Deng v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FCA 260
•26 March 2025
FEDERAL COURT OF AUSTRALIA
Deng v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 260
Review of: Deng v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 738 File number(s): NSD 731 of 2024 Judgment of: SHARIFF J Date of judgment: 26 March 2025 Catchwords: MIGRATION – judicial review of decision of Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed decision of delegate not to revoke mandatory cancellation of applicant’s visa under s 501(3A) of the Migration Act (Cth) – where Tribunal required to consider best interests of minor children and legal consequences of its decision – where Tribunal found refoulment unlikely and not the “realistic outcome”– whether tribunal erred by considering best interests of minor children by reference to a counterfactual scenario that was unlikely – application upheld – matter remitted for determination according to law Legislation: Migration Act 1958 (Cth) ss 499, 501(3A)
Migration Amendment (Bridging Visa Conditions) Act 2024 (Cth)
Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA cll 8(4), 8.4, 9.1, 9.2
Convention Relating to the Status of Refugees. Opened for signature 38 July 1951. 189 UNTS 137 art 33(1). (entered into force 22 April 1954)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Opened for signature 10 December 1984. 1465 UNTS 85 art 3(1). (entered into force 26 June 1987)
Protocol Relating to the Status of Refugees. 31 January 1967. 606 UNTS 267. (entered into force 4 October 1967)
Cases cited: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513
BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29
Deng and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 738
Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; (2019) 164 ALD 139
Islam v Cash [2015] FCA 815; (2015) 148 ALD 132
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 220 FCR 44
PLQF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1483
QXNS v Minister for Immigration, Citizenship Multicultural Affairs [2024] FCA 1369
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146
Webb v Minister for Home Affairs [2020] FCA 831
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 38 Date of hearing: 11 December 2024 Counsel for the Applicant Ms T Baw Solicitor for the Applicant Immigration Advice and Rights Centre Counsel for the First Respondent Ms R Graycar Solicitor for the First Respondent MinterEllison Counsel for the Second Respondent The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 731 of 2024 BETWEEN: MANUT MAJOK DENG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
SHARIFF J
DATE OF ORDER:
26 MARCH 2025
THE COURT ORDERS THAT:
1.A writ of certiorari be issued quashing the decision of the Administrative Appeals Tribunal made on 28 March 2024 affirming the decision of a delegate of the first respondent not to revoke the mandatory cancellation of the applicant’s visa.
2.A writ of mandamus be issued remitting the applicant’s application for review to the second respondent for determination according to law.
3.The first respondent is to pay the applicant’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SHARIFF J:
INTRODUCTION
By an amended originating application filed on 12 September 2024, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 28 March 2024: see Deng and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 738 (AAT).
The applicant is a national of South Sudan. In 2014, at about the age of 19, the applicant came to Australia on a humanitarian visa.
Since his arrival in Australia, the applicant has committed a number of offences including traffic offences, which have involved significant danger to the public, and also family violence offences committed against two intimate partners. In January 2017, following an incident of family violence, the applicant was imprisoned. The applicant’s visa was mandatorily cancelled in 2017, but a delegate decided to revoke that cancellation. Following his release into the community, the applicant continued to engage in criminal offences and spent further time in custody. In 2022, following yet more offending, the applicant was found to have been driving a motor vehicle at high speed whilst disqualified from driving and caused an accident that resulted in serious bodily harm to a passenger. The applicant was sentenced to imprisonment for 15 months with a non-parole period of 10 months.
On 14 April 2023, the applicant’s Class XB Subclass 202 Global Special Humanitarian visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) (the Cancellation Decision). On 3 January 2024, a delegate of the Minister determined not to revoke the Cancellation Decision (the Non-Revocation Decision). The applicant applied to the Tribunal for review of the merits of the Non-Revocation Decision but the Tribunal affirmed the decision: AAT [16], [135]-[137].
By his amended originating application, the applicant contends that:
(a)the Tribunal failed to read, identify, understand, evaluate and/or make findings in respect of the applicant’s submissions and evidence as to the best interest of the applicant’s minor child (RC) (Ground 1);
(b)the Tribunal’s findings based on a psychologist’s opinion as to the applicant’s risk of reoffending was legally unreasonable (Ground 2); and
(c)the Tribunal failed to read, identify, understand, evaluate and/or make findings in respect of the evidence and submissions on the applicant’s personal circumstances (Ground 3).
