El Mustapha v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 331
•17 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
El Mustapha v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 331
File number(s): SYG 1575 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 17 March 2025 Catchwords: MIGRATION – Whether Tribunal failed to afford meaningful hearing opportunity to applicant – whether, including as a consequence, Tribunal failed to consider best interests of child – whether findings inconsistent Legislation: Migration Act 1958 (Cth) ss 116, 357A, 360, 425
Migration Regulations 1994 (Cth) reg 100.221
Cases cited: ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054
Chey v Minister for Immigration and Citizenship [2007] FCA 871
DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 180 ALD 462
G v Minister for Immigration and Border Protection [2018] FCA 1229
Khan v Minister for Immigration & Anor [2019] FCCA 3057
Mahon v Air New Zealand Ltd [1984] AC 808
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188
Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121
NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 762
Perez v Minister for Immigration and Multicultural Affairs [2002] 119 FCR 454
Plaintiff M64 of 2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480
Re Ruddock; Ex parte Applicant S154/2002 (2003) 75 ALD 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1
SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1
SZMUF v Minister for Immigration and Citizenship [2009] FCA 182
Division: General Federal Law Number of paragraphs: 102 Date of hearing: 20 May 2024 Place: Sydney Counsel for the Applicant: Mr C Honnery Solicitor for the Applicant: Legal Aid Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 1575 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OMAR EL MUSTAPHA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
17 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 12 June 2019, into this Court for the purpose of quashing it.
3.The name of the second respondent is amended to the “Administrative Review Tribunal”.
4.A writ of mandamus shall issue requiring the Administrative Review Tribunal to re-determine, according to law, the application for review before it.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application seeking review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 12 June 2019, which affirmed a decision of a delegate of the first respondent (delegate) to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa (visa) under s 116 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
The applicant was granted the visa while offshore on 27 November 2017 (Court Book (CB) 2 to 5) and he entered Australia, from Lebanon, on 29 January 2018 (CB 22).
On 14 November 2018, the applicant was given notice of the intention to consider cancellation (NOICC) under s 116(1)(a) of the Act on the basis that his relationship with his wife (W) had ceased. Relevantly, the applicant and W had an infant son. In the course of the breakdown of the relationship between the applicant and W, an apprehended violence order (AVO) was taken out against the applicant the effect of which prevented his contact with W and, most relevantly to these proceedings, with their infant son.
In response to the NOICC, the applicant provided submissions dated 19 November 2018 (CB 9 to 16), which contended (errors in original):
(a)that the applicant was (at that time) involved in family law proceedings with W in relation to custody of their son, and providing a letter from the applicant’s family lawyer to give an overview of the proceedings and indicating that the applicant was likely to be granted contact with his son sufficient to satisfy reg 100.221(4)(c)(ii) of the Migration Regulations 1994 (Cth);
(b)in relation to hardship resulting from cancellation:
(i)that cancellation would bring significant emotional and psychological hardship to the applicant and his son; and
(ii)he has a close bond with his son that is best preserved by his remaining in Australia, as attested to in Statutory Declarations from his brother and sister-in-law;[1]
(c)in relation to the mandatory legal consequences arising from the Convention on the Rights of the Child (Convention), that:
(i)the applicant had been active[2] and positive[3] his parental role since the birth of the child, with the exception of the time frame during which the AVO had been in place);
(ii)the applicant intended to continue that parental role upon conclusion of the family law proceedings[4] in which proceedings the suitability of W as a parent was also in issue, and the applicant was willing and able to meet the care needs of the son as dictated by the court in those proceedings;[5]
(iii)the infancy of the child meant that in order to maintain a relationship with him, the applicant would need to be physically present in Australia; [6] and
(iv)absent the care and support of the applicant, the child would experience significant negative effects through his childhood[7] including ongoing trauma as the result of experiencing 17 years without a father.[8]
[1] see [6] below
[2] CB11 at (a)
[3] CB11 at (b)
[4] CB11 at (b)
[5] CB11 at (e)
[6] CB11 at (d) and (g)
[7] CB11 at (d)
[8] CB11 at (g)
As noted above, the applicant’s brother and sister-in-law provided Statutory Declarations (respectively) stating, “He has a good relationship with his son [name] and it would be best for both of them to be able to continue their relationship here in Australia” and “He is a good father to his son” (CB 14 to 15) (anonymisation added).
