CQU15 v Minister for Immigration
[2016] FCCA 1946
•29 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQU15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1946 |
| Catchwords: MIGRATION – Application to review decision of the former Migration Review Tribunal – whether the Tribunal failed to comply with a Ministerial Direction and thus exceeded its jurisdiction – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.116(1)(g), 116(3) Migration Regulations 1994 (Cth), regs.2.43(1)(p), 2.43(1)(q) |
| Cases cited: ACH15 v Minister for Border Protection [2015] FCCA 1250 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 322 Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009] FCAFC 140 Minister for Border Protection v SZUSU (2016) 237 FCR 305; [2016] FCAFC 50 Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568 |
| Applicant: | CQU15 (BY HIS LITIGATION GUARDIAN) |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 145 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 9 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jackson |
| Solicitors for the Applicant: | HIV/AIDS Legal Centre |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 145 of 2015
| CQU15 (by his litigation guardian) |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) of 16 December 2014 affirming a decision of a delegate of the First Respondent to cancel the Applicant’s Subclass 050 (Bridging (General)) visa.
The Applicant is a South African national who was born in 1981. He first came to Australia with his family in 1993. The family returned to South Africa in 1997. The Applicant returned to Australia with his mother and siblings in 2001. He has not departed since.
In 2002 the Applicant was diagnosed as HIV positive. In or about 2006 he was diagnosed as suffering from schizophrenia. On 2 November 2015 I made orders by consent that the New South Wales Public Guardian be appointed as litigation guardian for the Applicant in these proceedings.
While the Applicant’s mother and siblings obtained permanent residence in Australia in 2005, the Applicant was not included in that application, apparently because of his HIV status.
In either 2007 (as his wife indicated in a statutory declaration of 4 July 2013) or 2008 (as the Applicant claimed in his statutory declaration of 20 June 2014), he married. Given the allocation of a pseudonym to the Applicant in these proceedings, it is convenient to refer to his wife as Ms M. Ms M has two children, who were aged about three and four years of age at the time of the Tribunal decision. According to the Tribunal, while the Applicant is the biological father of the older child only, he considers both children to be his children.
Ms M lived with the Applicant in his mother’s home until about 2009 when she moved out. Subsequently, the Applicant stayed with his mother, but visited Ms M. He spent more time with Ms M after his mother went to South Africa in 2012. His mother died in 2013. After a period of homelessness, the Applicant lived with Ms M and the children from March to November 2013.
In 2011 the Applicant was charged with (and on 1 November 2013 convicted of) offences under ss.112(2) and 61N(2) of the Crimes Act 1900 (NSW) which occurred in 2005. These consisted of aggravated break and enter and committing a serious indictable offence, and committing an act of indecency with a person 16 years or over (an 85 year old woman). He was sentenced to 11 months in prison.
The Applicant was the holder of a Subclass 050 Bridging visa granted on 7 November 2013 to cease on 20 December 2013. That visa had been granted in circumstances where he sought Ministerial intervention, apparently in relation to a decision about a previous visa application.
On 20 December 2013 the Applicant’s Bridging visa was cancelled by a delegate of the First Respondent on the basis that he had been convicted of offences against the laws of New South Wales (see s.116(1)(g) of the Migration Act 1958 (Cth) (the Act)). The Tribunal affirmed that decision on 3 January 2014. The Applicant sought judicial review. This court made orders by consent remitting the matter for reconsideration on the basis the decision was affected by jurisdictional error in that the Tribunal as originally constituted had failed to have regard to the best interests of the Applicant’s children as a primary consideration.
After the matter was remitted the Applicant appeared before the Tribunal (as reconstituted) on 24 June 2014 to give evidence and present arguments.
On 12 September 2014 Ministerial Direction No. 63, “Bridging E visas – Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q)” (which was issued by the then Minister under s.499 of the Act) came into effect. The Tribunal held a further hearing on 5 December 2014.
The Tribunal also received written and oral evidence from the Applicant’s wife and submissions and evidence from the Applicant’s migration agent. Transcripts of the Tribunal hearings are in evidence as annexures to the affidavit of Alexandra Rachael Stratigos sworn on 7 May 2015. The Applicant relied on the transcripts of the hearings before the Tribunal as reconstituted. The Tribunal also had before it medical reports in relation to the Applicant.
The Tribunal Decision
In its reasons for decision the Tribunal (as reconstituted) stated that the issue before it was whether the ground for cancellation of the Applicant’s Bridging visa was made out and, if so, whether the visa should be cancelled.
The Tribunal found that as the Applicant had been convicted of offences against a law of a State, it was satisfied that a prescribed ground for cancelling his visa existed within reg.2.43(1)(p)(i) of the Migration Regulations (which provides, inter alia, that the Minister is satisfied that the holder of a Subclass 050 Bridging visa has been charged with or convicted of an offence against a law of the Commonwealth, a State, a Territory or another country) and hence that a ground for cancellation within s.116(1)(g) of the Act existed. The Tribunal recognised that this ground did not require mandatory cancellation under s.116(3) of the Act and that it must consider whether the power to cancel the visa should be exercised.