For the reasons that follow, I am satisfied that Ground 1 should be upheld but that Grounds 2 and 3 should be dismissed. My reasons for so finding are as follows.
GROUND 1
Ground 1 relates to the primary consideration specified in cll 8(4) and 8.4 of Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA made under s 499 of the Migration Act on 23 January 2023 (Direction 99), which, relevantly for present purposes, required the Tribunal to determine whether the Non-Revocation Decision was, or was not, in the best interests of any minor children affected by the decision. In the present case, one focus of attention was on the best interests of the applicant’s daughter, RC.
The applicant submitted that the Tribunal failed to understand, evaluate and make findings as to his submissions relating to the best interests of RC. The essence of the applicant’s submission was that the Tribunal did not consider his evidence and submissions as to the correct “counterfactual”, or the various permutations arising from the likely “counterfactual”, when assessing the best interests of RC. The reference here to the correct “counterfactual” requires explanation.
The Tribunal considered the best interests of the applicant’s child by reference to two possibilities: first, by reference to the best interests of RC in the event that the Cancellation Decision was revoked and, second, by reference to the prospect that the applicant would be “detained or removed to another country”: AAT [105(d)]. The applicant said the latter was the wrong reference point for a counterfactual by which to make an assessment as to the best interests of RC. It was submitted that this was the case because the Tribunal had accepted that it was unlikely that the applicant would be removed from Australia. In support of this submission, the applicant pointed out that when the Tribunal came to consider the “legal consequences” of the Cancellation Decision and the extent of the impediments the applicant would face if he was to be removed from Australia for the purposes of cll 9.1 and 9.2 of Direction 99, the Tribunal:
(a)accepted that it was “unlikely that the applicant [would] be returned to South Sudan”: AAT [128];
(b)accepted that the applicant was likely to remain in detention for the “short to medium term” while consideration was being given to any application that he might make for a protection visa: AAT [121] and [124];
(c)considered that there was a real prospect that if the applicant made a protection visa application, the applicant would “not be refouled” and, as a result, expected that the applicant would likely be released into the community on a Bridging Visa R (BVR) subject to the conditions imposed by the Migration Amendment (Bridging Visa Conditions) Act 2024 (Cth) (Bridging Visa Conditions Act): AAT [117] and [120]; and
(d)ultimately considered that “the realistic outcome [was] that the applicant [would] remain in Australia” and would be “subject to a detention regime which in all likelihood [would] result in the applicant being released into the community at some point (but subject to strict supervision)”: AAT [136].
The applicant submitted that having concluded that the “realistic outcome” was that he would remain in Australia in detention before being released into the community subject to strict supervision, the Tribunal should have addressed the best interests of RC by reference to this specific counterfactual. The applicant submitted that he had advanced this submission to the Tribunal, but that it was not considered. In a written document provided to the Tribunal (which was styled as the “Applicant’s Evidence in Reply” (AER)), the applicant stated:
23.In the event the applicant applies for a protection visa, he will be subject to ongoing detention whilst his application is considered, which will include a character and security assessment. Ongoing detention will have adverse consequences to the mental health of the applicant and presents opportunities to relapse.
…
24.In the event the applicant does not apply or is not granted a protection visa on character grounds, the applicant will likely be impacted by the Migration Amendment (Bridging Visa Conditions) Bill 2023 was passed on 17 November 2023, amending the Migration Act 1958 and Migration Regulations 1994 in response to the High Court’s judgement in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (S28/2023) providing for certain conditions to be placed on bridging visas granted to non-citizens released from immigration detention.
