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

XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2022] FCAFC 74 - FCAFC 2022 case summary — Zoe

BACKGROUND 3 The appellant is a citizen of Lebanon who arrived in Australia on a student visa in March 2015, when he was 22 years old. In May 2016, the appellant met an Australian citizen, Ms A, and they were married on 4 October 2016. Ms A had a (then) one year old daughter from a previous relationship. The appellant and Ms A had two children together: a son, born in 2018 and a daughter, born in 2019. All three children are Australian citizens and are the minor children referred to in the analysis below. 4 On 24 October 2018, the appellant was granted a Partner (Residence) (Subclass 801) visa. 5 The appellant has criminal convictions arising out of two incidents of domestic violence. The first occurred on 31 December 2017, when the appellant was in the company of his wife and her sister, Ms B, and Ms B's husband in the backyard of a residence shared by the appellant and Ms A. The appellant and Ms A had an argument, and he picked up a child-sized plastic chair and threw it in the direction of Ms A, missing her. He also slapped his sister-in-law, Ms B, in the face. 6 On 1 January 2018, as a result of an application by the New South Wales Police, the Blacktown Local Court granted a Provisional Apprehended Domestic Violence Order (ADVO) against the appellant and in favour of Ms B, "or anyone she has a domestic relationship with". The appellant later pleaded guilty to two charges of common assault and was given a 12-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 7 The second incident of domestic violence occurred on 16 November 2018, also at the residence shared by the appellant and Ms A. At that time the appellant and Ms A were living together with Ms A's (then) three year old daughter, and their five month old son. Ms A, who was then six weeks pregnant with their daughter, complained of breathing difficulties and the appellant refused to take her to the doctor. This led to an argument and Ms A attempted to leave the residence but was followed by the appellant who assaulted her a number of times, dragging her by the arm which caused bruising, slapping her, and grabbing her by the throat. Their five month old son awoke and the appellant and Ms A argued about who would comfort him. Ms A again tried to leave and the appellant grabbed her throat and said "Go to your son". 8 On 27 November 2018, the appellant was convicted of assault occasioning actual bodily harm and five counts of common assault, and he was sentenced to a total term of two years imprisonment with a non-parole period of 14 months. The previous good behaviour bond was revoked and the appellant was resentenced and received a community corrections order for 18 months. A final ADVO was also made in favour of Ms A for three years. This incident also breached the previous ADVO made in favour of Ms B, because of her domestic relationship with Ms A. 9 On 23 January 2019, after the appellant lodged an appeal against the severity of the sentence, he was granted bail. On 6 March 2019, the sentence of imprisonment was varied by the New South Wales District Court to an aggregate term of imprisonment of 18 months, with a non-parole period of nine months. 10 On 27 March 2019, the appellant's visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test because he had a "substantial criminal record" as defined in ss 501(6)(a) and 7(c) of the Act. 11 The appellant, through his solicitor, made numerous representations to the Minister seeking the revocation of the visa cancellation decision. These included five representations from Ms A in which she repeatedly begged that the cancellation be revoked, for her sake, because she could not survive emotionally and financially without the appellant, and for the sake of the three children, whom she said needed the appellant to be present as their father. 12 The appellant's solicitor also provided a questionnaire about the appellant completed by Ms B, who had been the victim of the slapping incident on 31 December 2017. Ms B also provided a handwritten letter referring to that incident, in which she made it clear that she had forgiven the appellant and wanted him to come back home. 13 On 29 July 2020, a delegate of the Minister decided not to revoke the cancellation of the appellant's visa. 14 On 4 August 2020, the appellant applied to the Tribunal for review of the delegate's decision. 15 In her evidence during the hearing before the Tribunal, Ms A emphasised that she had forgiven the appellant. For example, when pressed by the Tribunal about how she now feels, with the appellant having physically assaulted her, Ms A said "But I've moved past that", adding that the appellant had also changed. 16 In closing submissions before the Tribunal the appellant's counsel emphasised that both Ms A and Ms B wanted the appellant to remain in Australia. 17 On 23 October 2020, the Tribunal delivered its Decision, affirming the decision of the Minister's delegate to not revoke the cancellation of the appellant's visa.

