary judge's finding on materiality, although he did advance the submission we have recorded at [35] above, and the parties engaged on that issue in oral submissions. Apart from asserting the possibility that the Tribunal might have placed even more weight on the interests of the child had it not committed the asserted error, the appellant has not identified how, he says, the primary judge erred in the finding of fact he made on this question. We are not persuaded that simply by speculating that a different outcome might have been reached by the Tribunal, the appellant has demonstrated error on the part of the primary judge. We are satisfied that the finding to which the primary judge came was open to him, having regard to the balancing exercise described by the Tribunal at [129] of its Decision Record: see [21] above.

Disposition 47 The appeal should be dismissed. The appellant should pay the Minister's costs. 48 The Court wishes to record its appreciation for the assistance provided by Ms Costello QC who appeared on behalf of the appellant on a pro bono referral. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Yates, Banks-Smith and Anderson.