24.1. The new mandatory conditions are:
i. Condition 8612 – notify the Department of full name and date of birth of each person who ordinarily resides with BVR holder within 5 working days of visa grant.
ii. Condition 8613 – obtain the Minister’s approval before performing any work or regular organised activity involving more than incidental contact with a minor or vulnerable person.
iii. Condition 8614 – notify the Department of any interstate or overseas travel at least 7 working days prior, or 2 working days after departure.
iv.Condition 8615 – notify the Department of association with, or membership of, any organisation (other than an organisation formed for the purpose of engaging in communications on governmental or political matters) within 5 working days of visa grant, and within 2 working days of any changes.
v. Condition 8616 – notify the Department of contact with any individual, group or organisation that is alleged or known to be engaging in criminal or other illegal activities, or who has expressed an intention to engage in such activities, within 2 working days after the contact occurs.
vi. Condition 8617 – notify the Department of receipt of more than $10,000
vii. Condition 8618 – notify the Department of any debts of more than $10,000 or if declared bankrupt or experiencing financial hardship or any significant change to debts, bankruptcy or financial hardship within 5 working days.
viii. Condition 8619 – provide evidence of current financial circumstances within 7 days of receiving a request from the Minister.
24.2. The new discretionary conditions are:
i. Condition 8620 – holder must remain at notified address between 10pm one day and 6am the next day. That is, the imposition of a curfew.
ii. Condition 8621 – holder must wear a monitoring device at all times, which means any electronic device to determine the location of a person or object. The holder must also allow the fitting, installation, repair and removal of the device, take any specified steps to ensure the device and related equipment remains in good working order, and notify the Department if the device or related equipment is not in such order.
…
24.4. The applicant submits that the onerous conditions will negatively impact his ability to reintegrate into the Australian Community, his ability to re-enter the workforce and maintain employment. Of particular concern is Condition 8613, as the possibility of inadvertently engaging in ‘regular organised activity’ during his parenting duties could amount to a breach, resulting in a minimum 1-year sentence for each day he is in breach of the condition.
24.5. The applicant submits that the correct and preferrable decision is that the decision under review is set aside and substituted with a decision to revoke the cancellation of his visa.
(Emphasis added.)
In the hearing before me, the applicant drew attention to the fact that the reference to condition 8613 (in the AER at [24.4]) should instead have been a reference to mandatory condition 8622, which applied at the time of the submissions and the Tribunal’s decision. It was submitted that condition 8622 adopts very similar wording to condition 8613 and that the latter was subsequently repealed due to the duplication. The penalty for a breach of condition 8622 is 5 years’ imprisonment or 300 penalty units or both. The applicant submitted that:
The scenario in which [the applicant] was released into the Australian community on a BVR subject to strict visa conditions was therefore the correct – or part of the correct – counter-factual for the Tribunal’s assessment of the best interests of [the applicant’s] daughter. However, the Tribunal did not consider this. It failed to consider the impact on RC of her father being in Australia, and not in detention, but then being prohibited from having contact with her by reason of these visa conditions. Moreover, the Tribunal did not make any reference to the precise nature of the harm that would be caused to [the applicant’s] daughter by any scenario, nor did it demonstrate that it had given the consequences of [the applicant’s] conditions on his daughter proper consideration…(see also the submissions below made further in the alternative). The Tribunal therefore failed to consider the “likely effect” of the non-revocation of the cancellation of [the applicant’s] visa on RC. This was an error.
Alternatively, the applicant submitted that the Tribunal did not consider the practical consequences associated with the legal consequences of the decision: citing Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [45] (North J); NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [9] (Allsop CJ and Katzmann J) and [177] (Buchanan J); NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 220 FCR 44 at [2] (Allsop CJ and Katzmann J), [127] and [132] (Buchanan J). The applicant further submitted that the Tribunal failed to evaluate and failed to make any finding in respect of the practical impact on the best interests of RC in the event that he was eventually released into the community in Australia subject to strict conditions under the Bridging Visa Conditions Act, which would impact on his ability to parent RC in person and raised the prospect that an inadvertent breach of those conditions may result in imprisonment. It was submitted that the Tribunal’s “mere advertence” to the applicant’s submissions was not enough and that the submissions had to be dealt with in substance: citing Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [46] (Flick, Griffiths and Perry JJ); Islam v Cash [2015] FCA 815; (2015) 148 ALD 132 at [14] (Flick J) (as cited with approval in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [35] (Perram, Perry and O’Callaghan JJ)).