[4]

LEGAL FRAMEWORK 18 Section 501CA(4) of the Act provided: (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. 19 As noted above, the appellant's visa was cancelled on 27 May 2019 and, as the appellant failed the character test, the only basis for a favourable exercise of the discretion in s 501CA(4) of the Act was for the Minister (or the Minister's delegate) to be satisfied that there was "another reason" to revoke the cancellation decision. 20 Section 499 of the Act enables the Minister to provide written directions. Relevantly, Ministerial Direction No. 79 provided directions concerning the exercise of the discretion to revoke the mandatory cancellation of a visa under s 501CA of the Act. 21 In particular: (1) paragraph 7(1)(b) of the Direction provided that decision-makers must take into account the considerations in Part C of the Direction in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked; and (2) paragraph 8(1) of the Direction provided that decision-makers must take into account the primary and other considerations relevant to the individual case. Paragraph 8(4) of the Direction provided that primary considerations should generally be given greater weight than the other considerations. 22 Paragraph 13, within Part C of the Direction, provided for three primary considerations including, at paragraph 13.2, the best interests of minor children in Australia affected by the decision. 23 Paragraph 13.2(1) and (3) required decision-makers to determine whether revocation was in the best interests of each child. Paragraph 13.2(4) provided that in considering the best interests of a child certain factors must be considered where relevant, including 13.2(4)(a), which provided: The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact) 24 Paragraph 14, within Part C of the Direction, provided for a series of other considerations. It provided in so far as is presently relevant: (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to): … (b) Strength, nature and duration of ties; … (d) Impact on victims; … 25 Paragraph 14.2 expanded on the concept of "Strength, nature and duration of ties" and provided: Strength, nature and duration of ties (1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to: a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community. b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non- revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely). 26 Paragraph 14.4 expanded on the concept of "Impact on victims" and provided: Impact on victims (1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

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THE TRIBUNAL'S DECISION 27 The Tribunal identified that as the appellant failed the character test, the issue for determination was whether there was another reason why the cancellation of his visa should be revoked. 28 The Tribunal noted that it was bound to comply with the Direction and identified the salient parts of the Direction including paragraphs 7(1), 8(1) and Part C. 29 The Tribunal then set out in some detail the factual background, before addressing the three primary considerations identified in paragraph 13 of the Direction. 30 Relevantly to this appeal, the Tribunal considered the best interests of minor children at D[157]-[190]. In doing so, the Tribunal: (1) identified at D[158] that the Direction sets out a number of factors to be taken into account with respect to the best interests of minors in Australia including: … the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); (2) considered the evidence before it relevant to the best interests of the minor children; (3) in the course of doing so, stated at D[165]: The Applicant has spent significant portions of these children's lives absent from the family home. I must allocate less weight when there have been long periods of absence or limited meaningful contact. I acknowledge that before the pandemic, the children were regularly visiting the Applicant and spending significant time with him. Since visits were cancelled, they communicate remotely. Still, he has not had a substantial physical presence in the lives of Child X or Child Y for two years or ever in the life of Child Z. (emphasis added); (4) having considered the evidence, concluded at D[184] and D[190] that the best interests of the minor children weighed moderately in favour of the revocation of the cancellation of the appellant's visa. 31 After considering the primary considerations, the Tribunal then turned to the other considerations listed at paragraph 14 of the Direction. Relevantly to this appeal, the Tribunal considered: (1) "(b) the strength, nature and duration of ties" and as part of that consideration stated at D[201]: The Applicant's ties to his three children and the impact on them is discussed under Primary Consideration B and I take those matters into account. The Applicant and his wife love each other although their relationship is a relatively short one and has been interrupted by his incarceration for offending against her and by the most recent ADVO. She feels emotionally dependent on him, and she feels dependent on him to provide the lifestyle she wants for herself and her children. I have deliberately used the word "feels" because Ms A's financial dependence on the Applicant is a choice she has made. There is no reliable evidence of any impediment to Ms A undertaking gainful employment. Indeed, she said she did not want to work. The impact of non-revocation on the Applicant's biological children who will grow up without their father, his step-daughter who will not have the Applicant as a father figure in her life, and Ms A who will be separated from her husband warrants significant weight according to this Other Consideration.; (2) "(d) Impact on victims" and stated at D[209]: This Other Consideration (d) requires a decision-maker to assess the impact of decision not to revoke on members of the Australian community, including victims of the non-citizens criminal behaviour, and the family members of the victim or victims where that information is available and is the non-citizen being considered for revocation has been afforded procedural fairness. Both of the Applicant's victims have indicated that they will be adversely impacted by non-revocation of the cancellation of the Applicant's visa. It was contended on behalf of the Applicant that this Other Consideration therefore favours him. This is one possible interpretation of the Direction. However, the fact that the Direction requires the non-citizen to be afforded procedural fairness indicates that this consideration contemplates the allocation of weight against the non-citizen. In any event, I have accounted for the impact of non-revocation on the victims of the Applicant's offending (and on Ms A's children) in Other Consideration (b). Accordingly, I do not allocate any weight under this Other Consideration.