In considering whether to affirm the decision to cancel the Applicant’s Bridging visa the Tribunal acknowledged that it must have regard to Direction No. 63 (the Direction). The Tribunal summarised the effect of the Direction, in particular the fact that it required it to take into account specified primary and secondary considerations where relevant. The Tribunal recorded that under the Direction the primary considerations were:
·the Government’s view that the prescribed grounds for cancellation at reg.2.43(1)(p) and (q) of the Act should be applied rigorously; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The Tribunal also listed the secondary considerations identified in the Direction (the impact of a decision to cancel the visa on the family unit; the degree of hardship that may be experienced by the visa holder if the visa was cancelled; the circumstances in which the ground for cancellation arose; the possible consequences of cancellation; and any other matter considered relevant).
The Tribunal acknowledged that the Direction also stated that primary considerations should:
… generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.
In addressing the primary considerations, the Tribunal referred first to the fact that it had found that there was a prescribed ground within reg.2.43(1)(p) for cancellation of the Bridging visa and to the fact that a primary consideration under Direction No. 63 was the Government’s view that this prescribed ground should be applied rigorously.
The Tribunal acknowledged the submissions by the Applicant’s representative that this primary consideration should be read in conjunction with Part 4 of the Direction (which set out objectives, general guidance and principles); that a relevant factor was that the Applicant had not committed the offences whilst holding his Bridging visa; that the Bridging visa had been obtained on the basis of his request for Ministerial intervention; and that the Applicant’s circumstances at the time of the Tribunal review differed significantly from his circumstances in 2005 when he committed the offences.
However, the Tribunal also had regard to the fact that the Direction stated that in weighing the Government’s view that a prescribed ground for cancellation should be applied “rigorously”, decision-makers “should have regard to the principle that the Australian Government has a low tolerance for criminal behaviour, of any nature, by non-citizens who are in the Australian community on a temporary basis, and who do not hold a substantive visa”. The Tribunal found that the Applicant was in the community on a temporary basis and did not hold, and had not held, a substantive visa. It stated that it had “weighed” the existence of a prescribed ground and the Government’s view that such a ground should be applied rigorously.
Under the heading “Children” (the part of the decision primarily in issue in this case), the Tribunal stated:
22. As stated a primary consideration is the best interests of any children under the age of 18 in Australia who would be affected by the cancellation. The Direction states that in considering the best interests of the child, decision-makers should have regard to the fact that the cancellation of a Bridging E Visa under the prescribed grounds in regulation 2.43(1)(p) or (q) does not necessarily represent final resolution of a person’s immigration status in Australia.
23. The applicant has submitted that he has two children under the age of 18 in Australia who would be affected by the cancellation of his visa. These children are from his relationship with [Ms M], whom he married in about 2008.
24. According to the applicant’s representative, the relationship between [the Applicant] and [Ms M] has never been akin to a marriage-like relationship. The applicant describes their relationship to be more like a friendship than that of a husband and wife.
25. According to the applicant, the children are nearly 3 and 4 years of age. The applicant is not the biological father of the youngest child but considers them both to be his children.
26. The applicant’s evidence is that he and [Ms M] lived together at his mother’s house but [Ms M] moved out in 2009 and he would often go to her house. From 2012 he lived with her more, and they lived together from March 2013 when his mother died. This means the applicant had only lived with [Ms M] and the children from March to November 2013 and this is relevant in considering how the children will be affected by the cancellation of the visa.
27. When asked how the children would be affected by the cancellation of his visa, the applicant told the tribunal that he wants to watch them grow up. He loves them and doesn’t want to be away from them. He does not want them to cry for him in the night as he did for his father who died when he was young. He wants to spend quality time with them when he is released from prison while the Minister is considering his request, particularly if he is required to return to South Africa. He also would like to support his family financially.
28. [Ms M] has given evidence that she found it difficult to take the children to visit the applicant at Villawood Detention Centre on the one occasion she visited him there with the children. The applicant’s representative has submitted that it is unlikely [Ms M] would take the children to see the applicant as regularly as is necessary if he were in detention. She submitted that cancelling the visa would separate the children from the applicant for a significant period, perhaps for ever if the applicant is not granted a visa.
29. The tribunal accepts the applicant’s evidence that he has a relationship with the children and that he has looked after them at times. The tribunal accepts that he has played with them and that he has been involved in taking them to and from childcare. The tribunal also accepts that the applicant has a deep attachment to the children. He describes them as being his best friends.