Delegate’s decision
On 7 December 2018, the delegate made the decision to cancel the applicant’s visa (CB 17).
After finding that there were grounds for cancellation, the delegate made the following findings relevant to the grounds in the present proceedings.
In respect of the degree of hardship that might be caused to the visa holder and family members, the delegate:
(a)recorded that Statutory Declarations had been provided “which attests to his character and his relationship with his son”;
(b)considered that, despite the relatively short period of time in which the applicant had reside in Australia, that it was reasonable to consider that the applicant had developed personal ties to Australia, referring “primarily” to the birth of his son;
(c)considered other matters including financial hardship;
(d)overall, in respect of hardship gave it some weight in the applicant’s favour, namely against cancellation.
In respect of the Convention and the best interests of the child, the delegate:
(a)acknowledged that integrity of the family unit is an important consideration and that Australian courts generally consider the best interests of the child to be in remaining contact with their family;
(b)summarised the applicant’s submissions as set out at [5(c)] above;
(c)acknowledged that separation of a parent from a child is not preferable, however observed that the family unit was already separated;
(d)noted that W was the primary carer for the child and had sole custody of him;
(e)took the view that the immediate welfare of the child would not be impacted if the applicant was required to depart Australia; and
(f)concluded in relation to the best interests of the child that, the matters in favour of cancellation outweighed those against (CB 28).
Tribunal’s decision
The applicant applied to the Tribunal seeking review of the delegate’s decision on 12 December 2018 (CB 29).
On 16 May 2019, the Tribunal invited the applicant to attend a hearing scheduled for 5 June 2019 (CB 37 to 39). On 27 May 2019, the applicant’s representative wrote to the Tribunal by email attaching a letter which requested to postpone the hearing by reference to the family law proceedings (adjournment request) (CB 41 to 42).
On 5 June 2019, the applicant appeared before the Tribunal to give evidence and present arguments (CB 44 to 45).
The Tribunal first addressed the adjournment request by which the applicant said it could take two years to resolve the family law proceedings. The Tribunal considered the request but refused to adjourn for that period (CB 54 at [3]).
The Tribunal found that the applicant was unable to satisfy the criteria in s 116(1)(a) of the Act, because he was no longer in a relationship with W, and it had been their relationship which had formed the basis of the grant of the visa. As such, the Tribunal found that there were grounds for cancellation (CB 54 to 55 at [7]). The applicant does not dispute in this Court that grounds for cancellation existed.
Observing that the cancellation was not mandatory, the Tribunal went on to consider its discretion as to whether the visa should be cancelled (CB 55 at [10]). The Tribunal accepted that the applicant’s preference was to stay in Australia (CB 55 at [14]). The Tribunal accepted that the applicant had a son here, and acknowledged that the presence of the child may constitute a compelling need for the applicant to remain in Australia (CB 55 at [15]).
In relation to whether to exercise its discretion to revoke the cancellation of the visa, the Tribunal made the following findings which are relevant to the grounds of review in this Court.
As to the degree of hardship which may be caused, the Tribunal acknowledged the submissions of the applicant in response to the NOICC (CB 56 at [17]) that he contended cancellation would:
(a)bring significant emotional and physical hardship to he and the child that he has a close bond with the child;
(b)the bond is best preserved by his physical presence in Australia; and
(c)that he had initiated proceedings “in the Family Court” to seek access to the child.
However, the Tribunal was not satisfied that any hardship would be caused to the applicant or the child as a result of the cancellation because:
(a)in respect of the applicant’s claimed bond with the child, while the Tribunal acknowledged the claim, it did not accept the bond to be extant because:[9]
(i)despite the claim to have played an active role in the son’s upbringing before the AVO was in place, “the applicant has presented no evidence of any interactions with his son” and there was “no evidence” that he had spent time with the child, provided emotional or financial support to the child or that he had ever established a relationship or adopted parental responsibilities; and
(ii)it was not satisfied “on the limited evidence before it” that such a relationship would be established in the future;
(b)in respect of the claim that the applicant had commenced family law proceedings to obtain access to the child, the Tribunal:
(i)accepted that the proceedings had been commenced; and
(ii)was otherwise not satisfied based “on the limited evidence before it” that such a relationship (read in context as presumably being a reference to a meaningful or close relationship) would be established in the future once the family law proceedings were finalised;
(iii)however later accepted that if the applicant were able to see the child in the future either by reference to the lifting of the AVO and/or the outcome of the family law proceedings, and then were required to depart Australia, this may cause hardship to the applicant and his family.
