CAI v Minister for Immigration
[2020] FCCA 1225
•22 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAI v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1225 |
| Catchwords: MIGRATION – Visas – judicial review of spousal visa rejection – applicant subject to criminal proceedings for breaching an intervention order – applicant on remand during merits review – applicant ultimately found not guilty – no denial of procedural fairness – no failure to consider critical material – no denial of a real and meaningful hearing – no failure to make assessment of risk posed by the applicant – no failure to making findings regarding the nature of the applicant’s past conduct – no unreasonableness in failure to delay decision until the conclusion of applicant’s criminal trial. |
| Legislation: Migration Act 1958 (Cth), ss.116, 360, 363 |
| Cases cited: AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 Luu v Renevier (1989) 19 ALD 52; (1989) 91 ALR 39 Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 Minister for Home Affairs v Omar [2019] FCAFC 188 Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Citizenship vSZIAI [2009] HCA 39 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 |
| Applicant: | JIECHAO CAI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 348 of 2019 |
| Judgment of: | Judge McNab |
| Hearing date: | 17 February 2020 |
| Date of Last Submission: | 17 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 22 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenneally |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Mills Oakley Lawyers Pty Ltd |
ORDERS
The application filed on 11 February 2019 and amended on 14 February 2020 be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $7,467.
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 348 of 2019
| JIECHAO CAI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 11 February 2019, and amended on 14 February 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 7 January 2019. The Tribunal’s decision affirmed a decision of a delegate (‘the delegate’) of the first respondent (‘the Minister’) cancelling the applicant’s Subclass 820 (Spouse) visa (‘the visa’) under section 116(1)(e)(ii) of the Migration Act 1958 (Cth) (‘the Act’).
The matter was heard on 17 February 2020.
For the reasons outlined below, the application is dismissed.
Background
The applicant is a 31-year-old man who is a Chinese citizen. His daughter was born in 2014 and resides in Australia.
The background of this matter is, in a large part, set out in the applicant’s written submissions filed 20 January 2020, and I adopt that background with the addition of details of information that were before the Tribunal:
On 25 June 2006, the applicant first arrived in Australia.
On 2 April 2015, the applicant was granted a partner visa through his marriage to Ms Jia Yan Zhao (now his ex-wife).
On 9 May 2017, the applicant was served with an intervention order prohibiting contact with his wife.
On 23 November 2017, the applicant was arrested due to an incident at his ex-wife and father in law’s house (‘the incident’). The ex-wife, daughter and father-in-law were at home and the father-in-law suffered severe burns and was taken to hospital.
On 24 November 2017, the applicant was charged with breaching an intervention order and various alternate charges arising out of injuries caused to his father-in-law. Those charges were:
a)intentionally causing serious injury;
b)recklessly causing serious injury;
c)intentionally causing injury;
d)recklessly causing injury;
e)assault; and
f)contravention of an intervention order.
The five different assault charges related to the injuries suffered by the applicant’s father-in-law, and were laid in the alternative.
The Tribunal found, based on the applicant’s evidence, that the applicant had faced a contested committal hearing and a magistrate had found that there was sufficient evidence for the applicant to be committed to stand trial.
On 3 January 2018 the applicant was served with a notice of intention to cancel his visa under section 116 of the Act. Section 116(1)(e) provides that the Minister may cancel a visa if he or she is satisfied that ‘the presence of its holder in Australia is or may be, or would or might be, a risk to’:
a)the health, safety or good order of the Australian community or a segment of the Australian community; or
b)the health or safety of an individual or individuals.
On 17 January 2018, the applicant provided submissions in response to the notice. The submissions argued that the delegate should not make any decision until after finalisation of the charges. The submissions noted that:
a)the applicant could not fully respond to the notice without compromising his right to silence; and
b)the applicant was on remand, and therefore posed no immediate risk to the Australian community.
On 30 January 2018, the delegate cancelled the applicant’s visa.
On 6 February 2018 the applicant applied for review at the Administrative Appeals Tribunal.