[7]

Ground 3 33 Ground 3 was in the following form: In determining the weight to be given to the best interests of minor children affected by its decision, the Tribunal at [165] erroneously considered itself bound by Direction No 79 to allocate less weight to this factor where there have been long periods of absence or limited meaningful contact between the applicant and the minor children when, in fact, Direction 79 at par. 9.2(4)(a) merely stated that less weight should "generally" be given in such circumstances. 34 The primary judge treated the reference in Ground 3 to "par. 9.2(4)(a)" as a reference to paragraph 13.2(4)(a) of the Direction (J[81]). It is common ground that he was correct in doing so. 35 The primary judge noted (at J[82]-[83]) that Ground 3 is based upon the tension between (1) paragraph 13.2(4)(a) of the Direction which states that less weight should generally be given when there have been long periods of absence or limited meaningful contact between the appellant and the minor children and (2) the Tribunal's statement at D[165] that it must allocate less weight when there have been long periods of absence or limited meaningful contact. 36 The primary judge noted that non-compliance with the Direction is capable of being a jurisdictional error (J[85]). However, his Honour was not persuaded that on a fair reading of the Tribunal's reasons it fell into error in the manner suggested in Ground 3, for the following reasons: (1) the Tribunal correctly summarised paragraph 13.2(4)(a) of the Direction at D[158], which points away from an inference that the Tribunal misunderstood those requirements (J[88]); (2) the Tribunal's consideration in relation to the best interests of the minor children indicated that it weighed in the balance various competing considerations, rather than considering itself bound to give less weight to the nature and duration of the relationship between the appellant and the three children (J[89]); (3) the Tribunal considered the best interests of the children at length (J[89]-[91]); (4) the Tribunal was satisfied that: (a) the strength of the appellant's familial ties to Ms A and the three minor children required the allocation of significant weight under paragraph 14.2(1)(b) (J[92]); (b) overall, the strength, duration and nature of the appellant's ties to the Australian community weighed heavily in favour of revocation (J[92]); (5) notwithstanding that the Tribunal gave significant weight to the nature and duration of the appellant's ties to the three minor children it nevertheless decided, on balance, that the visa cancellation should not be revoked (J[93]); and (6) in these circumstances the use of the word "must" at D[165] should be regarded as loose language, with which the Court is not concerned (J[94]). 37 At J[94], the primary judge stated his conclusion: On a fair reading of the Tribunal's reasons, not with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ)), I am not satisfied that the Tribunal proceeded on the basis that it must give less weight to the best interests of the children because of their limited contact with the applicant. In my view it concluded, in the particular circumstances of the case, that it was appropriate to give less weight to this consideration because of their limited contact. The Tribunal balanced the nature and the duration of the applicant's ties to the three children, including that he loved all three children and he had a generally positive role in their lives, against its view that the applicant had had "limited involvement in their lives". It considered this against the behaviour for which the applicant was convicted, the anger that such behaviour reflects, and the fact that the applicant's ability to play a "positive parental role" was partly contingent upon him abstaining from similar offending conduct in the future. The Tribunal's use of the word "must" at [165] is properly to be seen as loose language, and the Court is not concerned with that: Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287 (Neaves, French J (as his Honour then was) and Cooper J).