In the way that the argument evolved, the applicant submitted that the Tribunal failed to give “proper, genuine and realistic consideration” to the matters raised by the applicant and thereby failed to give proper consideration to the best interests of the applicant’s child, RC: citing, by way of analogy, Webb v Minister for Home Affairs [2020] FCA 831 at [17] (Anastassiou J) (in turn citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Griffiths, White and Bromwich JJ) and Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [35]-[37] and [39]-[50] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ)).
In response, the Minister contended that the applicant’s submissions invited a series of hypotheticals and speculation. The Minister submitted that the Tribunal considered all the arguments put by the applicant in the way that they were advanced. The Minister pointed out that the submissions made by the applicant as to the “counterfactual” were advanced by him under the heading “Legal consequences of the decision”. It was submitted that the applicant made separate, and quite specific, submissions about the “best interests of minor children” which did not refer to the “counterfactual”. The Minister submitted that the Tribunal considered, and dealt with, each submission separately in the way that the applicant presented them including by addressing the counterfactuals at AAT [120] -[125]. It was said that this demonstrated that the applicant’s submissions were fully considered. Further, the Minister submitted that the Tribunal had specifically singled out (at AAT [120]) that the effect of condition 8622 was “of particular concern” because it was one that required the Minister’s approval before performing work or any organised activity that would involve contact with a minor or vulnerable person and noted that this carried “with it the possibility of the applicant inadvertently engaging in ‘regular organised activity’ during his parenting duties which if it led to conviction would result in” a term of imprisonment.
The Minister further submitted that the Court should reject the contention that the Tribunal was bound to consider a submission pertaining to the “legal consequences” of the decision as well as to its “practical consequences”. The Minister contended that there was no obligation to consider hypothetical risks and relied upon the decision of Perram J in Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; (2019) 164 ALD 139 at [17]. There, in relation to risk of refoulement, his Honour stated at [17]:
What is involved therefore on [the applicant’s] argument is not that the legal consequence of the decision is that [the applicant] will be refouled or even that this will be its practical consequence. Rather, it is but an argument that there is a risk that he will be refouled. Such a risk is not a mandatory relevant consideration. It is true that the legal consequences of a decision are mandatory relevant considerations: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at 6 [17] per Allsop CJ and Katzmann J, 39 [177]-[178] per Buchanan J. This has been applied in the context of s 501CA(4): BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 (‘BHA17’) at [35] per Griffiths J; Martin v Minister for Immigration and Border Protection [2017] FCA 1 at [24] per Katzmann J; Isley v Minister for Immigration and Border Protection [2018] FCA 632 at [84] per Kerr J. But this does not entail that speculative prospects are mandatory relevant considerations: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 (‘Ayoub’) at 519 [19] per Flick, Griffiths and Perry JJ; DOB18 at [40]-[42] per Griffiths J. …. (emphasis added)
Relying upon this reasoning, the Minister submitted that:
There can be no obligation on the Tribunal to speculate about hypothetical possibilities and to make findings on such hypotheticals, in circumstances where no specific submission was made and a fortiori in circumstances where only one such condition was identified as potentially affecting the applicant (albeit it was not in force) by way of the express submission at AER [24.4]. It is no part of the role of a tribunal of fact to speculate about matters in the absence of some articulated claim/evidence. What was said at AER [24.4] is the full extent of the applicant’s attempt to tie the BVR conditions to his particular case. The Tribunal responded to that submission making clear that the submission was appreciated and considered.
I do not accept the Minister’s submissions.
It is necessary to start with cll 9.1(1) and 9.2(1) of Direction 99. They relevantly provide as follows:
9.1 Legal consequences of decision under section 501 or 501CA
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
…
9.2 Extent of impediments if removed
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
Australia’s non-refoulment obligations as a nation-state have as their source Art 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Art (33)(1) of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees. In describing the nature and content of these obligations, Allsop CJ and Katzmann J stated in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [12] that:
The place of Art 33(1) of the Refugees Convention is central to the protection to be afforded to a refugee, that is to say, a person who satisfies Art 1A(2) of the Convention. The centrality of Art 33(1) can be seen from its non-derogable nature: see Art 42 of the Refugees Convention. It is the cornerstone of the protection of refugees and those seeking asylum. It does not create a right to asylum, but it comprises a negative obligation to refrain from acts that would risk return to persecution: see generally A Zimmermann, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary, Oxford University Press, Oxford, 2011, pp 1334–5; and A Grahl-Madsen, The Status of Refugees in International Law, A W Sijthoff, Leiden, 1972, Vol 2 pp 93–4.
