BRN20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 550
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BRN20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 550
File number: MLG 1292 of 2020 Judgment of: JUDGE GOSTENCNIK Date of judgment: 17 April 2025 Catchwords: MIGRATION – partner (class BS) (subclass 801) visa – review of two decisions of delegates of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – first decision concerned cancellation of the applicant’s visa pursuant to s 128 of the Migration Act 1958 (Cth) (Act) – second decision concerned non-revocation of the first decision pursuant to s 131 of the Act – judicial review – whether the delegates adopted an unintelligible interpretation of the Convention on the Rights of the Child (CRC) – whether the delegates incorrectly applied the best interests of the child principle in the CRC – whether delegate correctly identified whether cancellation of the applicant’s visa was in the best interests of the children – delegates’ reasoning was illogical or irrational – delegates’ reasoning attended by jurisdictional error – writ of certiorari issued Legislation: Migration Act 1958 (Cth) ss 116(1)(e)(ii), 128, 128(a)(ii), 131, 140, 477(1), 477(2)
Convention on the Rights of the Child arts 3(1), 9, 9(1)
Cases cited: AVJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1056
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, 289 FCR 21
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 207 ALR 12
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1259
Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30, 198 ALR 59
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submission/s: 7 March 2025 Date of hearing: 11 March 2025 Place: Melbourne Counsel for the Applicant: Mr A Aleksov Solicitors for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondent: Mr C McDermott Solicitors for the Respondent: Mills Oakley
Table of Corrections 29 April 2025 In paragraph 41, the phrase “and to remit the question whether the applicant’s visa should be cancelled under s 128 of the Act to the respondent for reconsideration according to law”, is omitted. ORDERS
MLG 1292 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRN20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
17 APRIL 2025
Amended pursuant to rr 17.05(2)(e) and (f) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) on 30 April 2025
THE COURT ORDERS THAT:
1.A writ of certiorariissue to quash the decision (Cancellation ID: C6ZWM2YNN, File Number: BCC2019/6781910) of a delegate of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made on 14 January 2020 cancelling the applicant’s Partner (Residence) (Class BS) (Subclass 801) Visa granted on 15 May 2017.
2.A writ of mandamus issue directed to the respondent requiring the respondent or a delegate of the respondent to determine, according to law, whether the applicant’s visa should be cancelled under s 128 of the Migration Act 1958 (Cth).3.The respondent pay the applicant’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Gostencnik
INTRODUCTION
By application lodged on 17 April 2020 and amended on 26 February 2025, the applicant seeks judicial review of two decisions of delegates of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made on 14 January and 16 March 2020 respectively. The application raises two issues. First, whether the delegates each adopted an unintelligible interpretation of the Convention on the Rights of the Child (CRC) and so acted illogically, irrationally or legally unreasonably. This is reflected in grounds 1 and 2 of the application. Second, whether the second delegate failed to consider the report of Associate Professor Freeman and so committed jurisdictional error. This is reflected in ground 3.
By the first decision made pursuant to s 128 of the Migration Act 1958 (Cth) (Act), the delegate cancelled the applicant’s Partner (Residence) (Class BS) (Subclass 801) Visa (Cancellation Decision): Court Book (CB) 18-CB25. The second delegate’s decision made under s 131 of the Act, declined to revoke the Cancellation Decision (Non-Revocation Decision): CB83-CB90.
That part of the judicial review application directed to the Cancellation Decision, was made outside of the 35-day period prescribed by s 477(1) of the Act. The applicant sought an order under s 477(2) to extend the 35-day period. The respondent did not oppose an order extending time. Although the delay was 62 days, which the applicant accepted was not insubstantial, I accept that the applicant’s pursuit of revocation of the Cancellation Decision administratively provides some acceptable explanation for the delay and no prejudice to the respondent was asserted. Nor is prejudice apparent. The sole ground of the amended application directed to the Cancellation Decision raises an arguable case of jurisdictional error. Taking these matters together, I was satisfied that it was necessary in the interests of the administration of justice to order that the 35-day period within which an application for judicial review of the Cancellation Decision may be made be extended to 17 April 2020. And I so ordered.
