Cervantes v Minister for Immigration and Citizenship
[2012] HCATrans 123
[2012] HCATrans 123
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S65 of 2012
B e t w e e n -
CARLOS VLADIMIR GARCIA CERVANTES
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Defendant
Application for an order to show cause
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 21 MAY 2012, AT 9.31 AM
Copyright in the High Court of Australia
MR G.T. JOHNSON, SC: May it please your Honour, I appear with my learned friend, MR D.H. GODWIN, for the plaintiff. (instructed by Legal Aid (NSW))
MR N.J. WILLIAMS, SC: May it please the Court, I appear with MR B.D. KAPLAN, for the defendant. (instructed by Sparke Helmore)
HIS HONOUR: Yes, Mr Johnson. Am I right in thinking that you rely on the plaintiff’s affidavit filed on 15 March 2012?
MR JOHNSON: Yes, I do, your Honour. May I take that as read?
HIS HONOUR: Yes, I have read it.
MR JOHNSON: Thank you, your Honour.
HIS HONOUR: Are there any objections to it, Mr Williams?
MR WILLIAMS: No, your Honour.
HIS HONOUR: Do you wish to cross‑examine the deponent?
MR WILLIAMS: No, your Honour.
HIS HONOUR: So we will treat that as being in evidence. Is there any other evidence you rely on? There is an affidavit of service, but that does not really go to any ‑ ‑ ‑
MR JOHNSON: No. It is only the affidavit of the plaintiff himself. Could I just check, we sent to the Registry a paginated copy of that affidavit for your Honour. Is that the one your Honour has?
HIS HONOUR: I have both of them.
MR JOHNSON: Thank you, your Honour. Your Honour, other than that ‑ ‑ ‑
HIS HONOUR: There is no other evidence for the plaintiff?
MR JOHNSON: No other evidence, your Honour.
HIS HONOUR: Do you have any evidence, Mr Williams?
MR WILLIAMS: No, your Honour.
HIS HONOUR: Very well.
MR JOHNSON: Thank you, your Honour. Your Honour will also have received the plaintiff’s submissions on the summons to show cause filed on 15 March 2012. Does your Honour have those?
HIS HONOUR: Yes, I have those.
MR JOHNSON: My friend filed submissions on 16 May 2012. Does your Honour have those?
HIS HONOUR: Yes, and I have read both of those documents closely.
MR JOHNSON: Your Honour, firstly, in relation to the affidavit of the plaintiff, it makes clear that the plaintiff did move quickly to try to have the decision reviewed by the Administrative Appeals Tribunal but was frustrated by events, such events beyond his control such that that opportunity was lost.
HIS HONOUR: That may be unfortunate, but it is not actually, strictly speaking, relevant to your application today.
MR JOHNSON: That is true, your Honour, yes, and it is not in dispute, your Honour, that neither the Federal Magistrates Court nor the Federal Court of Australia can receive us.
HIS HONOUR: Yes, we have to.
MR JOHNSON: Your Honour, moving on, as your Honour will have noticed, this was a matter in which the Minister cancelled the plaintiff’s visa, the decision, however, being taken by a delegate rather than the Minister himself. It was a cancellation decision under section 501(2) of the Migration Act and the way that provision is structured, there is a gateway and then a discretion. The gateway is reasonable suspicion that the plaintiff did not pass the character test and there is no dispute in this case that the Minister had such reasonable suspicion and was entitled to have such reasonable suspicion having regard to section 501(6)(a) and (7)(c). So there is no dispute about that part of it.
The plaintiff’s case relates entirely to the discretionary component of decision making under section 501(2) and, in particular, to whether the delegate observed the statutory command in section 499(2A) of the Migration Act to comply with the Minister’s direction under subsection (1) of that provision. Section 499(1) allows the Minister to:
give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
It is not in dispute that the Minister did that, and your Honour has been provided with copies of Direction No 41 which was the relevant direction in this case. If your Honour is referring to the additional material filed by the plaintiff, the direction can be found starting at page 16 of that bundle.
HIS HONOUR: Yes, I have that.
MR JOHNSON: As your Honour will have observed from the plaintiff’s written submissions, the plaintiff asserts in this case that the delegate failed to comply with the direction in four ways. I will just take your Honour to those four ways or four paragraphs and show your Honour how they fit into the direction as a whole. If your Honour goes to page 17 of our bundle, there is set out clause 5 of the direction, which is a preamble, and 5.2(1) at the end indicates that:
The Direction is binding on all decision-makers.
That is something, of course, which flows from the Act itself, 499(2A) rather than this document, but nonetheless, that is noted at the front. A large part of the document is concerned with the question of the character test and how to deal with that. Then one comes to exercising the discretion. That starts with the paragraph numbered 8 which, in our bundle, is at page 24. Paragraph 9 indicates that – skipping over a few immaterial words:
decision‑makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) –
to which we will come –
should be taken into account where relevant.
Down below that in subclause (2):
Decision‑makers should only take into account directly relevant considerations.
Then we come to the primary considerations and those are set out in paragraph 10(1) and one of those was:
the protection of the Australian community –
which, as your Honour will have observed, was taken into account and weighed heavily against the plaintiff in the present case. The next two, (b) and (c), we can skip over in this particular case, but (d), other “relevant international obligations” and one of those is:
the best interests of the child –
Now, when one comes to examine the best interests of the child, one comes to, at paragraph 10.4.1 of the direction, which is at page 28, and if one goes to subparagraph (5) of that, which is on our page 29, one finds subparagraph (5) which says that:
In considering the best interests of the child, the following factors are to be considered –
Now, the two which we say were not considered here, having regard to the statement of reasons, were (c), that is:
the extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday –
and (k) –
any known wishes expressed by the child –
Now, before I move on, your Honour, might I just note that the idea of a full parental role is perhaps bristling with questions of fact for the decision‑maker. People might differ as to what a full parental role is, but, nonetheless, it is an integer that needs to be taken into account, that is required to be taken into account by the direction in addition to those other subparagraphs. Now, if one looks at (a) for example, (a) refers to the:
the nature of the relationship between the child and the person –
whether, to use the words of (a) –
regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child –
and (b) refers to:
the duration of the relationship –
(f) refers to:
the likely effect that any separation from the person would have on the child –
Now, (c) and (k), the two that we say were not considered are presumably intended to add to these other paragraphs and so we say it would be no answer to a complaint that the delegate failed to observe the direction with respect to (c) and (k) to say that the delegate did look at whether or not there was, for example, regular, meaningful contact between the person and the child, or even the effect that the separation from the person would have on the child. Then if your Honour goes to paragraph 11 of the direction, which is on our page 30, that refers to other considerations and, as the note observes:
These are not primary considerations.