[9] CB 56 at [18] and CB 57 to 58 at [27]
The Tribunal considered the applicant’s submissions in response to the NOICC which relied on the Convention (CB 55 to 59 at [35] to [36.5] (see [5] above)). For the balance of [36], the Tribunal made findings about those submissions, namely:
(a)the applicant “presented no probative evidence” to support his assertions;
(b)while the applicant claimed that there was no evidence that the child had been affected by the applicant’s conduct to date (presumably a reference to the circumstances which led to the AVO), there was also no evidence to support the applicant’s assertion that the child would be traumatised from being separated from his father;
(c)there was “no supporting evidence before the Tribunal to support” the claim that the applicant had developed an emotional or psychological bond with his son; and
(d)there was no evidence from a health practitioner to support the claims that he son would be effected, much less be traumatised, by the applicant’s absence.
In short, the Tribunal wholly rejected the claims about the applicant’s existing, and aspirational, relationship with his son as contended for by him in response to the NOICC.
After considering and rejecting a claim that the applicant’s nieces and nephews would also be adversely affected by the cancellation of the applicant’s visa the Tribunal concluded:[10]
that the best interests of children would not be beached [sic] as a result of the cancellation.
[10] CB 59 at [38]. See also final sentence of [36]
Considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled.
APPLICATION TO THIS COURT
These proceedings were commenced by an application to show cause filed by the applicant on 27 June 2019, at which time he was unrepresented.
The proceedings were initially docketed to another Judge of the Court (first primary Judge). On 18 July 2019, a Registrar of the Court made procedural orders, granting the applicant leave to amend the application, and listing the proceedings for callover before the first primary Judge on 10 February 2021.
The applicant did not avail himself of the grant of leave to amend.
The proceedings were later transferred to the central migration docket, possibly by reason of the retirement of the first primary Judge.
On 13 April 2023, a Notice of Address for Service was filed by the applicant, which had the effect of appointing Legal Aid NSW as his legal representatives. On 13 June 2023, a Registrar made orders by consent, extending the time for the applicant to file and serve any amended application to 16 June 2023. On 15 June 2023, an amended application was filed.
On 13 March 2024, the proceedings were docketed to me, and I made orders on that date which, inter alia, provided an additional grant of leave to amend and listed the proceedings for final hearing before me on 20 May 2024. The applicant availed himself of the further grant of leave by filing a further amended application on 15 April 2024 (Further Amended Application). The applicant and the first respondent were ordered to file written submissions 14 and 7 days in advance of that hearing (respectively), which they did.
At hearing, the parties were each represented by their respective Counsel. Read for the applicant was an Affidavit of Gerard McAleese made on 15 April 2024 which annexed the transcript of the applicant’s hearing before the Tribunal (Transcript Affidavit). The Court Book was tendered for the first respondent and marked as Exhibit “1R”. The Court has been assisted by the submissions made by Counsel for each party at hearing, and in writing.
By the Further Amended Application the applicant raises the following four grounds of review (particulars omitted):
1. The Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth).
2. The Tribunal’s purported consideration of the best interests of the child is affected by jurisdictional error.
3. The Tribunal’s decision is affected by contradictory findings and is illogical.
4. The Tribunal’s decision is affected by reasoning and findings that lack a probative evidentiary basis and are irrational or unreasonable.
At the commencement of the hearing, Counsel for the applicant confirmed that ground 4 was no longer pressed.
Ground 1
The first ground alleges that the Tribunal breached its procedural fairness obligations by failing to comply with s 360 of the Act.
Section 360 of the Act provided as follows:
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The relevant principles were not in dispute between the parties in respect of the requirements of s 360.