BACKGROUND
The applicant is a citizen of Taiwan who was granted a Partner visa on 15 May 2017: CB1-CB4. The sponsor for the applicant’s visa was the applicant’s partner (H): CB2.
The applicant first arrived in Australia in 1994, and thereafter, he was issued various visas, and he departed and returned to Australia on several occasions: CB6-CB8; CB22. The applicant last departed Australia on 15 December 2019. The applicant was offshore when the Cancellation Decision was made: CB6 and he remains offshore.
The applicant was in a domestic relationship with H – with whom he had 2 children. He was charged with unlawfully strangling, choking and suffocating H on 24 February 2019 without her consent. He was convicted of the offence on 15 November 2019: CB15. The facts underpinning the conviction are detailed in a Charge Sheet: CB10-CB12 and in an apology the applicant submitted to the District Court of Queensland: CB46-CB47 concerning his assault of H on 23 February 2019. He was sentenced to 18 months imprisonment which was suspended for 2 years: CB9. The applicant was also convicted on 5 December 2019 of breaching bail (between 6 March 2019 and 31 March 2019): CB15.
CANCELLATION DECISION
By email dated 14 January 2020, the applicant was issued with a Notice of Cancellation (Notice) by a delegate of the Minister, and a copy of the delegate’s decision record was attached: CB14-CB17; CB18-CB25, respectively. The decision record records that the delegate was satisfied, based on the earlier mentioned convictions, that the applicant’s presence in Australia would or might be a risk to the safety of H, and so was satisfied that there were grounds for cancelling the applicant’s visa under s 116(1)(e)(ii) of the Act: CB20.
The delegate next concluded that it was appropriate to cancel the applicant’s visa under s 128(a)(ii) of the Act without notice because:
(a)the applicant was outside Australia, and cancellation of his visa would not occur mid-transit;
(b)the applicant’s visa was being considered for cancellation because he might be a risk to an individual in Australia if he re-entered Australia, and if notified of the intention to consider cancellation, there was a risk he may respond to the Notice by travelling to Australia; and
(c)there were no secondary visas that would be consequently cancelled: CB21.
Finally, the delegate considered whether the applicant’s visa should be cancelled, noting:
(a)the applicant’s intention to reside in Australia permanently was congruent with the requirements of his partner visa;
(b)there was a temporary protection order in operation naming H and their children as aggrieved persons which imposed a strict no contact condition to protect them from the applicant’s behaviour towards them;
(c)there were no visa conditions imposed on the applicant’s visa;
(d)cancelling the applicant’s visa may cause the applicant financial and emotional hardship;
(e)cancellation grounds existed and there was no other information indicating the circumstances leading to the cancellation grounds were outside of the applicant’s control;
(f)there is no information of the applicant exhibiting adverse behaviour towards the Department;
(g)there are no consequential cancellations under s 140 of the Act;
(h)if the visa is cancelled, the applicant may be affected by Public Interest Criterion 4013 which may limit the grant of a further temporary visa;
(i)Australia is a signatory to the CRC and the delegate’s decision records the delegate gave primary consideration to the children’s best interests, noting:
i.the decision to cancel the applicant’s visa may cause the applicant to be geographically separated from his children which may be contrary to the principles of the CRC; and
ii.separation from physical access to their father may cause the children disruption and emotional hardship: CB21-CB24.
As to whether the cancellation action would breach Australia’s international obligations under the CRC, the delegate reasoned:
In considering the [applicant’s] present circumstances, I have given primary consideration to the [applicant’s] children and what is in her (sic) best interests. I acknowledge that the integrity of the family unit is an important consideration. Following visa cancellation, the [applicant] may not be permitted to return to Australia, and as such, the [applicant] may remain geographically separated from his children in Australia. I have considered the possibility this may be contrary to the principles of the CRC. I have also considered that the [applicant’s] children may be separated from direct physical access to their father, which could result in some disruption and emotional hardship to the [applicant’s] children.