Subclause (1) provides that:
In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.
If one drops to (3):
These other considerations include –
and there is then quite a long list, one of which is (f), towards the bottom of our page 31, which is the:
level of education ‑ ‑ ‑
HIS HONOUR: It is actually (B), I think.
MR JOHNSON: This document is set out rather strangely. I think that that (B) is still part of subclause 11(3). I think that the As and the Bs probably should be more indented.
HIS HONOUR: You are really concentrating on the last seven lines on page 31?
MR JOHNSON: Yes, exactly, your Honour, (f), the last seven lines, in particular, your Honour, the first two lines of (f):
level of education, for example the following would be considered in the person’s favour –
and then over the page (ii):
any efforts made by the person to improve their education and, therefore, increase their capacity to positively contribute to the Australian community through employment or other activities –
I will quickly run through in a moment what we say in relation to all of these integers, but just in relation to (f) to which I have just taken your Honour, not only must regard be had to the level of education, in this case the plaintiff was well advanced towards completion of a Bachelor of Commerce and had certain commendation from the dean as to his success, but also, he is entitled to have considered in his favour not just efforts made by him to improve his education, but the second component, therefore, increase his capacity to positively contribute to the Australian community through employment or other activities.
The material before the decision‑maker, let alone the statement of reasons itself, the material before the decision‑maker certainly includes evidence as to his educational attainment. The reasons do not - reading the reasons, one would have no idea that he had a diploma in accounting, that he had progressed as he had in his commerce degree, but even looking beyond the reasons to the whole body of material before the decision‑maker, this idea of his capacity to contribute to the Australian community seems to be absent from consideration. Education, of course, involves benefits for oneself and one’s family, but there is also another benefit, the ability to contribute to the community. That ability, that he is going to contribute to the community through education, is not considered at all. So in a nutshell, our ‑ ‑ ‑
HIS HONOUR: To be realistic, though, if one has a bad criminal record and the highlight of that criminal record is a sentence for nine years imprisonment in connection with drug trafficking, if you have a degree in commerce or a qualification in accounting, what prospect do you have of being able to practise professionally as an accountant and what prospect do you have of acting in commerce in a way in which a degree in commerce might be useful?
MR JOHNSON: One might be impeded relative to some person who does not have the taint of that conviction, but that is not to say that the person cannot still contribute and better contribute to the community by reason of his or her qualification. Our complaint, your Honour, is that these factual assessments, questions such as the one that your Honour put to me, which are ultimately ones for the decision‑maker, were not reached here because the Minister or, should I say, the delegate simply did not consider these integers which, by reason of the direction, had to be considered.
So what we are saying is, in relation to each occasion, that the delegate needed to identify the level of education reached by the plaintiff and take that into account and also to take into account in his favour that double‑barrelled integer in (ii). Once she took that into account, how he or she – it is a he in this case, in fact – how he or she then balances that at the end of the day is another matter, but the jurisdictional error we say is not to comply with the requirement in the direction – not to comply with the requirement in 499(2A) to comply with the direction which, in turn, requires the decision‑maker to identify and consider the integers to which I have referred.
Your Honour, at that point if I could perhaps just refer to those integers a little more fully. I have already made some submissions to your Honour upon the first of them, namely, paragraph 10.4 ‑ ‑ ‑
HIS HONOUR: It is 10.4(5)(c) and (k).
MR JOHNSON: Thank you, your Honour. Paragraph 10.4(5)(c) and (k), yes, and the way in which they are additional criteria. With respect to the wishes expressed by the child, there was no submission to the Minister or to the delegate personally by Divy, the child himself, but there was a letter written by his mother, which is on page 160 of the affidavit, and we say that that letter and, in particular, the first third of the page should be read as the communication of Divy’s preference on his behalf. The mother says there:
I was married to Carlos Garcia for 3 years and we have a son 9 years old, his name it is Divy Garcia lives with me in Sydney and he is Australian Citizen by birth. I would like to let you know about my son’s feelings and problems he has had for these past 4 years, my son realizes his father it’s in a jail is very hurt, this is difficult for him, every time when we going to visited his dad he is always asking me heaps of questions.
When can my dad stay with me?
Why I don’t have my dad?
What we say about that is simply that that is an expression of Divy’s preference communicated on his behalf, an expression of his wishes. My friends have said against us in written submissions, well, what does it matter if that is not taken into account because in this case the delegate ultimately found that the interests of the boy were, in fact, in favour of his father remaining rather than his father going. We say, well, that is true enough, that the best interests of the child were found to favour the applicant remaining rather than going, but the submission that it does not matter is something that we cavil with because having found what the interests of the child favoured, the decision‑maker still at the end of the day had to weigh up the interests of the child against the other factors at play, including the consequences of this conviction.
Our case, your Honour, is that if the decision‑maker had have recognised the requirement under the direction to have regard to the boy’s wishes and had the decision‑maker identified those wishes and taken them into account, that may have increased the weight that the decision‑maker ultimately gave to the interests of the child as compared with the interests of the Australian community.
Similarly, this question of full parental role, had the decision‑maker addressed that and had the decision‑maker concluded as a matter of fact that the plaintiff would take a full parental role until his son’s 18th birthday, that might have affected the ultimate balance which was drawn between the child’s interests on the one hand and the delegate’s perception of the need to protect the Australian community.