The obligation in s 360(1) of the Act to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review:
(a)is mandatory unless one of the following exceptions from s 360(2) applies:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
in which case the applicant is not entitled to appear before the Tribunal; and
(b)is a statutory obligation within the ambit of matters with which Part 5 of the Act deal. As such, it comes within the scope of s 357A of the Act.
It is well established that, in order to comply with s 360 of the Act, the hearing opportunity which the Tribunal invites the applicant must not be a “hollow shell” or “empty gesture”: see Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 (Mazhar) at [31] per Goldberg J. The invitation must be a real and meaningful one and the obligation exists whether or not the Tribunal is aware of circumstances which would defeat that obligation: see Mazhar (supra), Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37] per Gray, Cooper and Selway JJ and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30] per Ryan, French and RD Nicholson JJ.
The Tribunal’s obligation under s 360 of the Act includes an obligation to identify dispositive issues so that the opportunity afforded to the applicant includes that they are able to give evidence and present arguments in relation to said issues. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [35] the High Court said:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
The obligation can be breached where the Tribunal either fails to identify the issues adequately and/or curtails the applicant’s attempts to address them.
In NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456, the applicant sought review of a decision to refuse him a bridging visa. During the Tribunal hearing, the Tribunal frequently used the future tense instead of present conditional tense when discussing the visa conditions. That applicant contended, as a result, that he/his representative had been left with an understanding that the visa would issue, such that submissions were not made in support of the grant of the visa. After a detailed consideration of the Tribunal hearing transcript, the Court was ultimately not persuaded of the alleged error, however, said the following in obiter at [86] to [87] (emphasis added):
If the presiding Member were to state to an applicant that he or she need not give evidence or present arguments relating to an issue, then later, forgetting this, were to give a decision adverse to the applicant turning on that very issue, the applicant's entitlement to relief would depend, not on the natural justice hearing rule, but on the question of the proper construction of subs360(1) and succeeding provisions, because they deal with the "matter" of an applicant's right to give evidence and to present arguments on "issues arising in relation to the decision under review."
If, at an MRT hearing, the Member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue, the MRT would have failed to comply with the obligation impliedly imposed on it by s360 and following sections. The MRT would not, however, have failed to observe the natural justice hearing rule because that rule would have been excluded in the relevant respect by subs 357A(1).
The decision of Chey v Minister for Immigration and Citizenship [2007] FCA 871 involved a partner visa in which the critical issue for the Tribunal was whether, at the time of its decision, the Tribunal was satisfied that the applicant and sponsor had a mutual commitment to a shared life together and that their relationship was genuine and continuing. There, the Court observed that, while at hearing the Tribunal identified the issues arising in relation to the decision under review, the overwhelming focus of the hearing was specific events which had happened several years earlier, and the communication with the sponsor in respect thereof. The Court observed that, despite many other matters being relevant to the review, including the couple’s living arrangements, the significance of the birth of their child to their commitment to one another and the social aspects of the relationship, the Tribunal failed to identify those matters to the applicant as being:
…of potential importance to is decision, in order that the appellant might have the opportunity to expand and explain why his account should be accepted.[11]
[11] Chey (supra) at [30]
The Court found that, while not misleading the applicant in the manner identified in NAQF, that the Tribunal’s focus on a single subject had:
…monopolized the Tribunal’s attention with the result that it did not identify for the appellant the other issues arising on the review, in order that the appellant might address them by evidence or argument. This constituted a breach of s 360(1) of the Act and jurisdictional error.[12]
[12] Chey (supra) at [31]
The judgment in NAQF (supra) was delivered only a short time after SCAR (supra) and before Chey and SZBEL.
In Re Ruddock; Ex parte Applicant S154/2002 (2003) 75 ALD 1 (Applicant S154) at [3], Gleeson CJ held that indications on the part of the decision maker of acceptance of particular evidence do not affect the content of procedural fairness, unless they result in a change in the way the case is presented, stating:
Secondly, the particulars in the order nisi complain of a denial of procedural fairness by the creation of a wrong and misleading impression and a false belief that the Tribunal had accepted part of the prosecutrix's evidence. I do not accept that contention. Additionally, however, it should be noted that what is alleged is materially different from a complaint that, apart from the creation of a misleading impression or a false belief, the Member in some way, by his conduct of the proceedings, prevented the prosecutrix, and the migration agent who was assisting her, from presenting her case as they wished, or from saying everything they wanted to say. Further, there is no complaint that the prosecutrix received insufficient assistance or encouragement from the Tribunal Member. If any such complaint were made, there would be a serious question to be considered as to the relationship between a complaint of that nature and the requirements of procedural fairness.