However, a decision as to where the [applicant’s] children reside is a matter for the [applicant] and his partner to consider if required following visa cancellation. As such, I am satisfied that the circumstances of this case would not lead to a breach of Australia’s international obligations under the CRC in relation to observing the rights of a child in Australia.
Further, there is no information before me indicating that the [applicant’s] circumstances would enliven consideration for (sic) any other international obligation or that cancellation of the visa would lead to a breach of Australia’s international obligations.
The delegate gave this consideration a little weight against cancelling the visa: CB24. Ultimately, the delegate decided to cancel the applicant’s visa: CB24.
On 9 February 2020, the applicant’s solicitor wrote to the Department by email seeking a revocation of the Cancellation Decision: CB26. The email correspondence attached: a Form 956 appointing a registered migration agent as an authorised recipient to receive and respond to written communication: CB29-CB31; a written submission for request for revocation dated 8 February 2020: CB32-CB40; a psychological assessment report prepared by a clinical psychiatrist, Dr Chun Wei Huang, dated 31 October 2019: CB41; a series of translated text messages between the applicant and his wife: CB42-CB45; an apology letter by the applicant to a Judge in the District Court of Queensland dated 8 November 2019: CB46-CB47; and a psychological assessment report prepared by Associate Professor Freeman, a consultant psychologist dated 11 November 2019: CB26. On 11 February 2020, the applicant’s solicitor provided a further psychological assessment report prepared by Dr Charles Huson, a registered psychologist, dated 5 February 2020: CB64; CB69-CB74.
In written submissions dated 8 February 2020, the applicant contended that he poses no risk of safety to his partner, and thereby, the ground for cancellation of his visa does not exist. The submissions, in large part, set out the events leading to the applicant’s conviction; admits he is aware of the seriousness of the crime he committed; feels guilt and remorse for his actions; means no ill will for his wife and children, and thereby does not pose a threat of risk of harm. The written submissions also set out that the applicant:
·made a contribution to Australia through business and volunteer activities;
·attended anger treatment and therapy sessions with a psychologist from April to October 2019, whose psychiatrist concluded in the psychiatric report dated 31 October 2019 that “after these anger management sessions, I hereby approve that [the applicant] can control his temper and anxiety more adequately and will be with good prognosis”;
·obtained a psychologist report from Associate Professor Freeman dated 11 November 2019, in which the Associate Professor determined, inter alia, that in relation to the applicant’s anger management issues, “he presented as a meek and mild individual”; that “[t]he offence is uncharacteristic in nature and appears to be in contrast to his broader psychosocial functioning. He stated never intending to harm his wife and this assertion appears genuine”; and concluded that the applicant’s risk of recidivism can be considered in the low category;
·formed close and important business and personal relationships with many individuals during his time in Australia; and
·may face disruption, emotional and financial hardship if his visa is cancelled.
The written submissions also contended that:
·it was disingenuous of the delegate who made the Cancellation Decision to conclude that obligations under the CRC would be met by “the simple observation that it is up to the parents where the children live”; and
·the Cancellation Decision did not consider art 9 of the CRC and the question whether separation from his children would be in their best interests, and that separation from his children at a young age may very well cause them significant and irreparable harm.
NON-REVOCATION DECISION
On 16 March 2020, another delegate decided not to revoke the Cancellation Decision and notified the applicant’s solicitor of the decision by email: CB80. The notification comprised a notification letter: CB81-CB82, and a copy of the decision record: CB83-CB90.
The delegate’s decision record discloses the delegate referred to the relevant statutory criteria; set out the information received from the Queensland Police Service about the applicant’s charges and convictions; and identified the documents before the delegate, including: a request for revocation submission dated 8 February 2020, a psychological assessment prepared by Professor James Freeman dated 11 November 2019, a letter of support from psychiatrist Dr Chun Wei Huang dated 31 October 2019, a letter of apology to a Judge in the District Court of Queensland dated 8 November 2019, and a psychological assessment report from Charles Huson dated 5 February 2020.