In relation to level of education, I think I have already made the submission to your Honour that nowhere in the reasons do we glean that the plaintiff has a diploma in accounting or has progressed as he has in his commerce degree, nor does one glean in the reasons or in the issues paper any identification of whether or not by reason of his educational attainments he is better able to contribute to the community as opposed to his own advancement or that of his family. So that is essentially the positive case of the plaintiff.
At the risk of perhaps descending into things which I should be saying in reply, there are some further aspects of my friend’s submissions which I would just like to shortly note in addition to the point that I made before. Our friends have referred in paragraph 9 to some Federal Court authority, including WAEE, which is one of the cases that your Honour has been provided by our friends. The principle that the defendant is relying upon through reference to those cases is the idea that a decision‑maker in a refugee case such as WAEE is under no obligation to refer to or comment upon every item of evidence or every contention. Now, with respect, that is not the territory that we are in at all.
The cases that my friend cites are not cases where directions under section 499 were at play. Our complaint is not merely that the reasons do not cavil with some piece of evidence or some submission. Our complaint is that there are four integers, which we have identified, which the direction required the delegate to consider and they have not been considered. Also, the cases that are referred to by our friends in paragraph 10 are not cases which involve decisions by delegates which are governed by section 499.
Also, our friends invite your Honour to scrutinise the issues paper and the attachments and to infer that particular integers that we complain were not considered were considered with reference to some things said in the issues paper. Our short answer to that, focusing on our friend’s paragraph 10 for a moment, is that if one goes to the paragraphs of the issues paper that our friend refers to, 61 through to 70, one does see some discussion about the best interests of the child, but nowhere in that discussion do you see any identification of Divy’s wishes, let alone any consideration of Divy’s wishes and at no stage during those paragraphs do you see this question of whether or not the plaintiff would take a full parental role being addressed. Similarly, when one comes to the ‑ ‑ ‑
HIS HONOUR: Just one moment. In the direction, it is necessary to take account of the best interests of the child. Is there any mandatory obligation to take account of what the child says?
MR JOHNSON: Yes, in our submission. If your Honour goes to (5)(k), there is reference there to “any known wishes expressed by the child”. Here we are saying his wishes were expressed on his behalf by the mother.
HIS HONOUR: Yes, I see. I follow.
MR JOHNSON: The opening lines of (5) contain the words of obligation.
HIS HONOUR: Yes.
MR JOHNSON: Then in relation to the part of our friend’s submissions dealing with education, as I have already submitted, the relevant paragraphs that we complain were not observed required regard to be had not only to his level of education and his efforts to improve his education but also to that tendency to increase his capacity to contribute to Australian society. Nowhere is that taken into account. The height of his educational qualifications is not apparent from the reasons, and what the reasons do say in paragraphs 10 and 11 simply do not identify and weigh the two particular integers that we are complaining were ignored.
So it is not just a question of the location of 10 and 11 within the reasons; we say that 10 and 11 simply do not weigh what we say ought to have been weighed, what we say ought to have been identified and weighed, and certainly there is no evidence of that last factor, (f)(ii), if accepted being taken into account in the plaintiff’s favour. If your Honour pleases, those are the plaintiff’s submissions.
HIS HONOUR: Thank you, Mr Johnson. Mr Williams, perhaps if you could address the question raised by Mr Johnson’s submission that the delegate needed to identify the level of education reached, and also – I know you have said something about the second question in your written submissions ‑ Mr Johnson’s submission that there was no discussion of the son’s wishes; if you could concentrate on those two points?
MR WILLIAMS: I will do that, your Honour. The starting point is in paragraph 3 of the reasons. In short, the substance of our case is that the delegate has taken account of each matter that he was obliged to take into account and the complaint is one about the form of the reasons rather than anything of substance. Your Honour, page 40 I apprehend is the – page 40 of the affidavit – we have only received the paginated affidavit in Court so my references might be unhelpful, but I believe page 40 is the statement of reasons, and paragraph 3 of that ‑ ‑ ‑
HIS HONOUR: Actually, we are very fortunate, we have many copies of the statement of reasons but let us go to page 40.
MR JOHNSON: I do apologise – I am sure my friend does not have it. That is a slip up. It is not ‑ ‑ ‑
MR WILLIAMS: It is nothing deliberate, but as I said ‑ ‑ ‑
MR JOHNSON: I do apologise. I am sure my friend has not got it. That is slip‑up, it is nothing deliberate. Perhaps we had said more to your Honour, and without giving it to my friend.
MR WILLIAMS: Yes, I am sorry, I was not intending a criticism. I was merely excusing myself in advance if my references are unhelpful. I believe we have one now and I have noted it at the Bar table, and I believe it is page 40, paragraph 3.
HIS HONOUR: Yes.
MR WILLIAMS: Your Honour sees there under “Discretion” that the delegate refers in the second line to having “assessed the information set out in the Issues Paper and attachments”, so the starting point is that the delegate has assessed the information set out in the issues paper and attachments. The same point is indeed apparent on the preceding page, page 30, in the body of the decision itself. At the top of the decision:
I have considered all relevant matters . . . 499 of that Act and all evidence before me provided by, on behalf of ‑
So the starting point is that the delegate has taken account of those matters. The same point is again made in paragraph 24 of the statement of reasons, a couple of pages further over, three or four pages further over:
I considered all relevant matters . . . Direction 41 under s499 of that Act and (3) all other evidence available to me, including evidence provided ‑
So, clearly enough, all of that material was taken into account. In relation to the best interests of the child, within the statement of the reasons the wishes are referred to ‑ ‑ ‑
HIS HONOUR: Sorry to interrupt, the letter from the mother was one of the attachments to the issues paper.