While Applicant S154 was also decided prior to the High Court’s decision in SZBEL, it is often cited by the first respondent in conjunction with SZBEL as establishing the proposition that Tribunal proceedings are inquisitorial in nature, and that the reviewer is not obliged to make out an applicant’s case for him. So much can be accepted.
However, given the obligations of the Tribunal under s 360 to give the applicant a meaningful opportunity to give evidence and present arguments, where an applicant is unaware of the dispositive issues in the review such that they are oblivious to matters upon which evidence ought to be forthcoming, or they are dissuaded from giving such evidence, this can constitute error.
In DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 180 ALD 462 at [81] Mortimer J (as her Honour then was) said the following[13] (emphasis in original):[14]
As Gray J also emphasises in SZHKA at [6], one of the express purposes of the obligations in s 425 to invite a person to a hearing (and conduct a hearing if the invitation is accepted) is so that a review applicant can present “evidence”. While that may often be evidence from the review applicant, it may also be evidence from other witnesses, including expert witnesses. The reason why that is so important is explained in the same decision by Gyles J at [27] (with my emphasis added):
In my opinion, the obligation to invite an applicant to appear before the Refugee Review Tribunal (the Tribunal) to give evidence and present arguments relating to the issues concerning the decision to refuse a visa is fundamental to the review of protection visa decisions provided for by Pt 7 of the Migration Act 1958 (Cth) (the Act). By that stage the applicant will have been refused a visa by the Minister (or the delegate of the Minister) with written reasons provided (s 66(2)(c)) and the Tribunal does not consider that it should decide the review in the applicant’s favour on the basis of the material before it (s 425(2)(a)). In other words, the Tribunal will require persuasion.
[13] Albeit in the context of a visa refusal not a cancelation
[14] Citing SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1
An applicant should be made sufficiently aware as to the matters about which the Tribunal requires such persuasion.
Consideration
By the particulars to ground 1, the applicant contends that the Tribunal departed from the delegate’s findings. The applicant says that, significantly, the delegate can either be taken to have accepted (or at least not impugned) various of the applicant’s claims in the NOICC response by which he asserted a strong bond with his son and that he intended this to continue into the future. By contrast, the applicant says the Tribunal failed to adequately notify him of critical issues to which its reasoning processes were directed, namely the nature and strength of his relationship with the son, in circumstances where he would not have been on notice from the decision of the delegate that such claims may now be in doubt.
The first respondent says that the delegate’s reasons sufficiently indicated the strength of the relationship was in issue and that the ground otherwise fails on a “straightforward reading” of the transcript of the Tribunal hearing. It is contended for the first respondent that, when regard is had to the Tribunal’s interactions with the applicant at hearing, there is no basis for the Court to conclude that he could have assumed that the strength of his relationship with his son was not a matter of concern to the Tribunal. The first respondent also says that the nature of the applicant’s relationship with his son was a matter peculiarly within his knowledge, and it was therefore for him to put whatever he wished to the Tribunal on the subject.
The significance of the delegate’s decision
As part of its obligation to give the applicant a meaningful hearing opportunity, the Tribunal was required to identify the issues in the review at a level of specificity such that the applicant was sufficiently put on notice of the matters which placed him in a position where he could meaningfully avail himself of an opportunity to be heard: see SZMUF v Minister for Immigration and Citizenship [2009] FCA 182. The first step in the enquiry is to understand the decision of the delegate and of what, based on the delegate’s reasoning, the applicant can/cannot be considered to be on notice as being dispositive.
