Tkatschenko v Minister for Immigration and Multicultural Affairs

BACKGROUND

1. The relevant background may briefly be stated given the confines of the ground of review.
2. The Applicant is a citizen of Germany born in November 1993. He has been in Australia since June 2000, other than some brief periods of absence.
3. Between April 2011 and December 2021, the Applicant was convicted of approximately 21 offences.
4. His visa was first cancelled on 13 December 2017 under s 501(3A) of the Act on the basis that he failed the character test in s 501(6) of the Act. The reviewable decision was made by the delegate under s 501CA(4) of the Act on 24 August 2018. In November 2018, the Tribunal made a decision to revoke that cancellation, pursuant to s 501CA(4) of the Act.
5. On 9 May 2020, the Applicant committed the offence of "reckless wounding - in company - T1" and, on 10 December 2021, he was convicted by the District Court of New South Wales and sentenced to a term of imprisonment of three years and six months.
6. On 24 January 2022, a delegate of the Minister again cancelled the Applicant's visa, pursuant to s 501(3A) of the Act. The delegate was satisfied that the Applicant did not pass the character test (s 501(3A)(a)) and that the Applicant was serving a sentence of imprisonment on a full time basis (s 501(3A)(b)).
7. On 5 July 2023, a delegate of the Minister decided not to revoke the cancellation of the Applicant's visa, pursuant to s 501CA(4) of the Act. On 10 July 2023, the Applicant sought review of that non-revocation decision by the Tribunal. The Tribunal heard the application on 18 and 19 September 2023 and, on 27 September 2023, affirmed the delegate's decision.
8. The Applicant then instituted the present review.

LEGISLATIVE FRAMEWORK

1. Section 501(3A) of the Act provides: (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
2. I interpolate to note that it is common ground that the Applicant does not pass the character test.
3. Section 501CA(4) of the Act 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.
4. The statutory task required of the Tribunal in the present case, standing in the shoes of the delegate, was to assess whether there was "another reason" why the mandatory cancellation of the Applicant's visa should be revoked.
5. In exercising the power under s 501CA(4)(b)(ii) of the Act, the Tribunal was required, at the relevant time, to comply with "Direction No 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" (Direction 99), made on 23 January 2023 and issued under s 499 of the Act. Section 499 of the Act relevantly provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers.
6. Paragraph 5.2 of Direction 99 sets out the Principles that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the Primary Considerations (set out in paragraph 8) and the Other Considerations (set out in paragraph 9) in deciding whether to revoke a mandatory visa cancellation. Paragraph 7(2) of Direction 99 provides that the Primary Considerations should generally be given greater weight than the Other Considerations.
7. Paragraph 8 of Direction 99 sets out the five Primary Considerations that the decision maker is required to take into account:
8. protection of the Australian community from criminal or other serious conduct;
9. whether the conduct engaged in constituted family violence;
10. the strength, nature and duration of ties to Australia;
11. the best interests of minor children in Australia; and
12. expectations of the Australian community.
13. Paragraph 9 of Direction 99 sets out the Other Considerations, which relevantly include:
14. the legal consequences of the decision; and
15. the extent of impediments if removed.