MR WILLIAMS: That is so and, indeed, that letter from the mother was the only source of the statements that your Honour will find in paragraphs 16 to 19 of the statement of reasons. It must be about page 43 or thereabouts, I think. Paragraph 17:
taken account of the close relationship between the two –
Now, there was a reference in the applicant’s own letter to his close relationship –
contact by visits and telephone calls –
That comes in part at least from the letter from the mother. Paragraph 18 is very clearly from the letter from the mother, which is at page 160:
I have considered that Divy’s mother is supportive of their relationship and of . . . her former husband, remaining in Australia . . .
19. I have noted the concerns expressed by Divy’s mother that removing [the applicant] . . . will have an adverse impact ‑
Now, all of that material comes from the very section of page 160 that our friends complained was not taken into account. So, very plainly, the delegate has not merely read the letter but has had close regard to the key parts of it.
The only thing the delegate has not done is in a formulary way to go through each item in this list and say the direction requires the following factors to be considered. I have taken account of any known wishes expressed by the child. There is a matter of substance, the delegate has had close regard to the relevant material, even if he has perhaps prudently declined to work his way in a formulary way through the direction and set out each matter and recite having taken it into account. So our friends complain that the issues paper itself did not refer to the child’s wishes, and our friends refer to paragraph 61 and following. I will see if I can get a page reference. I think that is page 34, your Honour.
HIS HONOUR: Yes. That is a two‑line paragraph about having “one Australian born child”?
MR WILLIAMS: Does your Honour have paragraph 60?
HIS HONOUR: I have paragraph 60 which begins, “In subparagraph 10.4.1.5”.
MR WILLIAMS: That is so. If your Honour goes slightly further down within paragraph 60, our friends referred to 61 through to 65 I think, but we call attention to 60 which is the introduction. There is then a list of the matters in the opening sentence:
subparagraph 10.4.1.5, the Direction sets out a number of factors to be considered in ascertaining the best interests of the child. These include –
and they are then listed -
the extent to which the person is likely to play a full parental role –
That is a faithful recitation of paragraph 5(c) of the direction, 10.4.1(5)(c). Then towards the foot of paragraph 60 –
any known wishes expressed by the child –
again, a faithful recitation of paragraph (k). There is then set out the applicant’s expression of desire to maintain contact. Then in paragraph 65 there is a reference to the letter at page 160, attachment O, from the mother, and a summary of the substance of it; admittedly a summary that does not include the questions that the child had asked, but plainly enough includes the substance of what the mother had said about her perception of the relationship between the applicant and their son and an expression of her view of the best interests, which incidentally coincided with the view that the son was expressing.
There might be a need in some cases to refer separately to each of these factors in a case when the factors point in different directions. So, for example, if the mother were to express the view that the best interests of the child would be served by removal from Australia of an applicant, but the son took the opposite view, that would be a case that would normally necessitate some discussion of that divergence of view and the particular view expressed by the child.
In this case, the matter of which the applicant complains, these two five or seven‑word sentences that he says were not taken into account, are contained within a letter which points in precisely the same direction from the mother, and in those circumstances – these are, of course, not mandatory considerations expressed in those terms but merely factors that are to be considered. Plainly enough, in our submission, they were considered because paragraph 60 identifies each of them as a matter to be considered. Paragraph 65 refers to the material, and the letter was expressly taken into account.
The fact that they were not recited does not indicate any failure to have regard to those matters or failure to consider those matters in reaching the view that was ultimately reached, that the best interests of the child strongly favoured the applicant remaining in Australia and perhaps if I can go back to that in the reasons? This is at about page 44, I think, paragraph 25 of the reasons. I am not sure of the page number, it might be 43.
HIS HONOUR: Page 43.
MR WILLIAMS: If your Honour sees in paragraph 25 – I will pass over rehabilitation for a moment – but toward the foot of that paragraph there is a reference to:
stronger familial links to Ecuador –
but then –
I accept that the best interests of his 11 year old Australian citizen son would be for his father to remain in Australia, and this is a strong countervailing factor.
So it is a matter that has been given very considerable weight. All of the material here in relation to the applicant and his relationship with his son and the interests of the son pointed one way; the delegate had regard to all of that material, took it into account, recognised its strength, but did not regard that as sufficient to outweigh the interests of the community in the removal of a person who had been convicted of a serious offence and served a six‑year term for it.
There is no, in our submission, failure to take account of that matter when all of the evidence is taken into account, and the applicant’s complaint in this respect really amounts to minute analysis of decision‑making reasons, which as this Court said in Wu Shan Liang and since are meant to inform rather than provide an opportunity for overzealous scrutiny upon judicial review.
If I can then take your Honour to just one decision? Factually, I will come back to the material about education. If I can take your Honour to the decision of Justice Kenny in Yalniz - Yalniz is behind tab 4 of our folder. If your Honour were to go to page 6 of the print, the top of page 6 above the heading “Consideration” there is a reference to the submission that was put:
although the Minister was not bound to take into account the best interests of Mr Yalniz’s children, she had in fact done so.
Of course, the Minister is not bound by this direction that he has given the delegates, or she at that time I think had given the direction, but in any event. Paragraph 18, her Honour proceeds by assuming – and this is in the third line:
that, if the Minister had failed to have regard to the interests of his children, her decision would have been affected by jurisdictional error.
Her Honour then proceeds to analyse the case by reference to the factors, and that really goes through from – it starts at paragraph 21 but the substance is from paragraph 22:
It is clear from the Minister’s reasons that she read and considered the Issues Paper, as indeed her reasons said she had done.
There is a reference then to the “hardship” and the like, a case that is really quite similar to the present where the matters are set out in more detail, as one might expect. Then in paragraph 23:
There was no need in this case for the Minister to go through a list of factors that might have informed her conclusion . . . Sometimes this may be appropriate but in other cases it may be sufficient, as in this case, to adopt an approach that assumes the relevant factors point to one conclusion – that it will be in the best interests of children to remain with their parents –
Your Honour, perhaps contrary to my promise to go to only one decision could I take your Honour back to tab 2? I will just go to one paragraph in the decision WAEE, it is a decision of Justices French, Sackville and Hely. If I could take your Honour to paragraph [46] on page 641, and if I could just invite your Honour to peruse paragraph [46]?