(Emphasis added.)
For the purpose of presently relevant domestic law, cl 6 of Direction 99 provides that decision-makers must take into account certain considerations, including those specified in cl 9.1(1) (as set out above). Here the Tribunal was bound to take into account these considerations by reason of the operation of s 499(2A) of the Migration Act. The effect of this is that decision-makers such as the Tribunal are required to take into account the legal consequences of a non-revocation decision, which is a manifestation of the principle that in making any decision in the exercise of a statutory power, the legal framework in which that decision is made must be taken into account: see Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84] (Kenny, Flick and Griffiths JJ).
There is no doubt that the Tribunal in the present case took into account the legal consequences of the Cancellation Decision (cl 9.1) as well as the impediments the applicant would confront if he was removed from Australia (cl 9.2), and no issue was taken with the Tribunal’s careful assessment of these considerations: AAT [113]-[128]. In doing so, the Tribunal was necessarily considering a hypothetical that might arise depending on a number of permutations that were not known to the Tribunal. This included whether the applicant would, in fact, make an application for a protection visa and, if so, whether or not it would be successful, or, in the absence of making an application for a protection visa, whether the applicant could be refouled and/or would be subjected to detention before being released into community on strict conditions. In respect of the latter, the Tribunal also considered the extent of the impediments to the applicant if he was to be removed from Australia. Again, the Tribunal’s careful consideration of these matters was set out at AAT [113]-[128].
It is evident from these passages of the Tribunal’s reasons that the Tribunal accepted that it was unlikely that the applicant would be returned to South Sudan and instead found that it was likely that the applicant would be released into the community on strict conditions. As to the latter matter, the Tribunal concluded (at AAT [136]) as follows:
I accept that this has harsh consequences for the applicant himself and people who are close to him – in particular his daughter RC. However, even when these are taken into account I am not satisfied that those interests outweigh the interests of the Australian community which are in play. If it were certain that the applicant would be returned to South Sudan as a consequence of this decision I may have reached a different view and weighted the considerations differently. However, in light of the acknowledged ‘inability to return’ the applicant to South Sudan, and the realistic outcome that the applicant will remain in Australia and subject to a detention regime which in all likelihood will result in the applicant being released into the community at some point (but subject to strict supervision) I am satisfied that there is not another reason to revoke the cancellation of the applicant’s visa.
(Footnotes omitted; italics in original; emphasis added.)
Although there was a degree of hypothesising involved, the totality of the Tribunal’s reasons disclose that it considered the “realistic outcome” was that the applicant would remain in Australia and subject to detention, and would eventually be released into the community on strict conditions: see also AAT [121]. The Tribunal’s finding as to this aspect of what was to be the likely scenario was reinforced by the Tribunal’s finding that it was unlikely that the applicant would be returned to South Sudan: AAT [128]. Thus, unlike Ezegbe, here the Tribunal reached conclusions as to the likely or unlikely outcomes.
The applicant had made a specific submission that, in the event that the Non-Revocation Decision was affirmed, there was a likelihood that he would be released into the community but subject to conditions which may present difficulties in making contact with and seeing his daughter, whether in person or by electronic means. It may be accepted, as the Minister submitted, that the applicant advanced this submission as one being relevant to the “legal consequences of the decision” and the Tribunal dealt with it as such. It may also be accepted, as the Minister further submitted, that the Tribunal specifically considered and took this fact into account when, at AAT [120], it stated that condition 8622 was “of particular concern” because it raised the possibility of the applicant inadvertently breaching that condition during his parenting duties if released into the community. However, notwithstanding the Tribunal’s careful consideration and assessment of these matters, the result is that when the Tribunal considered the best interests of RC, it did so on the basis of two alternatives: the first being that the applicant would be released into the community without condition (because the Non-Revocation Decision would be set aside), and the second being that the applicant would be detained and removed from Australia. This is evident at AAT [105(d)]:
The likely effect on RC of separation from the applicant as a result of his removal is difficult to judge. I note however that her father has been incarcerated for 25 out of 47 months of her life and if he is released into the community he will not be living with her. If the applicant is detained or removed to another country, there is the prospect of ongoing communication through video calls. I note however that in circumstances where there is no or only limited prospects of a face-to-face reunion a relationship would be difficult to maintain over time”.