The ground of review

1. The Applicant contends that the Tribunal failed "properly to weigh and balance the various considerations" under Direction 99 "so as to perform the evaluative task of being satisfied as to whether there is another reason to revoke cancellation. The Applicant relies principally on CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (Colvin, Stewart and Jackson JJ) and asserts that the Tribunal's decision is attended by a "CRNL category of error".
2. Paragraph [119] of the Tribunal's reasons is the focal point of the ground of review:
3. The Second Respondent (Tribunal) made a jurisdictional error by failing to perform its statutory function under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). a. The Tribunal found at paragraph 119 of its decision that certain primary considerations under the ministerial direction "weigh very heavily" against revocation of cancellation of the Applicant's visa; b. The Tribunal found at paragraph 119 of its decision that one primary consideration and certain other considerations under the ministerial direction "weigh in favour of revocation"; c. The Tribunal concluded at paragraph 119 of its decision that "[h]owever, the considerations weighing against revocation outweigh those favouring revocation" and concluded paragraph 120 of its decision that "[t]here is not another reason to revoke the mandatory cancellation decision"; d. In order to perform its statutory function, the Tribunal was obliged properly to weigh and balance the various considerations under the applicable ministerial direction, as well as any other matters, so as to perform the evaluative task of being satisfied as to whether there is another reason to revoke cancellation: CRNL v Minister for Immigration [2023] FCAFC 138 at [35], [41], [47], [43], [44]; VZWF v Minister for Immigration [2023] FCA 1160 at [6]; compare PGDX v Minister for Immigration [2023] FCA 1259 at [38]; e. The Tribunal failed to engage in the requisite weighing, balancing and evaluation in the present case.

CRNL

1. Before turning to the Tribunal's decision, I will address the Full Court's decision in CRNL.
2. Whether an error akin to that in CRNL is evident depends on careful consideration of the decision under review ⸻ the observations made by the Full Court are plainly enough in relation to the particular way in which the Tribunal in that case approached its statutory task as revealed by a fair reading of its reasons.
3. In CRNL, the miscarriage of the statutory task by the Tribunal had two components, both of which affected the Tribunal's approach to the balancing process directed to determining whether there was "another reason" why the visa cancellation should be revoked.
4. First, although the Tribunal identified and considered, in varying detail, each of the primary and other considerations mandated by the then relevant Direction with reference to the factual findings that it made on the evidence before it, it failed to evaluate and balance the different considerations in relation to each other in order to reach its ultimate conclusion (at [36] to [37]). The Full Court said, at [38], that the Tribunal's reasons were perfunctory and formulaic in that: …They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being "primary" considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was "another reason" to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as "strong", "significant", "considerable" or "moderate" (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
5. Earlier in similar vein, the Full Court stated, at [28], that: [C]ompliance with the Direction is not achieved by focussing upon individual considerations and attributing some form of "weight" to that consideration viewed in isolation. The real burden of the task to be undertaken by a decision-maker who must comply with the Direction is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together. A task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments. To undertake the task in that manner is not to comply with the Direction.
6. The Full Court concluded, at [44], that: The Tribunal must be taken at its word. What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed "another reason" why the cancellation should be revoked. That amounts to a failure to undertake the statutory task.
7. Secondly, notwithstanding that the Tribunal correctly acknowledged in its reasons that it was required to weigh all relevant considerations identified in the relevant Direction, that is, both Primary and Other Considerations, there was nothing in the dispositive reasoning of the Tribunal that demonstrated that the Tribunal had expressly gone through the process of considering each of the "other considerations" as part of the balancing exercise: at [43].
8. It is in that context that the single ground of review in the present proceeding is to be understood. The "CRNL category of error" relied upon by the Applicant is the first of the errors identified by the Full Court in CRNL, namely that the Tribunal in this case failed to evaluate the different considerations in relation to each other in the balancing exercise required to reach the ultimate conclusion.
9. The nature of the balancing exercise required was encapsulated by the Full Court in CRNL at [35]: The balancing process is directed to determining whether there is "another reason" why the visa cancellation should be revoked. It requires an identification of the matters that may constitute "another reason" and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute "another reason" capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.

The Tribunal's reasons

1. A fair reading of the reasons of the Tribunal in this case demonstrates that the error exposed in the Tribunal's reasons in CRNL is not evident in the present decision.