HIS HONOUR: I have protested before and I will protest as long as there is breath in my body, this phrase:
not to be scrutinised “with an eye keenly attuned to error” –
is wrong. Ears are attuned to error; eyes are focused excessively on error. I think Mr Justice Lockhart was the villain. I have read the paragraph.
MR WILLIAMS: Yes.
HIS HONOUR: Of course, Mr Johnson says he is not complaining that there was a failure to refer to every piece of evidence. He is complaining, he says, of a failure to refer to four fundamental integers. Your answer is really that in substance the integers are referred to and he did not actually say ‑ you have not said this, but if he were right it is a little like appeals to the Court of Criminal Appeal against summings‑up; you sit back in an armchair, pour yourself a glass of something and then spend the next two hours shredding to pieces what someone has said. It involves an excessively pedantic analysis of the reasoning.
MR WILLIAMS: And a contextual analysis. Here, when context is taken into account, having regard to the substance of what the delegate says, it cannot seriously be contended that the delegate did not pay close regard to the best interests of the child, including the child’s wishes, because they were set out in the short letter from the mother which the delegate plainly had close regard to. The delegate was aware from having read the issues paper that the express wishes of the child were in issue, and plainly enough took that into account.
The issue, in our submission, is one of substance rather than form. It might be different if one could look at the material and say, for example, the delegate said that he took account of the child’s wishes, but made a decision in relation to the best interests of the child that were directly against that. Here everything pointed one way and the delegate took it into account.
Your Honour, could I turn then to the question of education? The applicant’s complaint is in substance that the delegate did not deal with this material twice. There is a reference to a very specific phrase further on in the direction, but it cannot again seriously be contended that education escaped the delegate’s attention.
If I could take your Honour to the reasons? I think that is about 40, and going over to the next page, paragraph 10 - this is under the heading of recidivism, but there is an express reference to “willingness to undertake numerous rehabilitation, educational and vocational programs”. There is then a reference in 11 to consideration of “the parole officer’s positive comments in relation to . . . rehabilitation efforts and future prospects”.
Now, again, this is discussing recidivism, but recidivism and career prospects are matters that are closely intertwined in the real world and they are not necessarily to be considered by ticking them under each separate heading; they are to be considered as a matter of substance. If your Honour then goes through to the end of the reasons on page 43, paragraph 25, there is a reference again to the steps taken toward rehabilitation, and again the educational matters were part of that. The parole officer’s report – there are two – one is attachment G. I will have to see if I can find a page reference to that.
HIS HONOUR: I think it is probably around 97.
MR WILLIAMS: Page 95 it begins. There is a reference at the foot of the second page, 96, to “Program Participation”, “Certificate II in Engineering”, “skills in welding”. At the top of 97, “currently enrolled, and has completed three years of a distance degree”, notation relating to a “Bachelor of Commerce”, “Notations from staff confirm that the inmate is committed to the program, and appears to possess the capabilities and drive to complete the qualification”. Going I think three pages further over into the second probation report, onto the second page of the second probation report, under the heading at the top of the page “Program Participation”.
HIS HONOUR: Sorry, I just missed that. I am on page ‑ ‑ ‑
MR WILLIAMS: “Program Participation”.
HIS HONOUR: Yes.
MR WILLIAMS:
completed the Alcohol and Other Drug Program . . . Transport and Distribution . . . The inmate reported that prior to incarceration he had obtained a Diploma of Accounting and he is currently undertaking the degree course through the University of Southern Queensland. He further reported that he has obtained some instruction in welding which he hopes to utilise to obtain employment upon release.
So when the delegate refers to the probation and parole report in that respect, this is the material that the delegate is referring to. The submission paper itself, the issues paper itself did refer and this is in paragraph 78 of the issues paper. Page 36 is the reference I have just given your Honour to level of education in paragraph 78, and 79, undertaking studies, “no evidence . . . to indicate [he] . . . may have difficulties in understanding or responding to”.
Going back to page 31, there is a reference again to – in the middle of this page, page 31, “Program Participation”, reference again to the educational matters, and in 45, accommodation, et cetera. On the following page, paragraph 48, there is a reference to his letter:
trying to “benefit” from his period of incarceration and had completed numerous rehabilitation, educational and vocational courses –
Does your Honour have that in paragraph 48?
HIS HONOUR: Just slightly behind you but I will catch up, do not worry.
MR WILLIAMS: I am sorry, your Honour, my references have not been helpful.
HIS HONOUR: Yes, I have got paragraph 48 on page 32.
MR WILLIAMS: Yes, a further reference to “rehabilitation, educational and vocational courses”.
HIS HONOUR: Yes.
MR WILLIAMS: So when one has regard to all of those matters and to the fact that the delegate did take them into account, expressly referred to them in the reasons in relation to the issue of rehabilitation, and expressly took into account all of the material attached to the issues paper, there cannot, in our respectful submission, be room for serious doubt that the delegate took educational effort – first of all, level of education into account, going to the criteria that is set out in our friend’s statutory and other material at page 31, the level of education was plainly set out at some length, and as an example:
for example, the following would be considered in the person’s favour:
(i) the person’s inability . . . to advocate –
Well, that was considered and dismissed, as it should have been –
(ii) any efforts made by the ‑ ‑ ‑
HIS HONOUR: Page 31, you are talking in relation to the direction now, are you?
MR WILLIAMS: Yes, in the direction, at the foot, “level of education” and the references I have taken your Honour to ‑ ‑ ‑
HIS HONOUR: I think one of Mr Johnson’s points was that there was no specific consideration of whether all this education was going to increase the plaintiff’s capacity positively to contribute to the Australian community through employment or other activities.
MR WILLIAMS: Yes, it is a very specific complaint, with respect. It requires, first, that this subclause be read in a very particular way. When one looks at (ii) it is:
any efforts made by the person to improve their education –
Now, that matter plainly was dealt with at considerable length in the material before the delegate, and plainly the delegate took that into account. Now, plainly, the delegate took into account efforts in relation to employment. The delegate did not use the words “increase his capacity to positively contribute to the Australian community”, but the substance of this undoubtedly was considered, in our submission.