On 7 November 2018, the applicant filed legal submissions in support of the application. The submissions raised the following issues:
a)The applicant had been on remand since his arrest, he had plead not guilty to the charges and the trial was due to commence on 25 February 2019.
b)The Tribunal could not determine if the applicant posed a risk to the Australian community until after the criminal charges had been determined in the County Court.
c)In the alternative, it was argued that despite the incident in November 2017 the applicant was no longer a risk to the community because, among other reasons, he and his ex-wife had entered into a parenting plan and finalised their divorce.
d)The applicant had the support of his ex-wife and his father-in-law. The submission attached an index of supporting documents purporting to provide letters of support from the applicant’s ex-wife and his father-in-law. However, the submission attached the ex-wife’s letter twice, and omitted the father-in-law’s letter. A copy of the father-in-law’s letter has been filed in this Court.
On 13 November 2018, the Tribunal conducted a hearing. The Tribunal records in its reasons that the applicant’s representative requested that the Tribunal delay any decision until after the Country Court trial is concluded.
On 20 December 2018, the applicant filed further submissions emphasising the support of his ex-wife and father in law.
On 8 January 2019, the Tribunal affirmed the delegate’s decision.
On 5 March 2019, the applicant was found not guilty of the charges of violence. The applicant pleaded guilty to contravening the intervention order.
Grounds of review
By further amended application filed 14 February 2020, the applicant raises six grounds of review:
1. The Tribunal denied the applicant procedural fairness and/or constructively failed to exercise jurisdiction by failing to consider the support of the applicant’s father in law to the application.
Particulars
a. The applicant’s visa was cancelled based on criminal charges primarily involving allegations of violence against his father in law.
b. The applicant submitted that his father in law was supportive of his application to have the decision to cancel his visa set aside.
c. The support of the applicant’s father was significant and critical as he was the alleged victim; and grandfather of the applicant’s daughter.
d. The Tribunal failed to refer to and therefore did not consider the father in law’s support for the applicant.
2. The Tribunal constructively failed to exercise jurisdiction and/or denied the applicant a real or meaningful hearing by failing to make an inquiry regarding the applicant’s father in law’s letter of support.
Particulars
a. The applicant’s legal submission dated 7 November 2018 purported two enclose two letters of support: one from the applicant’s ex-wife; and one from his father in law.
b. The submission, in error, attached two copies of the ex-wife’s letter.
c. The Tribunal should have made inquiries regarding the father in law’s letter as:
i. it was obvious the letter was missing from the submission;
ii. the letter was critical to the issues in review; and
iii. the inquiry could easily be made.
d. The failure to conduct the inquiry constituted a constructive failure to exercise jurisdiction because:
i. it was unreasonable to make the decision prior to making the inquiry; and/or
ii. the applicant was denied a real and meaningful hearing due to his assumption that the letter of support would be considered.
3. The Tribunal failed to complete its statutory task to reach its own assessment of whether the applicant posed a risk sufficient to enliven the power to cancel his visa under s 116(1)(e) of the Act.
Particulars
a. Section 116(1)(e) of the Act permits cancellation of a visa where a person poses a risk to the “health and safety” of the Australian community or individuals.
b. The Tribunal stated that its task was not to make findings about the alleged offending by the applicant.
c. The Tribunal found that the applicant posed a relevant risk to his ex-wife, father in law, and child because he had been charged with serious offences, and a Magistrate had committed him to trial.
d. By relying on the Magistrate’s finding, the Tribunal abrogated its obligations to make findings of fact for itself in relation to the relevant conduct by the applicant in the past and whether that gave rise to the risk to the community in the future.
5. The Tribunal’s exercise of discretion was legally unreasonable because it failed to make findings regarding the nature of the harm posed by the applicant and the risk of the harm occurring.
Particulars
a. The Tribunal having found the applicant was a risk to the “health and safety” of his father in law, ex-wife, and daughter had to consider whether to exercise the discretion to cancel the visa.
b. The Tribunal failed to make findings as to the potential harm the applicant could cause to each of his ex-wife, daughter, or father in law or the likelihood that the applicant would cause such harm.
c. The Tribunal gave the risk of harm the applicant posed significant weight in the exercise of the discretion.
d. The Tribunal’s conclusion that the risk posed by the applicant outweighed other factors lacked an intelligible or logical basis because the Tribunal failed to make findings regarding the nature and degree of the future risk posed by the applicant, but nevertheless gave significant weight to that risk.
6. The Tribunal denied the applicant procedural fairness by, in exercising the discretion to cancel the visa, not considering as to the nature of the harm the applicant would cause in the future and the risk of that harm in occurring.