[8]

Ground 4 38 Ground 4 was in the following form: The Tribunal failed to carry out the task of reviewing the primary decision by failing to consider or make findings on an issue raised by the evidence and submissions; namely, the impact of the applicant's removal on his spouse and sister-in-law as victims of the applicant. 39 The primary judge accepted that the evidence before the Tribunal showed that the appellant's victims, Ms A and Ms B, had forgiven him for his assaults upon them and that they no longer fear him (J[105]). However, his Honour was not persuaded that the Tribunal failed to consider and take that evidence into account. His Honour's reasons were as follows: (1) it was plain, from numerous points of its reasons, that the Tribunal recognised that Ms A and Ms B were victims of the appellant (J[107]); (2) it was apparent from various points of the Tribunal's reasons that the Tribunal recognised that Ms A had forgiven the appellant for his assaults and wanted him to remain in Australia, including where the Tribunal noted: (a) at D[106], that Ms A said she knew that the appellant regrets his mistakes and is very sorry, and he will never repeat them; (b) at D[107], that Ms A had been speaking to the appellant by telephone daily while he was in prison; (c) at D[108], that Ms A described the appellant in very positive terms including that he had a strong sense of duty, as a kind person, and "a good man inside and out"; and (d) at D[109], that Ms A had seen the appellant change as a person and could see how willing he was to become a better father and an even better husband (J[108]); (3) it was also clear that the Tribunal recognised that Ms B had forgiven the appellant for his assaults. In particular: (a) at D[111] the Tribunal referred to the letter of support in which Ms B said the appellant is like a role model to her. In that letter Ms B also said that she and the appellant are "like brother and sister", that we all make mistakes, and that she had seen a "massive change" in the way the appellant acts and talks; and (b) at D[202] the Tribunal noted the appellant's evidence that he and Ms B had "sorted things out" and that Ms B looks up to him like a brother and he cares for her as if she is his little sister (J[109]); and (4) a fair reading of the Tribunal's reasons indicates that it gave consideration to the evidence of Ms A and Ms B as victims of the appellant (J[110]). 40 At J[110]-[112], the primary judge stated his conclusions as follows: [110] On a fair reading of the reasons I consider the Tribunal gave consideration to the evidence of Ms A and Ms B as victims of the applicant. At [209], the Tribunal said that "[b]oth of the Applicant's victims have indicated they will be adversely impacted by the non-revocation of the cancellation of the Applicants visa", thereby recognising their evidence as victims. The Tribunal then said that, in effect, there was no requirement to consider the impact on Ms A and Ms B as victims under "Other Consideration (d)" because it had already accounted for that evidence in its consideration of the applicant's "strength, nature and duration of ties" in relation to "Other Consideration (b)"; which consideration it concluded "weighs heavily in favour of revocation". [111] As Perram J noted in Bale at [26], the Tribunal did not need to consider the impact of non- revocation on Ms A and Ms B, as victims, repetitiously: see also Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40] (Tracey J); RZSN v Minister for Home Affairs [2019] FCA 1731 at [67] (Anderson J); WQRJ the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [78] (Derrington J). On a fair reading of the Tribunal's decision, I do not accept that the Tribunal only considered and dealt with Ms A's claims as a wife, and Ms B's claim as a sister in law, rather than also considering their claims as victims. That is a strained reading of the decision in which the Tribunal made it abundantly clear that it understood that Ms A and Ms B had reconciled with the applicant since his assaults upon them. [112] It is appropriate to dismiss this ground.