HIS HONOUR: One possibility is anyone who tries to improve their education within reason naturally increases their capacity to positively contribute to the Australian community. In short, the words after “and, therefore” are just expressing something that is gravid in what has gone before.
MR WILLIAMS: In a sense, yes, your Honour, although there may be cases, for example, in which a person undertakes ‑ it is difficult to think of specific examples, but a person might undertake educational programs that plainly have no capacity to assist their contribution to the Australian community. A person with a long record for fraud undertaking accounting studies might be thought to be wasting their time, and this might be thought to be something of a qualification. So, in a sense, it is a negative matter that was not taken into account against him.
It may well have been that accounting qualifications and commerce might prove difficult fields for him in light of his period of incarceration and conviction on a serious offence, but that is not a matter that was taken into account against him. It was all taken into account in his favour, and was taken into account in the sense of examining the possibility of him settling back into the Australian community, accommodation with his
former wife and seeking productive employment. So we say that our friend’s point is essentially a semantic one, and that as a matter of substance these matters were considered and considered closely. As for matters with which I can assist, those are our submissions.
HIS HONOUR: Thank you, Mr Williams. Yes, Mr Johnson.
MR JOHNSON: Thank you, your Honour. Your Honour, just shortly in reply. Your Honour, reading the evidence and reading the issues paper is not complying with the direction. The direction is something which has a mandatory quality about it by reason of section 499(2A), and the Minister’s direction has in fact significantly complicated what needs to be done by delegates in the course of exercising their discretion under 501(2).
Each of the integers to which we have pointed are integers which must be considered, must be taken into account, and one cannot do that without identifying them and weighing them, and that, with respect, has not been done. It is not a matter of being formulaic or being overzealous in any way, it is simply a matter of acknowledging the effect that this direction under 499 has on what might otherwise be a relatively general and unfettered discretion.
Your Honour, our friend took your Honour to WAEE. I might go to the same case, your Honour, just for convenience just to make another point. WAEE is in my friend’s bundle. I think it is tab 2 for your Honour in my friend’s bundle. WAEE is reported at 75 ALD 630, and my friend has taken your Honour to paragraph [46]. Your Honour has already noted in debate with my friend that the plaintiff’s point in the present case is one of – or it is a complaint of failure to have regard to a mandatory integer, rather than simply failing to cavil with some piece of evidence or a submission. If I could direct your Honour just to the first sentence of [47] which follows the paragraph that my friend directed your Honour to, in [47] the Full Court of the Federal Court observes that:
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.
Just pausing there, there is nothing novel about that proposition, of course. In Yusuf this Court, whilst finding that a breach of the reasons provision in the Migration Act relating to the Refugee Review Tribunal was not itself a reviewable error, observed that reviewable error, failure to take into account a relevant consideration, for example, could be inferred from a failure to mention a matter in a statement of reasons. In [47] of WAEE the Full Court went on:
that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
Well, here the reasons, with respect, are not comprehensive and the issues that we are talking about have not been identified. Nowhere in the text of the issues paper or in the statement of reasons is it identified what the boy’s wishes are. Nowhere is this question of the plaintiff’s ability to contribute to Australian society as opposed to his own benefit or betterment or that of his family as a result of his educational activities. Nowhere in the issue statement or in the statement of reasons is full parental role addressed as a separate integer.
If one confines oneself to the statement of reasons without going to the issues paper one would have no idea, as I said before, that the man had achieved a certain level in his study of accounting and commerce, the diploma and being largely through a degree. So what we say to your Honour is that the complaints that the plaintiff makes are matters of substance. These are steps which are required by the direction itself and by section 499 which were not undertaken. Had they have been undertaken they could have affected the result. We do not have to show that they would have affected the result, but they could have affected the result.
Just a couple of other very small matters of detail, your Honour. In my friend’s submission your Honour was taken to paragraph 60 of the issues paper. That is at page 34 of the affidavit. I will just give your Honour an opportunity to ‑ ‑ ‑
HIS HONOUR: Yes, I have found that.
MR JOHNSON: Paragraph 60 is simply an effort to summarise some aspects of 10.4.1.5. The likelihood of the person playing a full parental role and any known wishes expressed by the child are identified in that paragraph as integers along with a lot of other integers, but nowhere in the subsequent analysis does one find either of those specifically commented upon. Our friends referred your Honour in relation to Divy’s wishes. Our friends referred your Honour to paragraph 65 where the mother’s submission is referred to, but that summary of the mother’s submission fails to bring out that she was expressing on behalf of Divy a wish. So neither paragraph 60 nor paragraph 65, with respect, answers the plaintiff’s complaint.
The fact that the reasons give Divy’s interests a certain amount of weight, even a great deal of weight, does not mean that more weight would ultimately have been given to them had the direction been complied with. Your Honour, those are the plaintiff’s submissions.
HIS HONOUR: Yes, thank you, Mr Johnson.
On 15 April 2012, the plaintiff filed an application to show cause. The defendant is the Minister for Immigration and Citizenship. The application seeks writs of certiorari and prohibition in relation to a decision made on 2 December 2012 by a delegate of the defendant to cancel the plaintiff’s Partner (Residence) (Class BS) Subclass 801 (Spouse) Visa (“the visa”).
The visa was granted on 13 June 2003. It was granted because the plaintiff’s then spouse was an Australian citizen. The plaintiff and his spouse had a son who was aged 11 at the time of the delegate’s decision. On 18 June 2007, the plaintiff was convicted of a crime which the sentencing judge described as “extremely serious” and for which the plaintiff was sentenced to nine years imprisonment.
On 2 December 2011, the delegate cancelled the visa pursuant to section 501(2) of the Migration Act 1958 (Cth) (“the Act”). The ground of cancellation was that the delegate reasonably suspected that the plaintiff did not pass the character test in section 501(6)(a) and (7)(c) of the Act and was not satisfied that he passed the test.