Particulars
a. The applicant repeats and relies on particulars (a) – (c) in ground 5.
b. The applicant had made submissions that he did not pose any ongoing risk to his ex-wife, daughter, or father in law due to changed circumstances, the courses he had undertaken in custody, and his lack of a criminal record.
c. The Tribunal denied the applicant procedural fairness by failing to consider his clearly articulated submission regarding risk of harm in exercising its discretion.
7. The Tribunal constructively failed to exercise its jurisdiction and/or unreasonably failed to exercise its jurisdiction by asking itself the wrong question in determining not to adjourn the review or delay its decision until after the finalisation of the applicant’s criminal charges, or alternatively unreasonably exercised its discretion to determine the review prior to the finalisation of the criminal charges.
Particulars
a. The Tribunal had a discretion under the Act to adjourn the review under s 363(1)(b), or not to finalise the review before the applicant’s criminal trial
b. The Tribunal determined at [25] of its reasons that it would not fall into jurisdictional error by finalising the review before the criminal trial.
c. The Tribunal asked itself the wrong question: whether it could make a lawful decision prior to the criminal trial. The correct question was whether Tribunal should exercise its discretion to delay its decision until after the criminal trial.
d. The Tribunal’s failure to consider exercising its discretion had a material impact on the review, as the applicant was found not guilty of the most serious criminal charges.
e. Alternatively, if the Tribunal did consider exercising its discretion, the exercise of the discretion was legally unreasonable having regard to the following factors:
i. the applicant was on remand and posed no immediate risk to the community;
ii. the criminal trial was listed for 25 February 2019;
iii. the outcome of the criminal trial could affect the Tribunal’s consideration of the cancellation;
iv. the applicant could not have his visa reinstated once cancelled even if found not guilty of the criminal charges; and
v. the Tribunal did not identify a single reason for determining the review prior to the criminal trial.
(errors in original)
Applicant’s submissions
Ground 1 – denial of procedural fairness or failure to consider critical material
By his first ground, the applicant submits that the Tribunal made a jurisdictional error by failing to consider the support of his father-in-law, or by failing to enquire about the missing letter of support from the father-in-law.
The applicant’s submission suggests that the ‘support’ offered by the father-in-law was what was detailed in the father-in-law’s letter.
While the applicant admits that the father-in-law’s letter was erroneously not sent to the Tribunal, he says that nonetheless the father-in-law’s support was significant and critical to the review, and therefore the Tribunal’s failure to refer to it, or to inquire about the failure to attach it, is a jurisdictional error due to its centrality.
Ground 2 – denied a real or meaningful hearing
By his second ground the applicant submits that the Tribunal made a jurisdictional error by failing to make an ‘obvious enquiry’ about a ‘critical fact’, being the missing letter of support from the father-in-law that the applicant had not attached to his submissions.
The applicant says that this failure undermines the applicant’s entitlement to a real and meaningful hearing under section 360 of the Act. This is because, he argues, the failure to enquire led to his attendance at the hearing believing, erroneously, that the Tribunal had and would take into account a copy of the father in law’s letter of support.
At [25] of his submissions the applicant relies on the criterion in Minister for Immigration and Citizenship vSZIAI [2009] HCA 39 and submits that ‘a diligent Tribunal would have noted’ that the father-in-law’s letter had been omitted.
The applicant says that the father-in-law’s support was significant and critical to the review because:
a)he would have every reason not to support the applicant’s review;
b)he had first-hand knowledge of the applicant’s most serious alleged offending;
c)his views were highly relevant to the risk the applicant posed to the Australian community; and
d)his support was further evidence that the people closest to the applicant’s daughter considered the applicant’s presence in her life to be in her best interests.
Ground 3 – alleged failure on the part of the Tribunal to make its own assessment of risk
Here the applicant submits that the Tribunal did not make the necessary findings to consider for itself if the applicant posed a future risk to the Australian community, and to enliven the power to cancel the visa under s 116(1)(e) of the Act.
In particular, the applicant claims that the Tribunal erred by:
a)failing to make findings as to the nature and degree of risk posed by the applicant;
b)failing to make findings regarding the nature of the applicant’s past conduct, ‘what conduct the applicant may engage in in the future that would pose a threat his family’s safety, and the likelihood of that conduct occurring’; and
c)relying solely on the applicant’s past-charges to justify a finding that the he continued to pose a risk.