The delegate considered the applicant’s psychological reports and accepted as persuasive that the applicant:
·had no prior criminal history;
·showed guilt and remorse;
·had a low risk of recidivism; and
·can more adequately manage his temper and anxiety.
The delegate considered the applicant’s behaviour the subject of the family violence conviction was “serious”, and the existence of a court-ordered protection order as indicative that a court considers the applicant may be a risk of safety to others. The delegate weighed the fact that recidivism was a low risk and the applicant’s improved ability to manage his temper and anxiety against the possibility the applicant would or might be a risk, because of the severe violent nature of his family violence behaviour and the court-imposed mechanisms designed to control his behaviour. The delegate found, therefore, that there was a ground to cancel the applicant’s visa under s 116(1)(e)(ii) of the Act.
The delegate also noted:
(1)the applicant’s intention to reside in Australia permanently was congruent with the requirements of his partner visa;
(2)there are no visa conditions imposed on the applicant’s visa;
(3)the decision not to revoke the cancellation of the visa may cause the applicant financial and emotional hardship;
(4)there is no information – other than the particulars of grounds for cancellation previously discussed – indicating the circumstances leading to the cancellation grounds arising were outside of the applicant’s control;
(5)there is no information of the applicant exhibiting adverse behaviour towards the Department;
(6)there are no consequential cancellations under s 140 of the Act;
(7)that if the delegate decided not to revoke the Cancellation Decision, the applicant will not be allowed to travel or stay in Australia; however, if the delegate decided to revoke the Cancellation Decision, future visa applications may be affected by Public Interest Criterion 4013; and
(8)that Australia is a signatory to the CRC, and gave primary consideration to the children’s best interests, noting that a decision not to revoke cancellation of the decision may be contrary to the principles of the CRC, and may cause the children disruption and emotional hardship.
As to Australia’s international obligations, the delegate reasoned:
Australia’s international obligations apply to persons within Australia’s territory and jurisdiction. As the [applicant] is no longer within Australia’s territory or jurisdiction, Australia’s obligations in relation to the [applicant] no longer apply. However, Australia is a signatory to several international treaties regarding human rights including the [CRC]. The [applicant’s] children are under the age of 18 and reside with their mother in Australia.
I have given primary consideration to the [applicant’s] children and what is in their best interests. I acknowledge that the integrity of the family unit is an important consideration. A decision not to revoke the cancellation decision may mean that the [applicant] may remain geographically separated from his children in Australia. I have considered the possibility this may be contrary to some of the principles of the CRC. I have also considered that the [applicant’s] children may be separated from direct physical access to their father, which could result in some disruption and emotional hardship to the [applicant’s] children.
I have also considered the support mechanisms that are available from service providers, family and friends and have also balanced this with the nature of the behaviour that the [applicant] has been convicted of. In relation to the family unity principles derived from the CRC I note that reasonable interference with family is contemplated by the CRC and does not prohibit the power to lawfully consider cancellation of a visa. Whilst it may cause emotional and financial hardship, the CRC also contemplates that parents may be legitimately separated from children through immigration removal.
I have also considered that the [applicant] has been convicted of a serious domestic violence offence. I do not consider it to be in the best interests of the [applicant’s] children to be affected by, or be subjected to or witness domestic violence.
In addition, a decision as to where the [applicant’s] children reside is a matter for the [applicant] and his partner to consider.
The delegate was satisfied that the circumstances of this case would not lead to a breach of Australia’s international obligations under the CRC. The delegate ascribed this consideration some weight favouring revocation of the Cancellation Decision, but ultimately decided against revocation: CB90.