The plaintiff applied for merits review of the delegate’s decision in the Administrative Appeals Tribunal. However, the application was lodged late and the Tribunal determined that it had no jurisdiction to review the delegate’s decision. The ground of the plaintiff’s application to this Court is that the delegate allegedly failed to comply with Direction No 41 issued by the defendant under section 499 of the Act by failing to consider four matters contrary to section 499(2A) of the Act. The first matter concerned clause 10.4.1(5)(c):
the extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday –
The second matter concerned clause 10.4.1(5)(k):
any known wishes expressed by the child –
In that regard the plaintiff relied on the fact that the mother of the child may be said to have express wishes on behalf of the child and to have passed on two expressions of those wishes in a letter in which, according to the mother, the son kept asking her after visits to his father in prison “When can my dad stay with me?” and “Why don’t I have my dad?”
It is convenient to set out the arguments of a particular kind on these first two matters together. As to the first matter, the plaintiff submitted that the plaintiff had a son under 18 years of age, that the delegate had not referred to clause 10.4.1(5)(c), that the delegate had not identified it as a matter to be considered, that the delegate had not made findings as to the extent to which the plaintiff was likely to play a full parental role up to his child’s 18th birthday and that the delegate had failed to take this clause into account.
As to the second matter, the plaintiff submitted that although the mother had written a letter on behalf of the child describing the child’s wishes, the delegate had not referred to that clause or made any finding as to whether any wish had been expressed by or on behalf of the child or identified the wish. The plaintiff also complained that the delegate had failed to take the clause into account.
The plaintiff accepted that the delegate had found that the best interests of the child pointed against the deportation of his father, but the plaintiff submitted that the decision‑maker, the delegate, had to weigh the interests of the child against the consequences which flowed from the conviction in favour of deportation. The plaintiff submitted that had the delegate taken the interests of the child into account more specifically, that might have increased the weight of the relevant consideration and might have led to the decision arriving at a different conclusion.
The defendant pointed to the following features of the delegate’s statement of reasons. At paragraph 16 the delegate recorded the fact that he had given “primary consideration to the best interests” of the child. At paragraph 17 he expressly took into account the “close relationship” between father and child and he noted that they had been remaining in contact by visits and telephone calls. In paragraph 18 the delegate referred to the wish of the wife that the plaintiff remain in Australia in order to maintain a close relationship with the son. In paragraph 19 the delegate said that he noted the concerns expressed by the mother that removing the plaintiff from Australia would have an adverse effect on the son’s physical and mental wellbeing.
It is no doubt factors of that kind which led the delegate in paragraph 25 to say:
I accept that the best interests of [the son] would be for his father to remain in Australia, and this is a strong countervailing factor.
By that the delegate meant that it was a strong factor countervailing and operating against those factors working in favour of deportation which were associated with the father’s conviction.
The defendant submitted that the delegate’s finding that the plaintiff had a close relationship with the son and his consideration of the effect on the son if the visa were to be cancelled strongly suggests that the two matters presently under consideration were taken into account. Those two matters, namely the extent to which the father was likely to play a full parental role up to the child’s 18th birthday and the wishes expressed by the child were discussed in the mother’s letter to the Department of Immigration and Citizenship (“the Department”). A copy of that letter was attached to a so‑called issues paper, the fuller title of which is “Issues for Consideration of Possible Visa Cancellation under Section 501(2) of the Act” which was before the delegate.
The defendant submitted that it was not of any consequence that the delegate did not expressly refer to the child’s wishes, that is to say those wishes which could be inferred from the two queries which were set out in that letter, and it did not matter that the delegate had failed to isolate each particular factor in clause 10.4.1(5). That is because he accepted the conclusion that it would be in the best interests of the son to remain with the plaintiff. The defendant submitted that the delegate was not under any obligation to refer to or comment on every item of evidence or contention made by the plaintiff.
In relation to a specific submission by the plaintiff that the issues paper had not discussed the son’s wishes and therefore even if it were to be treated as incorporated into the delegate’s reasons for decision, it did not reveal that the delegate had taken the son’s wishes into account, the defendant submitted that the plaintiff’s complaint was about the form of the reasons and not of any matter of substance.
The defendant drew attention to a statement appearing above the delegate’s signature appearing at the end of the issues paper. The delegate said that he had considered all relevant matters and all evidence before me provided by and on behalf of or in relation to the plaintiff in connection with the proposed cancellation of the visa. In the reasons for decision themselves, paragraph 24 the delegate said that he had considered all relevant matters and all evidence available to him, including evidence provided by or on behalf of the plaintiff.
The defendant also pointed out that the letter from the mother passing on the son’s wishes had been substantially summarised in paragraphs 16 to 19 of the reasons for decision. The defendant submitted that it was therefore plainly to be inferred that the delegate had read the mother’s letter and plainly to be inferred that that letter in its totality had been taken into account and that close regard had been paid to its key parts.
The defendant submitted that if the defendant had failed to do anything, he had failed simply to set out item by item the whole of the criteria in clause 10.4.1(5). The defendant submitted that that was a purely formal mechanical complaint. It did not support any inference that, as a matter of substance, the delegate had failed to have regard to the material. The defendant supported that submission by drawing to attention paragraph 60 of the issues paper which set out one by one the various factors in paragraph 10.4.1(5), including:
the extent to which the person is likely to play a full parental role in relation to the child –
and –
any known wishes expressed by the child –
The defendant also pointed out that in paragraph 65 of that issues paper the principal parts of the mother’s letter had been summarised. The defendant submitted that while in some cases it might be necessary to deal with these matters by treating the detailed, factual reasoning under each separate head, it was not necessary here because the wishes of the son and the wishes of the mother pointed in the same direction. They, if accepted and given appropriate weight, led to the same conclusion and it was therefore not necessary to deal in complete detail with the elements of the mother’s letter. Despite that, the plaintiff criticised the issues paper paragraph 65 because it had failed to pass on the son’s wishes. That was where the battle lines were drawn in relation to the first two matters of which the plaintiff complained.