As set out at [9] above, the delegate gave weight in the applicant’s favour to the consideration of hardship to him and his family. The findings of the delegate acknowledged the Statutory Declarations from family members which it described as attesting to the applicant’s character and to his relationship with the son. On one view, the delegate may simply have been saying that their content went to those topics. However, it is a matter of moment that there is no part of the delegate’s reasoning about hardship which rejects the applicant’s claim that he and/or his son would suffer significant emotional or psychological hardship. The delegate also referred to, and made no adverse findings in respect of, the applicant’s claim to be involved in family law proceedings for his “future contact and care for his son”.
I disagree with the first respondent’s submission at [50] above that the delegate’s reasons sufficiently indicated the strength of the relationship between the applicant and his son was in issue. While it is true that the delegate does not go so far as to expressly accept those claims, I agree with the applicant’s characterisation that the findings do not impugn the applicant’s asserted relationship with the child, and his future intentions. That conclusion is reinforced by the fact that the delegate not only did not cavil with the applicant’s assertions, it concluded overall that the consideration weighed somewhat in the applicant’s favour against cancellation. As such, I agree that the applicant would not have been on notice from the delegate’s decision that the submissions he made in respect of hardship to his son and to him, would necessarily in issue before the Tribunal.
In respect of the findings of the delegate in respect of the Convention, the delegate summarised the applicant’s claims in this regard as follows:
The visa holder has expressed that he has been active in his parental role since the birth of his son with exception of the timeframe in which the Apprehended Violence Order (AVO) has been in place. He has played a positive role in his son’s life and wish to remain in Australia to reside with his son. Due to the young age of his son being 13 months old, his presence is required to remain in Australia to maintain the relationship otherwise the child may suffer from significant negative effects with ongoing trauma throughout his childhood without the support and care of his father. Furthermore, the visa holder has stated that subject to the family law proceedings, he is willing and able to provide the care for his son.
The applicant submits to the Court that the delegate also did not impugn the above submissions. I agree that the delegate did not reach a conclusion about the ability of the applicant to establish and maintain an ongoing relationship with his son. Rather, the operative finding of the delegate in relation to Australia’s international obligations pursuant to the Convention is contained in the second part of the extract at [64] below, namely that the immediate welfare of the (infant) child would not be impacted by the applicant departing Australia. In the absence of any finding rejecting the submissions it summarised (see [54] above), the applicant would not have been on notice that those matters as submitted by him in respect of the NOICC would be in issue before the Tribunal. The delegate’s decision did not include findings which rejected the applicant’s statements about his intentions to play an active parental role in future.
From this, at most the applicant was on notice that a dispositive issue for the delegate was whether cancellation of the visa would impact the immediate welfare of the infant. It can be accepted as a matter of common sense that the immediate welfare of an infant might not be impacted if a non-primary care giver were to depart the country and, therefore, from the child’s life. There seems to be no particular dispute that the applicant was not the primary caregiver at the time of either decision of the delegate. There was also no dispute that the applicant did not have custody of the infant, and the applicant made submissions and provided supporting documentation that he was endeavouring to change that state of affairs by family law proceedings.
The issues dispositive of the review
As observed in SZBEL (supra) (see [38] above) the point at which to begin identifying issues arising in relation to the decision under review will often be the reasons given for that decision.
The term “issues” within s 360[15] is not to be narrowly construed: see SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 at [23] per Flick J. What constitutes an issue will include matters about which the Tribunal holds reservations, and are sufficiently substantial to be dispositive of the claim[16] and there a multitude of ways in which a Tribunal can indicate to an applicant that it doubts the account being given without trespassing into the need to give a “running account” of the evidence: see SZFDZ (supra) per Flick J at [24] citing SZBEL.
[15] Noting that in SZFDZ (supra) the Court was considering the (then) s360 analogue in Part 7 of the Act, s 425
[16] ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 at [58] per Bromberg J
To identify issues the Tribunal was not required to expressly list them for the applicant, narrate its concerns[17] nor even to identify the significance of the questions it asked him. However, by its conduct of the hearing the opportunity to address dispositive issues needed to be facilitated. In Khan v Minister for Immigration & Anor [2019] FCCA 3057, Judge Humphreys observed the following at [18] to [19]:
There is no doubt that there is no requirement on the Tribunal to identify the significance of the questions it asks. However, it is required to allow the applicant the capacity to put their case. It is required to identify those issues which will be dispositive. I consider that this case is distinguishable simply because it was not made clear to the applicant in any way during the course of the hearing, as to whether or not he had the capacity to employ the nominee on a full-time basis for two years.