CONSIDERATION
As noted earlier, by his amended application, the applicant seeks judicial review of the Cancellation and Non-Revocation decisions. By grounds 1 and 2, the applicant contends that both decisions are attended by jurisdictional error because in each case, the relevant delegate acted irrationally or legally unreasonably, in that the delegate adopted an unintelligible interpretation of the CRC. Ground 3 is directed only to the Non-Revocation Decision and contends the delegate failed to consider the report of Associate Professor Freeman.
Grounds 1 and 2
Although it will not be necessary to consider the challenge to the Non-Revocation Decision if the applicant establishes material jurisdictional error in the Cancellation Decision, it is nevertheless convenient to deal with grounds 1 and 2 together.
It is not controversial that the best interests of children under the CRC may be a relevant consideration to the exercise of the delegate’s discretion to cancel the applicant’s visa, as well as in exercising the discretion whether to revoke the Cancellation Decision. Both delegates were therefore able, but were not required, to take this factor into account in arriving at their respective decisions. Consideration of the CRC by the delegates was permissible but it is not a mandatory consideration. It is also not controversial, that having determined to consider the best interests of the child principle in the CRC in arriving at a decision, each delegate was thereby required to correctly interpret and apply the principle. The delegates, having decided to exercise their discretionary powers by considering the best interests of the child principle in the CRC, were obliged to exercise the discretion lawfully. And because the best interests of the child principle in the CRC was relevantly and permissibly considered by the delegates in exercising their powers, any error in that consideration is capable of being jurisdictional in nature: AVJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1056at [29].
The gravamen of the applicant’s complaint raised in grounds 1 and 2, is that the delegates did not correctly apply the best interests of the child principle in the CRC. The applicant contends that to consider the best interests of the applicant’s children, the delegates’ first decision had to identify whether cancellation was, or was not, in the best interests of the applicant’s children. The applicant says the delegates did not do so. Instead, they focussed on the consequences for the children arising from visa cancellation and identified that those consequences did not necessarily result in a breach of Australia’s obligations under the CRC. The applicant says that the proper application of the best interests of the child principle in the CRC required the interests of the applicant’s children be brought to account prior to the relevant action – in other words, was cancellation of the applicant’s visa resulting in separation in the best interest of his children. Instead, the delegates treated the best interests of the child principle in the CRC as being concerned with post-action consequences – in other words, what are the consequences for the applicant’s children of cancellation rather than considering whether the separation that would result from cancelling the applicant’s visa is necessary for the best interests of the children.
The applicant says the delegates did not identify (or find) whether cancellation of the applicant’s visa is or is not in the best interests of the children. And the delegates’ conclusions that cancelling the applicant’s visa would not lead to a breach of Australia’s international obligations under the CRC were arrived at through unintelligible reasoning. The applicant contends that the delegates’ erroneous interpretation and application of the CRC is analogous to a serious misunderstanding of material before the decision-makers, or to act on an irrational or unreasonable view of material before the decision-makers, and so discloses material jurisdictional error.
The respondent contends that the Cancellation and Non-Revocation Decisions disclose that the delegates undertook a rational and evaluative assessment as to the likely parental role that the applicant would or would not have in the future of his children, and what would be in their best interests having regard to the submissions made at each decision point. The respondent says that each decision involved a conclusion about whether the fact that the applicant would be “geographically separated” from his children was contrary to the best interests of the child principle in the CRC. The respondent says that is why the Cancellation Decision delegate weighed this factor as against cancelling the applicant’s visa, and the Non-Revocation Decision weighed the factor in favour of revoking the Cancellation Decision.
The respondent contends the delegates each turned their minds to the potential and likely scope of the applicant’s parental role in the children’s future as part of their assessment of the children’s best interests. The respondent contends there is no obligation on the delegates to conclude that which is the best decision in the best interests of children, because sometimes neither of the available decisions are in their best interests. The respondent contends there is nothing unreasonable, illogical or irrational in the facts as found by the respective delegates about the consideration in issue, having regard to the significant threshold or burden the applicant has in establishing error of this kind, and says that grounds 1 and 2 amount to no more than a sophisticated challenge to the weight ascribed to the best interests of the child principle in the CRC by each delegate, which is an impermissible merits review.