30. However, at present, it is the fact of the applicant being in prison that separates him from the children. They continue to reside with their primary care giver, their mother, and according to the applicant, he has not had contact with them since January 2014. He has spoken to [Ms M] from prison but he hasn’t spoken to the children, although he can hear them in the background when he calls. He was speaking with [Ms M] every week. But until the day before the hearing, he had not spoken to her for 2 or 3 months because her phone had been broken, and he had not been able to contact her on any other number. He told the tribunal that [Ms M] has not sent any photos of the children.
31. [Ms M] told the tribunal that she feels the children are too young to be told where the applicant is. One of her sons did ask about the applicant and she told him that the applicant was at work. She confirmed that her phone was broken and she had not spoken to the applicant for 2 or 3 months until the day before the hearing.
32. The tribunal considers the fact that the applicant has had no contact with the children since January this year to be relevant in considering how the children will be affected by the cancellation. This is not due to the cancellation of the visa. It is due to the applicant’s imprisonment and [Ms M’s] decision not to maintain a relationship between the children and the applicant.
33. The tribunal has considered the best interests of the children as a primary consideration. The tribunal accepts that the applicant would like to re-establish a relationship with the children once he was released from prison. However, if his visa is cancelled and he is returned to the detention centre, this may be difficult, unless [Ms M] allows the applicant to speak to the children by phone and takes them to visit him in detention. If she doesn’t, the current situation would continue. As indicated, this has resulted from the applicant being imprisoned for the offences with which he has been convicted, and not as a result of the cancellation of his visa. This situation would continue until the Minister decides whether or not to intervene, although it is unknown how long this will take. It would be at this point that the applicant’s immigration status in Australia would be resolved. This is a relevant consideration as the cancellation of this visa does not represent the final resolution of the applicant’s immigration status. The tribunal is satisfied that the cancellation of the Bridging visa would not result in the applicant departing Australia. This would only result from the Applicant being unsuccessful in his request for Ministerial intervention.
34. While waiting for the applicant’s immigration status to be resolved, the children will continue to live with and be care (sic) for by their mother, which is in their best interests.
The Tribunal went on to consider “secondary considerations”. Under the heading “Impact on the family unit”, it accepted that the Applicant had had a difficult history, having come to Australia at the age of 12 in 1993 and having lived here thereafter (apart from a return to South Africa for four years during which time his father died), and that he had not been included in the family’s successful 2005 permanent residency application due to his HIV positive diagnosis.
The Tribunal also had regard to the fact that the Applicant’s mother had died in South Africa in January 2013 and that, prior to that time, he and his siblings had been living, for the most part, in a house their mother rented in Sydney. It accepted that Ms M had lived with the Applicant and his family until about 2009, that the Applicant stayed with Ms M “more” in 2012 and that he lived with her from about March 2013 after a period of homelessness. The Tribunal continued:
38. The cancellation of the applicant’s visa will lead him (sic) being detained on his release from prison. This would result in a continuation of the current situation with the applicant being separated from his family, unless [Ms M] allows the applicant to speak to the children by phone and takes them to visit him in detention.
The Tribunal addressed the submission that cancellation of the Applicant’s Bridging visa could lead to the Applicant being permanently separated from his family on the basis that the family would not have the financial means to visit him in South Africa because he was likely to die from AIDS-related illness within a short time after he returned to South Africa. However the Tribunal found that it would only be when the Minister made his decision (in relation to the request for Ministerial intervention) that the Applicant’s immigration status would be resolved. It was of the view that the cancellation of the Applicant’s Bridging visa would not impede the Minister in deciding whether or not to intervene in this case. It found that the cancellation of the Bridging visa would not result in the Applicant being returned to South Africa.
The Tribunal considered the “degree of hardship” the Applicant may experience if his Bridging visa was cancelled (and he was consequentially detained) and the submissions in that respect. It accepted that the Applicant would prefer to have his medical conditions treated in the community, but was satisfied that he would receive an appropriate level of medical treatment for his conditions while in detention awaiting resolution of his immigration status.
The Tribunal also considered “the circumstances in which the ground for cancellation arose”, including the submission of the Applicant’s representative that the Applicant’s schizophrenia had not been diagnosed until after he committed the offences. However it had regard to the fact that the Applicant had been convicted of serious offences; that he had told the previous Tribunal that he was innocent; that he did not commit the crimes of which he was convicted; that one of his brothers was the offender, but he took the blame through DNA evidence; and that his lawyer had told him not to raise this as a defence at trial as he would not have been believed. The Tribunal found that the Applicant’s evidence to the previous Tribunal showed no remorse, but it acknowledged that he had told it that he was sorry for the crime he committed and would like to ask for forgiveness from the victim.
The Tribunal had regard to the fact that the offences were committed in 2005, although charges were not brought until 2011 and that the Applicant claimed that he had no convictions for any other offences and had not had any subsequent involvement with the police since the events of 2005. However it found that it was the fact of being charged or convicted of an offence that provided the prescribed ground for cancellation and that while the Department could have considered cancelling the visa sooner, the legislation provided no time limit.