[10]

Submissions 42 The essence of the appellant's submissions is as follows: (1) the Tribunal was required by the Direction not only to take into account each of the factors referred to in paragraphs 13 and 14 of the Direction, but also to weigh each of these factors, where relevant, against each other, in a balancing exercise so as to be able to come to a conclusion as to whether there was "another reason" why the cancellation of the appellant's visa ought to have been revoked: cf Minister for Immigration v Lesianawai (2014) 227 FCR 562 at [31] and [41] (Buchanan J), [87] (Perry J), and [137] (Gleeson J); (2) it was critical to this process that the correct weight be given to the competing factors, and it was not enough for the Tribunal to refer to and even make findings on one factor, if it did so in a way which allocated that factor an incorrect weight; (3) thus, the primary judge erred by finding that a reason why there was no error in relation to the best interests of the three minor children was because this factor had been considered and allocated heavy weight in relation to the "Strength, nature and duration of ties" factor. That is an other consideration which, under paragraph 8.1(4) of the Direction, will generally carry less weight than a primary consideration; (4) the words used by the Tribunal at D[165], that it "must allocate less weight" to the interests of the children when there have been long periods of absence or limited meaningful contact with the non-citizen parent, plainly misstated paragraph 13.2(4)(a) of the Direction, which stated that "Less weight should generally be given" in such circumstances; and (5) the primary judge at J[89] considered that another reason why there was no error in the treatment of the best interests of the appellant's three minor children was the Tribunal's lengthy consideration of these interests, which showed that it had weighed and balanced these competing considerations. However, it does not necessarily follow that the correct weight was given to the best interests of the minor children, particularly in view of the Tribunal's incorrect assertion that it was bound to give this factor less weight because of the long periods of absence or limited meaningful contact. The Court should infer from the finding that this factor was given only moderate weight that the Tribunal discounted this factor because it felt constrained by its misconstruction of paragraph 13.2(4)(a). 43 The Minister relied primarily upon the reasoning of the primary judge. The Minister also submitted, with reference to D[179]-[184] and J[90], that the Tribunal ultimately gave moderate weight to the best interests of the minor children because of the limited role that the appellant had played in their lives and the likelihood of him playing a positive parental role in their lives was contingent on him not further offending against Ms A.

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Consideration 44 It is clear that the Tribunal gave extensive consideration to the best interests of the minor children in D[157]-[190] before reaching the conclusion that the best interests of the children weighed moderately in favour of the revocation of the cancellation of the appellant's visa. 45 As part of that process, the Tribunal identified paragraph 13.2(4)(a) of the Direction as a matter it had to consider. It correctly identified at D[158] that the nature and duration of the relationship between the minor children and the appellant should generally be given less weight where there have been long periods of absence or limited meaningful contact but erroneously stated at D[165] that the nature and duration of the relationship between the minor children and the appellant must be given less weight. 46 If attention were paid only to D[165] of the Tribunal's decision, a conclusion that the Tribunal operated on the incorrect premise that it was compelled to allocate less weight to the nature and duration of the relationship between the minor children and the appellant where there have been long periods of absence or limited meaningful contact would be readily available. However, analysis of the Tribunal's decision requires consideration of that decision as a whole. 47 We discern no error in the reasoning of the primary judge or in his conclusion that when the Tribunal's decision is considered as a whole it is apparent that the Tribunal did not misapprehend that it was compelled to allocate less weight to the nature and duration of the relationship between the minor children and the appellant because there had been long periods of absence or limited meaningful contact between them. Further, and contrary to the appellant's submission, there is no basis for an inference that the allocation of moderate weight to this factor was the product of a misconstruction of paragraph 13.2(4)(a) rather than it being the product of the various matters considered by the Tribunal.

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (2)

Cases Cited (8)

Cited By (7)