(Emphasis added.)
Thus, whilst accepting that the likely effect of its decision was difficult to judge, the Tribunal only considered what would occur if the applicant was released into the community as against his detention and removal to another country. The latter was an alternative that the Tribunal considered unlikely and did not reflect the “realistic outcome” that the Tribunal considered was likely. As Perram J reasoned recently in PLQF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1483 in determining an application for review of the Minister’s exercise of a power in respect of a person who was likely to be stateless (at [67]-[68]):
Whilst I accept the Minister’s submission that he was not bound to consider the best interests of the Applicant’s minor children from the perspective of every possible eventuality, I do not think this matters. Given the context in which he made his decision, the Minister was bound to consider the impact on his children of the Applicant’s finite detention whilst his protection visa application was being processed or during the pendency of any removal proceedings. Instead, the Minister examined the best interests of the children on a hypothesis which had no foundations in the reality disclosed by the material before the Minister.
Nor do I accept the Minister’s submission that this error was immaterial to his decision. Here the submission was that he concluded that it was in the best interests of the two children that the Applicant’s visa not be cancelled. The Minister proceeded on the basis that the Applicant’s refugee and statelessness claims would be tested through the protection visa process and that whilst that took place he would be held in immigration detention. In deciding to pursue that course, the Minister overlooked entirely what the effect of his decision would be on the children. A rational or reasonable process of decision making would have involved considering the bests interests of the minor children in light of the actual decision the Minister made and not some other eventuality with no foundation in reality.
Although the decision arose in a different context, his Honour’s reasoning that the Minister examined the best interests of the children on a hypothesis which had no foundation in reality has application by way of analogy here. That is because here the Tribunal itself made findings as to what the practical reality was likely to be, but then did not consider the best interests of the children from the viewpoint of that reality. Clause 8.4(4) of Direction 99 relevantly provides as follows:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
…
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
…
(Emphasis added.)
Each of these considerations required the Tribunal to assess the likely role of the applicant in RC’s life, the likely effect that separation from the applicant would have on RC and the likely impact of the applicant’s conduct on RC. The Tribunal did not consider these matters by reference to its assessment of the practical reality of the position that would prevail.
I do not accept the Minister’s submission that the applicant’s contentions proceeded on the basis of inviting error to be found on the basis of hypothetical speculation. That is because the hypothesis advanced was one that the Tribunal found to be the likely one. Nor does it matter whether condition 8622 or the other conditions do not have the effect that the applicant alleges they do. Those conditions may or may not have the effects as alleged by the applicant, but this needed to be considered in light of the impact of those conditions on the best interests of minor children by reference to the correct counterfactual. Specifically, it was a matter for the Tribunal to consider the impact of the conditions, if any, on the best interests of RC.
For the foregoing reasons, I am satisfied that the Tribunal erred. As noted above, the way in which the applicant articulated the specific error evolved during the course of the proceedings. It was variously put that the Tribunal had (a) “failed to understand, evaluate and make findings” about or “actually deal[] with” the applicant’s submissions as to the best interests of RC and the applicant’s evidence on his ability to parent RC, (b) failed to give “proper, genuine and realistic consideration” to the matters raised by the applicant and, accordingly, failed to give proper consideration to the best interests of RC and (c) failed to consider the practical consequences associated with the legal consequences of the Tribunal’s decision. In my view, the error was a failure to correctly consider and apply the best interests of the applicant’s child. I am satisfied that the error was material. Although the Tribunal considered (at AAT [109]) that the bests interests of minor children weighed “very heavily against revoking” the Cancellation Decision, I am satisfied that there is a “realistic possibility” that the overall outcome could (not would) have been different: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [16] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ).
GROUND 2
By Ground 2, the applicant submitted that the Tribunal’s rejection of the evidence of a consultant psychologist (Mr Watson-Munro) was legally unreasonable. Mr Watson-Munro had opined that the applicant’s risk of reoffending was “trending from moderate to low”: AAT [72]. The applicant submitted that the Tribunal’s rejection of this opinion was legally unreasonable in various respects which either misconstrued Mr Watson-Munro’s evidence or criticised it without proper foundation having regard to the evidence given by him. I do not agree.