The Tribunal considered “the possible consequences of cancellation”. It rejected the submission that cancellation of the Bridging visa would result in the Applicant being returned to South Africa in breach of Australia’s non-refoulement obligations. The Tribunal found that cancelling the Bridging visa would not impede the Minister in making a decision as to whether to intervene or the resolution of the Applicant’s migration status and reiterated that it was at that point that the Applicant’s immigration status would be resolved.
Under the heading “Other matters”, the Tribunal addressed the submission that it was relevant that the Applicant was a vulnerable person who had lived most of his life in Australia, who had children in Australia and who had no tangible connections to South Africa. The Tribunal stated that it had considered the Applicant’s vulnerability and the best interests of his children in Australia, but did not accept that his connection to Australia or South Africa was relevant.
The Tribunal accepted that after release from prison the Applicant wished to try to help his sister to come to Australia and wanted to study to become a counsellor to help others and to support his family.
It also considered it relevant that the Applicant’s Bridging visa would have ceased on the day it was cancelled, but for the cancellation. It observed that the Applicant would have needed to apply for a further Bridging visa had it not been cancelled. It found that given the Applicant’s history, a delegate, or the Tribunal on review, may not have found that the Applicant met the requirements for the grant of a further Bridging visa. However the Tribunal also took into account the fact that if his Bridging visa remained cancelled, the Applicant would not be able to make a further Bridging visa application.
The Tribunal noted the submission that the Applicant was not a threat to the community, that he had “served his punishment” for his offence and that he wanted to move on with his life and be a good father. It had regard to the fact that there was no evidence of other non-compliance and that the Applicant had been lawful at all times during his stay in Australia, but also took into account the fact he had been convicted of serious crimes.
Under the heading “Conclusion”, the Tribunal found that there was “no doubt” the Applicant would suffer “a degree of hardship” with the cancellation of his Bridging visa, given his desire to be with his family and to be in the community. It acknowledged his expressed desire to study, so he could work and contribute to his family and society.
The Tribunal continued:
59. The applicant would like to re-establish a relationship with his children and their interests are a primary consideration. He may not be able to do this while in detention unless [Ms M] is prepared to allow the applicant to talk to the children by phone and take them to visit him. This would continue the current situation which has resulted from the applicant being imprisoned. This would continue until his immigration status is resolved and the children’s situation would remain as it has been since January 2014.
The Tribunal accepted that the Applicant had serious health problems, but found that the medication and medical care he required would be available to him in the detention centre. It reiterated that it did not accept that the cancellation of the Bridging visa would lead to a breach of Australia’s non-refoulement obligations.
The Tribunal also reiterated that while the Applicant appeared not to have offended since 2005 and had abided by immigration conditions, the charges of which he had been convicted were very serious and he had only recently shown remorse, whereas previously he had not only shown no remorse, but had also sought to shift the blame to another person.
The Tribunal concluded that it had “had regard to the primary considerations and weighed them against the secondary considerations” and having considered “all of the circumstances, particularly the best interests of the children, the nature of the convictions, and with regard to Direction No. 63”, its view was that the preferable decision was that the Applicant’s Bridging visa should remain cancelled. It affirmed the decision to cancel the Applicant’s Bridging visa.
These Proceedings
The Applicant sought review by Application filed in this Court on 20 January 2015. He now relies on a Further Amended Application filed on 10 December 2015 (referred to for convenience as “the application”). There is one ground in the application. It is as follows:
(1) The Second Respondent failed to comply with Ministerial Direction 63 in assessing the best interests of the child, and thus exceeded its jurisdiction.
Particulars
1.1 Ministerial Direction 63 required the Second Respondent to consider the best interests of the child as a primary consideration when considering whether or not to affirm the decision to cancel the visa, which affects the grant of a further bridging visa.
1.2 The Second Respondent applied the wrong test when considering the best interests of the children by asking whether it was in the best interests of the children to continue living with their mother, rather than considering whether the continued cancellation of the bridging visa was in the children’s best interests.
1.3 The Second Respondent failed to assess whether the possibility of an opportunity to engage with their father again was in their best interests. Without answering that question, the Tribunal could not then balance that consideration against other considerations.
The Applicant conceded that the Tribunal’s power to cancel his Bridging visa was enlivened by s.116(1)(g) of the Act on the basis of the prescribed ground that he had been convicted of offences against the law of a State (see reg.2.43(1)(p)(i)). However it was submitted that such power had to be exercised by the Tribunal with reference to any Direction made with respect to its exercise under s.499 of the Act as compliance with such Direction was mandatory under s.499(2A) (see Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009] FCAFC 140 at [47]).