Grounds 4 and 5 - degree and nature of risk
The applicant claims that the Tribunal attributed more weight to the risk posed by the applicant’s presence in Australia than to the consequences of the separation of the applicant from his family. He says that this reasoning ‘lacked an intelligible and evident foundation’ and, citing Rangiah J’s decision in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 (‘Moana’), says that the Tribunal ‘could not rationally weigh the applicant’s submissions against the risk, having not considered the nature of the risk’.
Alternatively, the applicant says that the Tribunal denied him procedural fairness by failing to consider his clearly articulated argument as to why the visa should not be cancelled.
The applicant contends that he made submissions about why he no longer posed a risk, and that these submissions were ‘critical to the weight to be given to the risk of harm in exercise of discretion’. Citing Minister for Home Affairs v Omar [2019] FCAFC 188, it is submitted that the Tribunal was obliged to consider the submissions and to assess the actual risk.
Ground 6 – not waiting for criminal trial
With regards to his criminal trial, the applicant claims that the Tribunal asked the ‘wrong question’ being ‘whether it was lawful to make the decision prior to the trial’, when the ‘correct question’ was ‘whether the Tribunal should proceed in the exercise of discretion’.
The applicant claims that the Tribunal failed to exercise its jurisdiction because it did not consider the issue ‘one of discretion’ as it ‘did not identify any of the factors in favour of postponing’, which he suggests include that:
a)the applicant posed no immediate risk to the community;
b)the outcome of the criminal trial could inform the assessment of risk; or
c)following the outcome of the trial, the applicant may be able to provide evidence without compromising his defence.
Unreasonableness
In the alternative, the applicant says that if the Tribunal did ask itself the correct question and considered exercising its discretion, its failure to delay the decision was legally unreasonable: Minister for Immigration and Citizenship v Li [2013] HCA 18.
The applicant submits that there were strong factors in favour of delaying the Tribunal’s decision until the conclusion of the criminal trial, and these were relevant to the exercise of its discretion. These factors are outlined below and at [50] of the applicant’s submissions filed 20 January 2020:
a. the applicant, on remand, posed no immediate risk to the community;
b. the applicant’s criminal trial was scheduled within two months of the date the decision was made;
c. the applicant denied the most serious offending;
d. the applicant could not provide evidence to the Tribunal regarding the alleged offending without compromising his right to silence;
e. the outcome of the criminal trial had the capacity to greatly assist the tribunal in its assessment of risk; and
f. once the applicant’s visa was cancelled the applicant was prohibited from applying for any other visa to Australia, and effectively unable to have any relationship with his child.
(citations omitted)
The applicant asserts that the abovementioned factors, together with an absence of factors identified in favour of making the decision immediately, ‘render[s] the Tribunal’s decision to proceed unintelligible, and therefore unreasonable.’
First respondent’s submission
Ground 1 - denial of procedural fairness or failure to consider critical material
The Minister challenges the importance of the father-in-law’s letter and says that it included unspecified and irrelevant information.
More specifically, the Minister says that it is impossible to see how information about the applicant’s child’upbringing could be considered central or critical to the Tribunal’s exercise of discretion, as described in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
The Minister submits that the applicant’s relationship with his daughter was considered by the Tribunal and also addressed by the mother of the applicant’s daughter in her letter at CB 120. And at [17] of its submissions the first respondent contends that:
Again, it is impossible to see that the suggestion that his father-in-law likewise desired the applicant to have a “role” in the daughter’s upbringing was “central” to the Tribunal’s task.
The Minister claims that even if the Tribunal did not have regard to the father-in-law’s information about the applicant’s upbringing, there is no realistic possibility that the Tribunal’s decision ‘would have been so different so any error is immaterial’.
Ground 2 – denial of a real or meaningful hearing
Making reference to the High Court decision in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1, the Minister contends that this ground fails because the letter from the father in law could not be regarded as “critical”. The Minister asserts that ‘there was little basis to consider that the contents of that letter would add anything of particular importance to what was already before [the Tribunal]’, especially because the Tribunal considered the ex-wife’s letter which covers much of the same content.
Distinguishing from Luu v Renevier (1989) 91 ALR 39, the Minister claims that, having regard to the applicant’s submissions, ‘there was little to suggest that the letter was likely to be of critical importance in relation to a central issue for determination’.
At [24] of his submissions, the Minister states that:
24. This is not a case where the letter, if it had been obtained and read, “must have played an important part in” the determination of the review. The Court should not conclude that there is a sufficient link from the fact that the Tribunal did not seek to obtain the letter (mistakenly not provided by the applicant’s representative) to the outcome of the review.