The starting position is that there was no obligation on the Tribunal to accept the evidence of Mr Watson-Munro. Further, as Horan J recently stated (after reviewing the relevant authorities), a “decision will rarely be seen to be legally unreasonable in circumstances where the reasons given by the decision-maker demonstrate an intelligible justification for the way in which the power was exercised…”: see QXNS v Minister for Immigration, Citizenship Multicultural Affairs [2024] FCA 1369 at [53], citing Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [47] (Allsop CJ, Robertson and Mortimer JJ) (in turn referring in particular to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ)).
Here, the Tribunal gave a number of logical and intelligible justifications for rejecting Mr Watson-Munro’s evidence. These included that, having had the benefit of receiving Mr Watson-Munro’s evidence, the Tribunal considered that he had revealed himself as “willing to make a favourable assessment in relation to the applicant, even when the evidence did not justify it”: AAT [72]. For example, Mr Watson-Munro had asserted that the applicant “has ceased using alcohol and can be considered to be in a state of Full Remission according to international guidelines” but those guidelines provide that to be in full remission, a person must be abstinent for two years, and, as the Tribunal observed, the applicant had not been abstinent for two years: AAT [72]. The Tribunal also considered that Mr Watson-Munro had not “justified his assessment” by reference to any “forensic tools” used to make that assessment: AAT [74]. The further difficulty that the Tribunal identified was that Mr Watson-Munro’s assessment did not properly consider the “static” factors, as distinct from the “dynamic” factors, that may bear upon the likelihood of reoffending in circumstances where the applicant had previously resumed the consumption of alcohol and reoffended following release from prison.
The applicant’s written submissions sought to dissect each of the Tribunal’s reasons for rejecting Mr Watson-Munro’s evidence by pointing to other evidence or reasons why the Tribunal’s criticisms were not well founded. However, these points did no more than explain why, in the applicant’s submission, the Tribunal should have accepted Mr Watson-Munro’s evidence. These arguments did not establish legal unreasonableness.
Accordingly, Ground 2 fails.
GROUND 3
Ground 3 focussed upon the Tribunal’s finding (at AAT [76]) that the applicant’s circumstances were not “sufficiently different” from the last occasion on which he was released from prison so as to have cause for optimism that the likelihood of him reoffending had been reduced. The applicant submitted that it should be inferred from this finding that the Tribunal had not considered all of the evidence as to the steps that the applicant had taken towards rehabilitation and the different supports he would have available in the community. There was little else said about Ground 3 in the applicant’s oral and written submissions.
I do not accept the applicant’s submissions. The Tribunal carefully examined the applicant’s past offending, including the circumstances in which it occurred, and the various steps he had taken towards rehabilitation and the treatments he had undertaken: AAT [27]-[59]. It is plain that having reviewed the entirety of the evidence, the Tribunal remained concerned that the applicant had been a recidivist notwithstanding positive steps the applicant had taken in the past upon release from prison. The Tribunal concluded that it was “not persuaded” that the applicant’s circumstances were sufficiently different from “his last release from prison” so as to indicate that “he [would] engage any better” on this occasion: AAT [76]. I am not satisfied that the Tribunal’s assessment discloses any error, let alone that it had failed to have regard to the evidence in making this assessment. To the contrary, the Tribunal’s reasons disclose that it had carefully considered the evidence.
Accordingly, Ground 3 fails.
DISPOSITION
As the applicant has established Ground 1, the Tribunal’s decision must be set aside and the matter remitted to the second respondent for determination. In view of the preceding reasons, I will make orders that:
(a)a writ of certiorari be issued quashing the Tribunal’s decision made on 28 March 2024 affirming the decision of a delegate of the first respondent not to revoke the mandatory cancellation of the applicant’s visa;
(b)a writ of mandamus be issued referring the matter to the second respondent for determination according to law; and
(c)the first respondent is to pay the applicant’s costs as agreed or taxed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff. Associate:
Dated: 26 March 2025
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