It is a matter of procedural fairness. I am satisfied that had those questions been asked, the applicant would have had the opportunity of putting forward some material. Had the Tribunal formed a negative view based on the applicant’s answers, then that would have been the end of the matter, but it did not ask any of those questions.
[17] SZBEL at [48] citing Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369
As Lord Diplock said in Mahon v Air New Zealand Ltd [1984] AC 808 at 821 about natural justice (emphasis in original):
The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result.
If the Tribunal invites an applicant to appear and says nothing about a matter on the basis of which the Tribunal decides against the applicant, it fails to comply with s 360 of the Act. In Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404 the Full Federal Court said the following at [63] to [64] (emphasis added):
However, if the tribunal takes no step to identify some issues other than those that the delegate considered dispositive, and does not tell an applicant what that other issue is, that applicant is entitled to assume that the issues the delegate considered dispositive are the issues arising in relation to the decision under review. On review by the tribunal, the issues arising in relation to the decision under review would be those that the original decision maker identified as determinative against the relevant applicant, unless some other additional issues are identified by the tribunal, as they may be. If the tribunal invites an applicant to appear and says nothing about a matter on the basis of which the tribunal decides against the applicant, then it would not have complied with s 425 and the applicant would not have been accorded procedural fairness: see SZBEL’s Case at [37].
There may well be cases where the tribunal’s questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. Such an indication may be given in many ways. It is not necessary for the tribunal to put to an applicant, in so many words, that the applicant is lying or that the applicant may not be accepted as a witness of truth or that the applicant may be thought to be embellishing the account that is given of certain events. The tribunal is not to adopt the position of a contradictor. However, where there are specific aspects of an applicant’s account that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask that applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted: SZBEL’s Case at [47].
In this case, the Tribunal’s reasons in respect of hardship and the best interests of the child turned upon what was repeatedly said to be a dearth of evidence as to the strength of bond and relationship the applicant had with his infant son.[18] In circumstances where the delegate had not made findings which doubted the applicant’s assertions to that effect, the question critically arises as to whether, at hearing, the Tribunal sufficiently identified those matters which were decided against the applicant, as being in doubt, so that the applicant could address them and the hearing would be a meaningful one. As is clear from Khan (supra) this did not require signposting by the Tribunal by an express exposition of the reason for the questions. But it did require a substantive opportunity to provide responses to relevant issues. Significantly, as will be seen below, the Tribunal did not ask the applicant any questions relevant to the issue such that the applicant answers, or even lack thereof might have then justified the conclusions to which it came.
[18] CB 56 at [18]
The Tribunal hearing
Counsel for the respective parties addressed the Court at hearing in respect of the relevance to this ground of the transcript of the Tribunal hearing.
The transcript records the Tribunal as having adopted a structure which methodically reflected the PAM3 considerations. That structure was also then adopted for the purpose of the Tribunal’s reasons. After preliminary matters were addressed, the Tribunal commenced an exploration of the first of the considerations, being the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia. The following portions of the transcript record the exchange between the applicant and the Tribunal on that issue (emphasis added):[19]
[19] Transcript Affidavit at T03.39 to T04.16 and Transcript T04.39 to T05.26
Tribunal:All right. So if I find that there are grounds for cancelling your visa, the next question before me is whether or not your visa should be cancelled. There are a number of things that I am required to look at. We will go through them one by one and I'll ask for your comments. The first is the purpose of your travel to and stay in Australia and whether you have a compelling need to remain in Australia. So what would you like to say about that?
Applicant: Yeah, more than - the fact that I have a child, is there any other circumstance that is bigger than this? And he believes in your justice and because he needs to be next to his son and his son needs him to be with him.
Tribunal:All right. Any other reason why you think you have a compelling need to stay here or whether you are fulfilling the purpose of your visa?
Applicant:There is nothing bigger than being with my son and I'm happy in this country and I'm happy to work here, to provide for my son. And my life was good here.
Tribunal: Anything else, sir?
Applicant: No.