Ground 3 – alleged failure on the part of the Tribunal to make its own assessment of risk
The Minister submits that this ground may be readily rejected and relies on Smith J’s decision in Gong v Minister for Immigration [2016] FCCA 561 (‘Gong’) to support the proposition that the Tribunal’s power to cancel a visa can arise even on the possibility that some event occurred in the past, and need not come from any direct, solid or certain foundation.
In making its decision, the Minsiter argues, the Tribunal was not required to ‘quantify’ the risk in making a decision under section 116(1)(e) of the Act: Ferdous v Minister for Home Affairs [2019] FCCA 1862 (‘Ferdous’).
The Minister says that it was not necessary for the Tribunal to make findings as to whether the applicant had engaged in conduct the subject of the criminal charges, because evidence that he was to stand trial on criminal charges was a sufficient basis to be satisfied that he ‘may’ be a risk to the health and safety of his family.
a)The Minister does note that, while not strictly necessary, the Tribunal’s assessment was also informed by:
i) evidence that the applicant had been subject to an intervention order; and
ii) evidence that the applicant had breached that order by attending his former partner’s home in November 2017.
Grounds 4 and 5 - degree and nature of risk
The Minister maintains that ground 4 must be dismissed. He refers to the Full Court decision in AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 to support the proposition that the Tribunal, in exercising its discretion, considered the risk that the applicant posed and, as explained above, was not required to quantify that risk in any particular way.
Regarding ground 5, the Minister says that the Tribunal clearly considered the applicant’s submissions about him not posing a risk (including that he and his ex-wife had resolved their differences and entered a parenting plan) at [34], [37] and [47] of its decision.
Ground 6 – not waiting for criminal trial
Here the Minister contends that the applicant is attempting ‘to apply over-zealous scrutiny to the Tribunal’s reasons’, and that the Tribunal’s decision involved no misdirection at law because it both:
a)considered whether it should accede to the applicant’s request to delay its decision-making; and
b)expressed confidence that its approach was not unreasonable.
Unreasonableness
The Minister asserts that it was open to the Tribunal to make its decision when it did, notwithstanding the imminent trial, and that the Tribunal could reasonably come to the conclusion it did.
The Minister notes again that the Act does not require the Tribunal to wait until a person is convicted, but to assess the risk that they present to the community based upon the information available to it. In doing so, the Minister states that the Tribunal considered and was conscious of the wider circumstances in this case, including:
a)that the applicant was in custody;
b)the date of the trial;
c)that there was an intervention order taken out against the applicant;
d)that, on the applicant’s own evidence, he had breached that intervention order;
e)that the intervention order had lapsed;
f)evidence that the applicant had made previous threats to kill his former partner;
g)evidence of a history of family violence, threatening behaviour and that his daughter was scared of him; and
h)the effect of the loss of the applicant’s visa, resulting in him leaving Australia and living in another country away from his daughter.
Consideration
The Tribunal correctly identified at [19] – [20] and [41] the task that it was required to undertake in applying section 116(1)(e) of the Act: to determine whether the applicant’s Visa should be cancelled if the Tribunal was satisfied that the presence of the applicant ‘is or may be, or would or might be, a risk’ to the health, safety or good order of an individual or individuals.
The Tribunal noted at [41] that the power under section 116 is conditional on a “possibility risk” which is a low threshold, citing Gong.
Grounds 1 and 2 - support of the father-in-law
The applicant’s representative submitted to the Tribunal at CB 107:
d. That Mr Zhao has written a letter of support to the Tribunal detailing the upbringing of the Review Applicant and the importance of the Review Applicant having a role in his daughter’s upbringing.
(citation omitted)
At CB 110 the applicant’s representative also said:
[…] The letters of support provided by Mr Zhao and Ms Zhao, along with the existence of the parenting plan, evidence that it is a desire and a priority of the entire family that the Review Applicant have the opportunity to have a meaningful relationship with his daughter.