Identification of the issue to be determined and the statutory task required to be undertaken

1. At T[2], the Tribunal correctly identified "the issue to be decided": Both parties accept that the Applicant does not pass the character test (defined in section 501(6) of the Act) because he was sentenced to an aggregate term of imprisonment of three years and six months. Therefore, the issue to be decided is whether there is another reason why the cancellation decision should be revoked under section 501CA(4) of the Act, having regard to the considerations prescribed by 'Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA' (Direction 99).
2. The Tribunal correctly proceeded on the basis that the single issue to be decided was whether there was another reason why the cancellation decision should be revoked under s 501CA(4) of the Act and correctly noted that that issue was to be determined having regard to the considerations prescribed by Direction 99.
3. At T[3]-[4], the Tribunal elaborated on the relevance of Direction 99 to the task it had to undertake: Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in deciding whether to revoke the mandatory cancellation of a visa. Direction 99 requires that information and evidence from independent and authoritative sources should be given appropriate weight, and primary considerations should generally be given greater weight, although 'other considerations' should not necessarily be treated as secondary in all cases [Paragraph 7(1)-(2) of Direction 99; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[32]]. (Emphasis in original, footnote incorporated)
4. Pausing at this point, it is plain that the Tribunal correctly identified the task it was required to perform by reference to Direction 99. I now turn to consider whether having at the outset identified the task it had to perform, the Tribunal carried out that task correctly.

The Tribunal's approach to the statutory task

1. The Tribunal began by addressing seriatim each of the considerations articulated in Direction 99 that were relevant to its decision (T[15]-[118]). The Tribunal began with the Primary Considerations before moving to such of the Other Considerations that were relevant to the Applicant's circumstances. The Applicant does not challenge the Tribunal's evaluative analysis in relation to the individual considerations. Accordingly, for the purpose of these reasons, it is sufficient to summarise the conclusions drawn by the Tribunal in relation to each of the considerations that the Tribunal took into account in assessing whether there was another reason to revoke the cancellation of the Applicant's visa.

Protection of the Australian community

1. The Tribunal found this consideration to weigh against revocation (contrary to the Applicant's contention). In reaching this conclusion, the Tribunal gave the Applicant the benefit of affording to him a higher level of tolerance because he had lived in Australia for much of his life, including most of his formative years (T[76]-[77]).

Family violence

1. The Tribunal took into account that the Applicant had committed an act of family violence (as defined in Direction 99) against his former partner. The Tribunal considered the offence to be a serious offence, and observed that the Applicant's limited rehabilitative efforts had not addressed family violence. The Tribunal considered this consideration to weigh against revocation (T[78]-[82]).

Strength, nature and duration of ties to Australia

1. The Tribunal took into account that the Applicant had ties in Australia to his parents and a family friend, who he had known for 20 years, as well as his two children (T[83]-[88]). Further, that he had contributed to the Australian community by working during two periods (T[90]). The Tribunal treated this consideration as weighing in favour of revocation (T[91]).

Best interests of minor children

1. The Tribunal identified the best interests of the Applicant's two children as relevant to this consideration. The Tribunal considered the different circumstances pertaining to each of the Applicant's children, including the extent of his parental relationship with each of them. The Tribunal concluded for reasons it articulated that the best interests of Child 1 weighed slightly in favour of revocation (T[92]-[98]). In relation to Child 2, the Tribunal concluded that the best interests of Child 2 weighed in favour of revocation (T[99]-[102]).

Expectations of the Australian community

1. The Tribunal concluded that given the Applicant's past offending, the Australian community expected the Applicant to have his visa cancelled and to not remain in Australia. The Tribunal concluded that this consideration weighed against revocation (T[103]-[108]).

Legal consequences of the Tribunal's decision

1. The Tribunal took into account that the legal consequences of its decision would include a period of continued detention because the Applicant would be liable to be removed from Australia and, until that occurred, he would continue to be detained in migration detention (T[109]). This consideration weighed in favour of revocation (T[109]-[110]).

Extent of impediments if removed

1. Having taken into account the specific impediments and countervailing factors that the Applicant would face if removed to Germany, the Tribunal concluded that this consideration weighed in favour of revocation (T[111]-[118]).