It was pointed out that the relevant direction, Direction No. 63, included as one of the primary considerations “the best interests of the children under the age of 18 in Australia who would be affected by the cancellation”, and that according to paragraph 5.1(3) of the Direction the primary considerations were generally to be given more weight than secondary considerations.
It was submitted that the Federal Court had considered how the task of considering the best interests of children was to be undertaken in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568 in which the Full Court had stated at [32] that the Tribunal:
…was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effective of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
Counsel for the Applicant referred to particular aspects of the evidence given at the Tribunal hearings. It was pointed out that the Tribunal had acknowledged that when asked how the children would be affected by the cancellation of his Bridging visa, the Applicant had told the Tribunal he wanted to watch them grow up, loved them and did not want to be away from them or for them to cry at night for him. He wanted to spend “quality time” with them when released from prison while the Minister was considering the request for intervention, particularly if he was required to return to South Africa.
It was also said to be relevant that Ms M had given evidence at the 5 December 2014 hearing that the children were affected by the absence of their “Dad” and about the consequences of his ongoing absence, in attesting that the children were going “all right”, but that she sometimes thought the younger child, in particular, was impacted by the situation and that he “would ask for his Dad all the time” (transcript 5 December 2014 p.20 line 41 on) and would call out for his dad and want to see him when he cried (p.21 lines 3-4). She explained that she had not told the children that the Applicant was in prison, but had said that he was at work (p.21 lines 10-11).
The Applicant also pointed out that (after explaining difficulties she had in the past and would have in visiting the Applicant in detention) Ms M had stated “and for them being apart it would be great if, you know, when he’s in the community he will have time to be with the children” (transcript 5 December 2014 p.21 lines 35-36).
Reliance was also placed on the evidence of Ms M at the Tribunal hearing of 24 June 2014 (after the Applicant’s representative suggested she talk about the difficulty visiting the Applicant when he was previously in detention before he went to prison). Ms M’s evidence was as follows (transcript 24 June 2014 p.23 lines 16-35):
[MS M]: It’s really difficult for me, it really is because with the responsibility in the home and also like having my children to go through that, I just feel it’s wrong and the one time we went and visited when we came they were crying. I just didn’t feel that mentally it’s just not right. Didn’t feel right for them to be there and say – they have to say goodbye and cry, they want to be – they don’t want to go away from the detention centre but at the same time they don’t understand so I think the emotional impact mentally for my children and for myself as well. Yes, just didn’t feel right for me that they should be put in that short of circumstances.
WITNESS REPRESENTATIVE: And perhaps if there were any other difficulties around like financial, or the logistic difficulties getting to the detention centre?
[MS M]: Oh definitely because I live in Downside(?) and it would impact on my budget, because I’m on a tight budget with my children, you know at the moment and just that experience and to find the extra cash to – whereby you know I will have to make the effort to go from Downside to Villawood or wherever he’s going to be (indistinct) or extremely difficult financially for me and my children.
It was submitted that Ms M’s evidence was that she had felt it was emotionally damaging for the children to visit the Applicant in the detention centre and then to have to say goodbye.
Counsel for the Applicant also submitted that the evidence was that the Applicant had a strong connection to Australia, but little connection to South Africa.
The Applicant submitted that the Tribunal had accepted the Applicant had a relationship with and deep attachment to the children. It was acknowledged that the Tribunal had stated that it had considered the best interests of the children as a primary consideration and had accepted that the Applicant would like to re-establish a relationship with them on release from prison, but had found that this may be difficult if his visa was cancelled and he was returned to the detention centre, unless Ms M allowed him to speak to them by phone and took them to visit him.
The Applicant contended that it was critical that the best interests of the children were clearly identified. It was contended that the Tribunal had to not only identify the requirement to have regard to the best interests of the children in accordance with the Direction (as it had done), but that it also had to address what the best interests of the children were and how they would be affected by cancellation of the Bridging visa. The Applicant submitted that the Tribunal had applied the wrong test, in that in para.34 of its reasons it had identified that it would be in the best interests of the children to stay with their mother. It was submitted that the question for the Tribunal was not whether it was in the children’s best interests to live with and be cared for by their mother (which it was suggested would occur regardless of whether the Applicant’s Bridging visa was cancelled), and that the Tribunal had failed to consider how the decision which it had to make could affect the children and what the best interests of the children dictated with respect to the decision that it was making in the sense considered in Wan at [29].
Counsel for the Applicant clarified that it was submitted that the best interests of the children had not actually been identified and dealt with by the Tribunal. It was contended that while various factors the Tribunal had referred to may be relevant to that question, the Tribunal had not addressed what the best interests of the children would dictate, but instead had answered another question in relation to the interests of the children in living with their mother.
The Applicant also pointed out that the Tribunal’s decision to uphold the cancellation of his Bridging visa would remove his “right” to apply for a further Bridging visa and thus remove the possibility that he would be released into the community, instead of being detained after the expiration of his sentence pending a final resolution of his immigration status.