The third matter concerned a different part of the direction – clause 11(3)(f), the level of education of the plaintiff. The fourth matter concerned clause 11(3)(f)(ii) which created an obligation to consider in the plaintiff’s favour:
any efforts made by [the plaintiff] to improve his education and, therefore, increase his capacity to positively contribute [sic] to the Australian community through employment and other activities –
The plaintiff submitted that the delegate did not consider the level of education of the plaintiff. He submitted that the delegate did not consider the efforts made by the plaintiff to improve his education and increase his capacity positively to contribute to the Australian community. He had failed to take account of the fact that the plaintiff had completed courses in prison leading to a welding qualification, of the fact that the plaintiff had a diploma in accounting and of the fact that the plaintiff had achieved progress towards completion of a commerce degree at the University of Southern Queensland in which he had received awards of merit.
In answer to those submissions, the defendant pointed to the fact that in paragraph 10 of the reasons for decision the delegate had stated that in prison the plaintiff demonstrated a willingness to undertake numerous rehabilitation, educational and vocational programs. At paragraph 11 the delegate had expressly stated that he had considered the positive comments of parole officers in relation to the plaintiff’s rehabilitation efforts and future prospects. The defendant also pointed out that in paragraph 25 the delegate had concluded that the plaintiff’s behaviour in prison “has been positive and that he has taken steps toward rehabilitation”.
What was it in the parole officer’s positive comments that the delegate was referring to? That emerges from the issues paper which, in paragraph 78, said that the plaintiff had been undertaking tertiary studies and referred to some attachments. In paragraph 44 there was a quotation of a prison report of 9 June 2011 which stated:
By way of employment [the plaintiff] has completed the Certificate II in engineering which focuses on the attainment of skills in welding.
[The plaintiff] is currently enrolled, and has completed three years of a distance degree of education relating to a “Bachelor of Commerce”. Notations from staff confirm that the inmate is committed to the program, and appears to possess the capabilities and drive to complete the qualification.”
In paragraph 48 the issues paper referred to a letter from the plaintiff stating that he had completed numerous rehabilitation, educational and vocational courses and an attachment to the issues paper was referred to. Among those attachments is to be found a Probation and Parole Service immigration report which records the fact that the plaintiff had completed the Certificate II in Engineering focusing on the attainment of skills in welding. The same report also recorded the fact that the plaintiff was enrolled in and had completed three years of the Bachelor of Commerce degree and recorded the statements from staff about the plaintiff’s level of commitment to the program and his capabilities and drive in relation to completing it.
A further report of the Probation and Parole Service set out the fact that the plaintiff already had a Diploma of Accounting and was currently undertaking the degree course in the Bachelor of Commerce and recorded that he had had obtained instruction in welding which he hoped to utilise to get employment upon release.
On the strength of those references, the defendant submitted that the delegate had taken into account the level of the plaintiff’s educational attainments and, in substance, had taken into account the question of the efforts he had made to improve his education and, therefore, to increase his capacity positively to contribute to the Australian community.
It is convenient to deal, I think, with one general submission of the plaintiff. The plaintiff submitted that merely to say that the delegate had read the evidence and had read the issues paper was not to comply with the direction. Rather, it was necessary for the delegate specifically to identify those aspects of the direction which were relevant and then deal with them separately and then weigh the results at the end of that process.
It may be conceded that to some extent the delegate did not, as a matter of form, do that. It is, though, fairly plain that a person serving a nine‑year sentence in prison, who had indeed been in gaol for a very large part of his son’s life, was not likely to be able to play a full parental role up to the son’s 18th birthday.
While it is true that there is no separate identification of the known wishes expressed by the child, I would agree with the defendant’s submission that since the wishes expressed by the child concurred with the wishes expressed by the mother, and since the expression of the child’s wishes was made in a somewhat striking way in a letter which it is plain the delegate read closely because he summarised parts of it, it is not a fatal flaw in the delegate’s decision that there was no separation of analysis in the manner in which the plaintiff urged.
The plaintiff’s arguments were developed and advanced with considerable skill, but I must say that they concentrate more on possible formal deficiencies in the detail of expression of the reasoning, not in the substance of the reasoning. The ultimate question is whether the four matters that the plaintiff has drawn to attention were considered. In my judgment, taking the reasons given and the issues paper and the statements, which there is no reason to doubt the truth of, that the delegate took into account the issues paper and the material attached to it, it has not been established that those four matters were not brought into consideration.
One specific point, perhaps, should be made in relation to the fourth of the matters, namely whether consideration was given to whether his educational efforts were increasing his capacity positively to contribute to the Australian community. I put on one side the complaints about not taking into account the level of education of the plaintiff because there was a mass of evidence about that and no reason to doubt that it was taken into account. There was also a mass of evidence about the efforts made by the plaintiff to improve his education and no reason to doubt that that was taken into account.
The plaintiff is perhaps on stronger ground in stressing the question of whether there was attention to an increase in the plaintiff’s capacity positively to contribute to the Australian community. The two fields of activity in which the plaintiff engaged, namely the acquisition of a skill in the form of welding, and the acquisition of what might loosely be described as business skills fitting in with his earlier accounting studies through the Bachelor of Commerce degree can, I think, be treated as matters of which it can be said that it goes without saying that anyone who attains those skills will be positively contributing to the Australian community. Both welding and business skills are matters of obvious value to the community. It therefore seems to me that the failure, specifically, to isolate that element of clause 11(3)(f)(ii) is not a fatal flaw in the delegate’s decision.
I order that the plaintiff’s application for an order to show cause be dismissed. Do you apply for costs, Mr Williams?
MR WILLIAMS: We do, your Honour.
MR JOHNSON: I cannot resist that, your Honour.
HIS HONOUR: I couple that with an order that the plaintiff pay the defendant’s costs. Thank you, gentlemen.
AT 11.08 AM THE MATTER WAS CONCLUDED
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