It is not apparent that that information was critical to the exercise of the Tribunal’s discretion. The Tribunal did consider the issue of his relationship with his daughter at [16], [34], [37], [48], [53] – [55]. At [53] the Tribunal stated:
53. I have considered that there is no expert or psychological evidence or assessment in this matter. The applicant has claimed he wishes to see his daughter, and that his (now divorced) wife supports that. However the evidence is there has been no contact between the sponsor, or her daughter, with the applicant for the year since the applicant has been in custody. I have taken the separation of family members into account in my considerations. I have taken into account the importance of the applicant’s wishes to see his daughter. But I have given significant weight to the fact an intervention order was put in place by the Magistrates’ Court, the applicant breached that order, and there was an incident involving acts of violence resulting in the child’s grandfather being taken to hospital with serious burn injuries. It is not clear on the evidence before me that it is in the child’s best interest to have contact and involvement with her father in the future.
The Tribunal was aware that submissions were made that the applicant wished to have a meaningful relationship with his daughter and that the ex-wife and father-in-law supported that. I accept the first respondent’s submission that there is no realistic possibility that the decision would be any different had the Tribunal sighted the letter from the father-in-law.
Regarding ground 2, I do not accept that had the Tribunal taken the step of locating the father-in-law’s letter it would have had a realistic possibility of leading to a different decision. The applicant’s representative gave the Tribunal an outline of what was said in the letter and then the Tribunal considered those submissions as outlined above.
There is no jurisdictional error arising as a result of the Tribunal’s failure to make an enquiry regarding the father-in-law’s letter.
Ground 3 - alleged failure on the part of the Tribunal to make its own assessment of risk
The Tribunal is not required to make a finding as to the degree or nature of the risk, save to make a finding that there may be a risk. The Tribunal is not required to ‘quantify the risk’: Ferdous at [33].
At [41] of its decision, the Tribunal set out its reasons for being satisfied that the applicant was committed to stand trial on serious charges of violence that occurred in the ex-wife’s home in direct breach of an intervention order taken out to protect the ex-wife and her child, satisfying the “low threshold requirements” of section 116(1)(e)(ii).
I can see no error in the manner in which the Tribunal approached this task in making that assessment.
Ground 4 and 5 - degree and nature of risk
These grounds are essentially a variation on the matters raised in ground 3. This ground must fail as the Full Court has stated in AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 (‘AZAFQ’) at [55] that the Tribunal has no duty to evaluate the risk in any particular way or to ascribe any particular characterisation to the quality of the risk.
At [48], [53] – [56] the Tribunal considered risk which the applicant posed. Having regard to AZAFQ, it was not required to more.
As to ground 5 that the Tribunal failed to take into account the applicant’s submissions that he no longer posed any risk as a result of changed circumstances, the courses that he had undertaken in custody and his lack of a criminal record, the Tribunal considered those matters at [34], [37], [38], [40] and [47].
Ground 6 – not waiting for a criminal trial
At [25] the Tribunal stated:
[…] In the hearing the representative submitted the tribunal should delay any decision until after the County Court trial is concluded. I disagree; the tribunal would not fall into jurisdictional error if it does not wait for the County Court trial to conclude before making its findings. The applicant elected to have a contested committal hearing, and the magistrate heard the evidence of witnesses, and concluded there is sufficient evidence for the applicant to be committed to stand trial. I find the magistrate has found there is direct evidence of sufficient probative weight that there is a reasonable basis for the charges against the applicant. The tribunal can rely on this finding of the magistrate that there is a reasonable basis for the charges laid against the applicant.
The Tribunal did not fall into jurisdictional error by considering whether it was lawful to make its decision prior to the conclusion of the criminal trial rather than whether or not it should proceed in the exercise of discretion. The Tribunal considered the applicant’s representative’s submission and found that it would not be unreasonable for it to proceed to make a decision prior to the conclusion of the County Court trial. The Tribunal explained its reasons for doing so and those reasons were based on the evidence before it.
There was an intelligible basis for the Tribunal to proceed to determine the matter rather than adjourning the hearing until after the conclusion of a County Court Trial. This is certainly not a decision which is one at which no rational or logical decision maker could arrive on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 at 130.
The evidence that was before the Tribunal which included that an intervention order was taken out against the applicant, that he had breached that intervention order, and that there was a history of family violence perpetrated by the applicant (see [29] of the decision)) were sufficient to ground a finding that the applicant might be a risk to the sponsor and her daughter as was explained in [30] of the decision. There was an intelligible basis for the Tribunal to proceed to determine the matter rather than adjourning the hearing until after the conclusion of a County Court Trial.
Conclusion
For the above reasons this application is dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 22 May 2020
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