The question for the Tribunal was said to be whether it was in the best interests of the children to close off the possibility that the Applicant could be released into the community such that the children could have the benefit of contact and an ongoing relationship with him. It was contended that the Tribunal had failed to assess whether the possibility of an opportunity to engage with their father again was in the children’s best interests.
It was submitted that the Tribunal should have considered what options a decision to affirm the cancellation would have closed off and what effect, if any, that would have on the relationship, or potential relationship, between the Applicant and the children and, ultimately, whether the effect would be positive or negative for the children and what was in their best interests with respect to the decision that the Tribunal was making.
It was acknowledged that there was a discussion of this issue in the part of the Tribunal decision headed “Impact on the family unit” as well as in the part of the decision relating to the primary considerations identified in Direction No. 63 and that the Tribunal had observed that cancellation of the Applicant’s Bridging visa would lead to him being detained on release from prison which would result in the continuation of the current situation of separation from the family unless Ms M allowed him to speak to his children by phone and took them to visit him in detention. However the Applicant contended that this did not suffice, as it was not taken further and was dealt with as a secondary consideration, rather than under the rubric of the best interests of the children, and because there was no specific reference to the effect that such a separation would have upon the children.
The Applicant also acknowledged that in its conclusion the Tribunal had reiterated its observations or findings that the children’s interests were a primary consideration, its acceptance that the Applicant wished to re-establish a relationship with the children and the fact that he may not be able to do this if in detention unless Ms M was prepared to allow him to talk to the children by phone and took them to visit him. The Tribunal recognised that this would continue the current situation as it had been since January 2014 (which it found had resulted from the Applicant being imprisoned) until his immigration status was resolved. However, the Applicant submitted that no conclusion appeared to follow from this part of the decision and that no link was made between these observations and the best interests of the children.
The Applicant submitted that the Tribunal’s failure to comply with the Direction could be characterised as asking the wrong question in a manner affecting the exercise of power, failing to take into account a relevant consideration or failing to accord procedural fairness because the Tribunal had failed to warn the Applicant that it did not intend to comply with the Direction.
The First Respondent submitted that the ground relied on by the Applicant appeared to be based on a misreading of the Tribunal’s decision. It was conceded that the Tribunal’s reasons could have been more felicitously expressed (in particular in para.34) but submitted that it was nevertheless clear that the Tribunal had found that the Bridging visa cancellation decision had no (or no substantial) impact on the children’s interests. It was said to have done so principally because the decision related to a Bridging visa only and did not affect the Applicant’s ability to remain in Australia in the medium to long term and also because of several other factors, including the young age of the children, the relatively limited time the Applicant and the children had actually resided together, and the fact that at the time of the Tribunal decision the Applicant had had no contact with the children for some 11 months because he was in prison and because of his wife’s decision not to maintain the relationship between the Applicant and the children (not because he did not hold a Bridging visa). In addition, the Tribunal was said to have had regard not only to the fact that the Applicant had no present right to remain in Australia but also the fact that whether he was or was not removed from Australia was not dependent on whether his Bridging visa was cancelled, but on whether he was able to secure a permanent or substantive visa. It was pointed out that the Tribunal had proceeded on the basis that the Applicant’s immigration status would be resolved once the Minister decided whether or not to intervene in his favour and that it would be at that point that, if the decision was adverse, the Applicant would have to leave Australia.
The First Respondent submitted that in these circumstances it was apparent that the Tribunal had considered that affirming the cancellation decision would simply maintain the status quo while a decision on the Applicant’s immigration status was made. In other words, it was submitted that in circumstances where the children were of a very young age and had had no contact with the Applicant for a significant period of time, maintaining the status quo in the short term was considered by the Tribunal to be consistent with the children’s best interests.
Insofar as in oral submissions counsel for the Applicant appeared to have accepted that it would have been acceptable for the Tribunal to find that the cancellation decision would make no difference as far as the best interests of the children were concerned (provided it considered this issue), the First Respondent submitted that if one had regard to the part of the Tribunal reasons appearing under the heading “Children” in the context of the whole of the Tribunal reasons for decision, it was apparent that the Tribunal had not misunderstood the nature of the relevant primary consideration and had focused on the question of what was in the best interests of the children but, for a number of reasons, most significantly that the cancellation would not affect the medium or long term relationship between the Applicant and the children, had formed the view that the decision would not have a meaningful impact on the best interests of the children.
The First Respondent also submitted that, seen in context, the Tribunal’s closing remark in para.34 in this part of its reasons, to the effect that while waiting for the Applicant’s immigration status to be resolved the children would continue to live with and be cared for by their mother which was in their best interests, was simply a recognition that the decision to cancel the Bridging visa was not inconsistent with what was otherwise in the best interests of the children.