The Tribunal's evaluative exercise

1. Having considered each of the relevant considerations in sequence and expressing a view as to whether each consideration weighed in favour of or against revocation, and if so, to what extent, the Tribunal then moved to evaluate whether in relative terms, taking into account each of the relevant considerations, there was an another reason to revoke the cancellation decision (T[119]) before reaching its conclusion (T[120]): [119] The primary considerations protection of the Australian community, family violence committed by the non-citizen and expectations of the Australian community weigh very heavily against revocation of the mandatory cancellation decision. The primary considerations, the strength, nature and duration of ties to Australia and best interests of minor children, and the other considerations legal consequences of the decision and extent of impediments if removed, weigh in favour of revocation. However, the considerations weighing against revocation outweigh those favouring revocation. [120] There is not another reason to revoke the mandatory cancellation decision.
2. At T[119], the Tribunal moved to looking at the competing weights of the considerations collectively, albeit in short form. The Tribunal noted that three of the Primary Considerations weighed very heavily against revocation whereas two of the Primary Considerations and two of the Other Considerations weighed in favour of revocation. Critically, the Tribunal then concluded that "the considerations weighing against revocation outweigh those favouring revocation". In the final sentence, the Tribunal evaluated the relative weights, and accordingly was driven to conclude that there was not another reason to revoke the mandatory cancellation decision (T[120]). Accordingly, the Tribunal affirmed the delegate's decision (T[121]).
3. In the present case, I am unable to accept that the dispositive reasoning of the Tribunal suffers from defects analogous to those that marred the Tribunal's decision in CRNL. The Tribunal correctly identified the issue to be decided (whether there was "another reason" why cancellation should be revoked, having regard to the considerations in Direction 99) (T[2]). It also correctly understood the guidance given by Direction 99 as to how the considerations should be weighed (T[4]). Having considered the relevant considerations sequentially, the Tribunal then moved to bring the considerations together as part of a single evaluation, in which it weighed them together and against each other. The Tribunal formed the view, and expressly stated, that the considerations against revocation outweighed those in favour of revocation. The Tribunal's reasons must be read fairly. When the Tribunal's reasons are read in a manner which is consistent with the High Court's observations in Ismail v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] HCA 2; 417 ALR 36 at [45] and [50], no jurisdictional error is established.
4. It is true that in undertaking the holistic and relative evaluation of the competing considerations at T[119] the Tribunal did not descend into granular detail as to why it was satisfied that the considerations pulling against revocation outweighed others that lent towards revocation. However, notwithstanding the short form in which T[119] is expressed, the Applicant has not established that the Tribunal's reasons, read fairly and as a whole, disclose jurisdictional error. That is particularly so when T[119] is read in the context of the whole of the Tribunal's reasons, including the Tribunal's identification of the relevant issue to be determined and the correct description of the statutory task including by reference to the requirements of Direction 99. This Court has repeatedly recognised that the "ultimate decision as to which relevant factors are more important (and thus which side of the line a case falls) is likely to be instinctive, and correspondingly unlikely to be explained in granular detail": Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 at [22] (Kennett J) citing Enichem ANIC Srl v Anti-Dumping Authority [1992] FCA 882; 39 FCR 458 at 469 (Hill J); see also BAE23 v Minister for Home Affairs [2023] FCA 1152 at [51] (Jackson J).
5. Here, the Tribunal did bring together the various considerations, weighing and balancing them together as part of its ultimate evaluation of whether there was another reason to revoke the mandatory cancellation. The applicant has not established jurisdictional error.
6. For completeness, I note that the brief oral submissions made by the Applicant in reply were in substance limited to a submission that went to the merits, specifically as to the weight afforded by the Tribunal to the consideration involving family violence. I do not intend to criticise the Applicant in this regard as I appreciate the difficulty he faced in appearing in person without legal assistance and in circumstances where he has so much at stake, but it is not necessary to recount this submission as it did not have any bearing on the ground of review.
7. The application for review will be dismissed with costs.

CONCLUSION

1. I will make orders in accordance with these reasons. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.