Article 3(1) of the CRC provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Article 9(1) provides:
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
(emphasis added)
The delegates respective consideration of the best interests of the children in the context of the CRC recorded at CB24 and CB89 is earlier set out.
It is evident from those passages that neither delegate made any express finding that cancellation of the applicant’s visa (resulting in separation of the children from their father) was in their best interests. Both delegates concluded that cancellation of the applicant’s visa would not result in a breach of Australia’s international obligations under the CRC. Although the applicant submitted that deciding whether cancellation of the applicant’s visa (and so resulting in separation of the children from their father) was in the best interests of the applicant’s children was a binary choice, that submission cannot be accepted. In considering if proposed action is, or is not, in the best interest of a child, a decision-maker may not always be able to determine whether the contemplated action, if taken, will be in a child’s best interest. This may be because the evidence is insufficient to enable a decision-maker to make any definitive findings, or the best that can be said on the evidence is that the best interests of a child is neutral regardless of the action taken. Sometimes the only available finding about whether a proposed action is, or is not, in the best interests of a child, may be that neither taking nor refraining to take the proposed action is in the child’s best interests. It is for these reasons, that in considering whether proposed action is in a child’s best interests, the decision-maker is not required to make a conclusive finding about whether the action proposed is or is not in a child’s best interest and each case is to be determined according to its facts: see discussion in PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1259 at [33]-[35].
But that the delegates did not make a finding about whether cancellation of the applicant’s visa was in the best interests of the child is not the centrepiece of the applicant’s complaint. The applicant complains that because the delegates concluded that cancellation of the applicant’s visa resulting in separation of children and father would not breach Australia’s obligations under the CRC, they were each first required to conclude that the separation “is necessary for the best interests of the child[ren]”: art 9(1) of the CRC.
Article 9 of the CRC sets out a substantive obligation – for a state party to ensure that a child shall not be separated from his or her parents against their will. An exception to the obligation is where a competent authority determines, according to applicable law, that such separation is necessary for the best interests of the child. For the exception to be engaged calls for a determination of what is in the best interests of the children – specifically whether separation of the children from their father is necessary for the children’s best interest.
In assessing, as the delegates chose to do, whether the action of visa cancellation resulting in separation of the children from their father would contravene Australia’s international obligations under the CRC, they need not have reached a concluded view. As noted earlier, it may not have been practical on the material before the delegates. But to conclude, as both delegates did, that the cancellation action would not contravene the obligations under the CRC, could only have been reached if the delegates were satisfied the resulting separation was necessary for the best interests of the children. This required the delegates to consider and reach a conclusion about what was in the best interests of the children. No such conclusion is to be found in either the Cancellation Decision or the Non-Revocation Decision. Both delegates therefore erred in their application and consideration of the CRC.
Turning then to the contention that the delegates’ reasoning in reaching their conclusions that the cancellation action would not result in a breach of the CRC was, illogical, irrational or unreasonable. In considering whether the Cancellation Decision or the Non-Revocation Decision is illogical, irrational or unreasonable, it must be borne in mind that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality, irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [131], per Crennan and Bell JJ.
In the instant case, the applicant complains about the illogical, irrational or unreasonable reasoning the delegates adopted in arriving at their conclusions that cancellation action would not result in a breach of Australia’s international obligations under the CRC. In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J summarised the principles relevant to determining whether a decision is vitiated for jurisdictional error because of illogical or irrational findings of fact or reasoning as follows:
52.As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
...
54. … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
55. Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
To engage with the exception in art 9 of the CRC, the delegates were required to consider what was in the best interests of the children. And if separation was in the best interests of the children, then no contravention of art 9 would arise. The Cancellation Decision delegate reasoned that because “a decision as to where the [applicant’s] children reside [was] a matter for the [applicant] and his partner to consider if required following visa cancellation”, there would be no contravention of Australia’s international obligations under the CRC. Given the text of art 9, that the parents may, after separation brought about by the visa cancellation, reach an accommodation about where the children might reside does not speak to whether the separation is necessary for the best interest of the children. A conclusion that there would be no contravention of Australia’s international obligations if the applicant’s visa is cancelled, because of the possibility of a subsequent parental agreement about the children, does not engage with the relevant question and is illogical or irrational.
The Non-Revocation Decision delegate reasoned that as the applicant had been convicted of a serious domestic violence offence, the delegate did not consider it to be in the best interests of the children to be affected by, or be subjected to or witness, domestic violence. But there is no suggestion of a finding that separation of the kind the visa cancellation would bring about was necessary, for example to eliminate the possibility of such exposure in the future for the best interest of the children. It is an observation, doubtless correct, that it was not in the children’s best interests to have witnessed or been exposed to domestic violence perpetrated by the applicant against their mother. The delegate then reasons “[i]n addition, a decision as to where the [applicant’s] children reside is a matter for the [applicant] and his partner to consider”. And so “the circumstances of this case would not lead to a breach of Australia’s international obligations under the CRC in relation to observing the rights of a child in Australia”. The same illogical or irrational reasoning is therefore employed to reach the conclusion.
The Non-Revcoation Decision suffers from the further vice that it does not appear to deal with the applicant’s argument raised in his written submission directed to art 9(1): CB38-CB39 at [64]-[65]. In that submission the applicant said:
We draw your attention to Article 9 of The Convention which states in part:
1 State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
In our respectful submission, this article applies to the decision in question as it is a determination made by competent authorities subject to judicial review that had the effect of separating children from their father. There is nothing in the decision to cancel our client’s visa that demonstrates any consideration of the question whether separation of our client’s children from their father is necessary, or in their best interests. Indeed, as above, it is our respectful submission that the decision, by separating our client from his children at such a young age may very well cause them significant and irreparable harm.
The absence of any direct engagement with the argument suggests that the delegate failed to consider that which was a submission of some substance.
It may be accepted that not every lapse of logic will give rise to jurisdictional error and the Court should be slow, although not unwilling, to interfere in an appropriate case: SZMDS at [130]. The ultimate question is whether the satisfaction of the relevant state of affairs or matter (in this case that there would be no breach of the CRC) was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 207 ALR 12 at 20 – 21, [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30, 198 ALR 59 at 71, [52] and 98, [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, 289 FCR 21 at [35]. That is the case here. For the reasons earlier explained, absent a finding that the separation to be brought about by the visa cancellation was necessary for the best interests of the children, the separation would likely contravene Australia’s international obligations under the CRC. The reasons given by the delegates for their contrary conclusions do not engage with the exception in art 9 of the CRC and do not provide a logical or rational reason for the conclusions.
For these reasons, I agree with the applicant that the delegates incorrectly applied the best interests of the child principle in the CRC and that their reasoning for concluding that cancelling the applicant’s visa resulting in separation would not lead to a breach of Australia’s international obligations under the CRC was illogical or irrational. As earlier noted, the delegates were not obliged to consider the best interests of the child principle in the CRC. But having determined the issue was relevant, and it was, and in deciding to consider the issue, the delegates were obligated to correctly apply the principle and to articulate logical and rational reasons for concluding that there would be no breach of Australia’s international obligations under the CRC by reason of the cancellation action. Although a finding that the visa cancellation would breach Australia’s international obligations under the CRC would not necessarily carry the day in respect of the ultimate decision to cancel the applicant’s visa, one cannot rule out the possibility of a different outcome and I do not consider that possibility to be merely fanciful or improbable.
It follows that grounds 1 and 2 of the amended application are made out. It is therefore unnecessary to deal with ground 3. It is necessary only to quash the Cancellation Decision. The respondent should pay the applicant’s costs fixed in the sum of $8,371.30.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 17 April 2025
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