It was said to be quite clear from the Tribunal decision as a whole that the Tribunal was aware of the Direction, the requirements of the Direction and that the best interests of any child under the age of 18 had to be treated as a primary consideration. While the Tribunal had not specifically stated what was in the best interests of the children, it was submitted that reading the Tribunal decision fairly and as a whole, having regard to the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, it was quite clear that the Tribunal was aware of what it had to focus on and that it did consider relevant matters, but formed the view that in this particular case, while the issue of the interests of the children was relevant and was taken into account as a primary consideration and weighed against secondary considerations, the preferable decision was that the Applicant’s Bridging visa remain cancelled. This approach was said to be consistent with Direction No. 63 and not indicative of jurisdictional error.
Consideration
Direction No. 63 was made under s.499 of the Act and it is not in dispute that the Tribunal, as decision-maker, was required to comply with it. A failure to do so would constitute jurisdictional error (see s.499(2A)). (ACH15 v Minister for Border Protection [2015] FCCA 1250 and Uelese v Minister for Border Protection (2015) 319 ALR 181; [2015] HCA 15 at [10] per French CJ, Kiefel, Bell and Keane JJ).
There is no suggestion that the Tribunal failed to understand that it had an obligation to take into account the best interests of the children as a primary consideration under Direction No. 63. Rather, it is contended that the Tribunal “failed to comply” with the Direction in assessing the best interests of the child (although it appears not to be disputed that the interests of both children were relevant).
For the reasons that follow, I am not satisfied that the Tribunal failed to comply with the Direction. Hence it is not necessary to consider the Applicant’s assertions about the characterisation of any such failure, including the suggestion that such a failure could be regarded as a failure to accord procedural fairness “because the Tribunal failed to warn [the Applicant] that it did not intend to comply with the Direction”.
In this case, the Tribunal identified the need to have regard to Direction No. 63. It identified the specified primary considerations (including the best interests of any children under the age of 18 in Australia who would be affected by the cancellation) as well as the secondary considerations and referred to the statement in the Direction about the weight to be given to considerations and information from various sources. It addressed the evidence before it in relation to the specified primary and secondary considerations and then reached a conclusion.
Insofar as the Applicant contended that the Tribunal should have followed the approach in Wan, I note that Wan concerned a Tribunal decision made while an earlier Ministerial Direction was in force which in fact had no direct application to Mr Wan’s application (see Wan at [18]-[19]). In contrast, in this case the Tribunal proceeded on the basis that under Direction No. 63 the best interests of the children was a primary consideration, as was the Government’s view that the prescribed grounds for cancellation in reg.2.43(1)(p) should be applied rigorously. Moreover, it also understood and had regard to the fact that the Direction stated (at paragraph 6.2(2)) that in considering the best interests of the children, decision-makers should have regard to the fact that the cancellation of a Bridging E visa under the prescribed grounds in reg.2.43(1)(p) or (q) (as was in issue here) “does not necessarily represent final resolution of a person’s immigration status in Australia”. The Tribunal specifically referred to this requirement. Moreover, in the context of considering the evidence before it relevant to the best interests of the children, the Tribunal considered the relevance of this factor in its finding that cancellation of the Applicant’s Bridging visa would not resolve his immigration status or result in him departing Australia, as this would only result from his being unsuccessful in his pending request for Ministerial intervention.
As the First Respondent submitted, this factor was of particular relevance insofar as what was in issue was the period of time until the Applicant’s immigration status was resolved. The Tribunal also considered the evidence about the children (such as their young ages) and the nature of the Applicant’s relationship with Ms M (which his representative suggested had never been akin to a marriage-like relationship). While it recorded that the Applicant was not the biological father of the younger child, the Tribunal proceeded to address the interests of both children, accepting that the Applicant considered them both to be his children.
In that context the Tribunal addressed the evidence about how the children would be affected, in considering how their interests would be affected by the cancellation of the Applicant’s Bridging visa. It had regard to the fact that the Applicant had only lived with Ms M and the children from March to November 2013 and the evidence about the absence of any contact between the Applicant and the children for some eleven months prior to its decision as relevant in considering how the children would be affected by the cancellation of his Bridging visa.
Contrary to the submissions for the Applicant, the Tribunal had regard to the evidence of both the Applicant (and Ms M in particular) about how the children would be affected by the cancellation (see paras.27-28 of the Tribunal decision set out at [21] above). It made findings in light of that evidence, insofar as it was necessary to do so.
While the Tribunal accepted the Applicant’s evidence about his relationship with, care for and “deep attachment to the children”, in considering the best interests of the children it also had regard to the existing situation of the children (the status quo). The Tribunal also had regard to the evidence about events while the Applicant was in prison, in particular that he had not had any contact with the children (even by phone), and that at the time of the decision they “continued to reside with their primary care giver, their mother”. It found that it was the fact the Applicant was imprisoned (and Ms M’s decision not to maintain a relationship between the children and the Applicant) that separated him from the children.
The Tribunal saw the fact that the Applicant had had no contact with the children for some eleven months as relevant in considering how they would be affected by the cancellation.
The Tribunal also, properly, acknowledged and had regard to the fact that this situation (that is, the absence of contact) would continue if the visa was cancelled, unless Ms M allowed the Applicant to speak to the children by phone and took them to visit him in detention (until the Minister decided whether or not to intervene). It is clear that it understood and took into account the fact that affirming the cancellation would (at worst) maintain the status quo insofar as the children were concerned until a decision on the Applicant’s immigration status was made.
The fact that the Tribunal clearly saw it as relevant that cancellation of the Bridging visa would not represent the final resolution of the Applicant’s immigration status and would not result in him departing Australia (as that would only result from the Applicant being unsuccessful in his request for Ministerial intervention) indicates that the Tribunal recognised that the period in issue was relatively short term.
It is apparent that the Tribunal saw short term maintenance of the status quo as consistent with the best interests of these children in their particular situation, having regard to all the circumstances, and on this basis it was of the view that cancellation of the Bridging visa would not have a meaningful impact on the best interests of the children.
The Tribunal’s remark in para.34 of its reasons that, while waiting for the Applicant’s immigration status to be resolved, the children would continue to live with and would be cared for by their mother “which was in their best interests” may at first glance be seen to involve “unhappy phrasing” (see Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 322 at 287; Wu Shan Liang at 272 and now see Minister for Border Protection v SZUSU (2016) 237 FCR 305; [2016] FCAFC 50 at [41]). However, read in context, I am satisfied it amounted to a recognition that the decision to cancel the Bridging visa would not be inconsistent with what was otherwise in the best interests of the children, rather than demonstrating the application of the wrong test in the manner contended for by the Applicant. It is apparent the Tribunal was of the view that the overall best interests of the children would not be significantly affected by the decision to cancel the Applicant’s Bridging visa.
The Tribunal sufficiently considered the possibility of the children engaging with their father again, in its consideration of how they would be affected by the cancellation. It acknowledged the very limited past contact there had been as well as the Applicant’s desire to spend time with them while awaiting a decision on the Ministerial intervention request.
The Tribunal was clearly of the view that while there would be some impact on the re-establishment of a relationship between the Applicant and the children, that was in circumstances where there was an absence of a relationship (which had resulted from the Applicant’s imprisonment). It also recognised that if the Applicant was in detention re-establishment of the relationship at that time may be difficult, unless Ms M was prepared to allow him to talk to the children by phone and took them to visit him and that otherwise the children’s situation would remain as it had been since January 2014, at least until the Applicant’s immigration status was resolved.
As the First Respondent submitted, reading the Tribunal decision fairly and as a whole, it is clear that the Tribunal considered how the decision it had to make could affect the children and the potential impact on their interests of a decision to cancel the Applicant’s Bridging visa. Importantly, it proceeded on the basis that the Applicant’s immigration status in Australia would not be finally resolved by cancellation of his Bridging visa (as distinct from the then pending Ministerial intervention request) so that what was in issue was a relatively short period of time in circumstances where there was no suggestion that the Applicant would return to South Africa until after his immigration status was finally resolved (as he acknowledged in his submissions at the Tribunal hearing of 5 December 2014). The Tribunal was satisfied that cancellation of the Bridging visa would not result in the Applicant departing Australia. In other words, it was not necessary for the Tribunal to consider the impact on the children of the Applicant returning to South Africa for the purposes of the decision about cancellation of his Bridging visa.
It was in these circumstances that the Tribunal made findings which reflected a view that the Bridging visa cancellation decision would have no substantial impact on the children’s interests, given the short term in issue as well as factors such as the limited time the Applicant had lived with them, the fact that he had had very little face to face contact with them (only once during his earlier detention in Villawood and not at all while in prison) and no telephone contact with them while in prison, and their young age. It dealt with such issues on the evidence before it. As indicated, seen in context (including the subsequent findings about the impact on the family unit and the Tribunal’s conclusion) I am not satisfied that the Tribunal was applying the wrong test or misunderstood the matters it had to consider in relation to the best interests of the children in addressing the undisputed fact that, whether or not the Applicant’s Bridging visa was cancelled, while waiting for the Applicant’s immigration status to be resolved the children would continue to live with and be cared for by their mother.
The Tribunal’s acknowledgment that continuing to live with their primary care giver in the short term was in the children’s best interests, did not involve the application of the wrong test or a failure by the Tribunal to comply with the Direction.
As the First Respondent submitted, the Tribunal had regard to the primary considerations, in particular the best interests of the children, consistent with Direction No. 63 and did not fall into jurisdictional error in the manner contended for by the Applicant.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 29 July 2016
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