Tribunal:I will consider whether you have complied with visa conditions. I'm not aware of you not complying with any visa conditions. Did you want to say anything about that?
Applicant: No.
The first respondent says that there was no failure to give the applicant a genuine opportunity to present evidence and arguments about his relationship with his son and that “the applicant could have said whatever he wished on that subject to the Tribunal”.[20] The first respondent says that it was for the applicant to advance whatever evidence or argument he wished and for the Tribunal to decide whether the claim was made out, citing Applicant S154 (supra). An example of this is said by the first respondent to be the exchange which forms the bolded portion of the extract at [64] above. The first respondent says that in response to a direct question from the Tribunal in relation to the applicant’s purpose of travel to Australia and whether there was a compelling need to remain the applicant mentioned the son, and the Tribunal asked him a question which gave him the opportunity to elaborate.
[20] First respondent’s written submissions filed on 10 May 2024 at [13]
While the first respondent says the Tribunal’s question to the applicant at the conclusion of the bolded portion of the extract at [64] was a further invitation to the applicant to say whatsoever he wished about the son, read in context, it was not. Rather, it was an opportunity to give identity any additional compelling needs to remain in Australia, reflected by the Tribunal pivoting immediately to the issue of compliance with visa conditions.
Next of relevance, the Tribunal turned to the question of the degree of hardship that may be caused if the visa was cancelled and the following exchanges took place:[21]
[21] Transcript Affidavit at T04.18 to T05.25
Tribunal:Okay. I will consider the degree of hardship that may be caused to you if your visa is cancelled so that may include financial, psychological, emotional or any other type of hardship that you might want to bring to my attention.
Applicant: Yeah. I want her to look at my situation because definitely, if I go back to Lebanon, that means that I would be totally – my life would be totally ruined. Especially that I left Lebanon and now I am 42 years old and I don’t have work there. I don’t have life and I would be far away from my son.
Tribunal:Is there any reasons why you couldn’t get a job in Lebanon? Is there any reason why you shouldn’t be established in life. You haven’t lived in Australia for very long. You’ve only lived in Australia for just over a year, so why do you think you would not be able to re-establish yourself in your home country?
Applicant: But you know, all old people, the old guys are jobless. There are lots of problems and do you know what happened in Tripoli two days ago that brought people’s life backwards and mostly is that I would be far away from my son.
Tribunal: So I have no evidence that you’ve given up your job. I have no evidence that you wouldn’t be able to get a job. I have no evidence that you have tried to get a job and you are not able to. And as I've said, you've only been in Australia for less than a year and half. I'm not convinced that in that fairly short period, you would not be able to re-establish yourself in your home country.
Applicant:Yeah, there is my son here and also the psychological distress that I have. And also what happened to me.
Tribunal:What psychological distress and what has happened to you? I'm not sure what you're referring to.
Applicant:Like, as a father, like, I have a son and after 40 years, I cannot see him. I cannot be with him.
Tribunal:Are you subject to any court orders or are you subject to any proceedings at the moment?
Applicant:After what happened - because I'm going to initiate the proceedings just so could I see the son, the boy, in order to have contact with my son.
Tribunal:So you're not seeing your son at the moment. Is that what you're saying?
Applicant: No.
Tribunal: And why is that?
Applicant:She doesn't want it because that would enable me to stay in this country and she doesn't want me to stay in this country.
Tribunal:You seeing your son has nothing to do with you staying in this country or not staying in this country. Why does your ex-partner not want you to see the child?
Applicant: Because of this. Because, this way, I would be out of this country.
Tribunal: So are there any formal restrictions for you to see your son?
As the above extract makes clear, when the applicant again raised the topic of his son in respect of hardship, the Tribunal directed its questioning to the questions about his employment. By contrast, when discussing the applicant’s claimed inability to re-establish himself in Lebanon, the Tribunal discharged its task of identifying to the applicant that the brief time he had been in Australia, and the lack of evidence about his ability to get work in Lebanon was a dispositive issue. Had the Tribunal adopted the same approach and asked even a few questions to indicate that the strength of the applicant’s relationship with his son was in issue, there would be no basis to the allegations in ground 1.
However, there were no further questions asked which identified to the applicant and thereafter would give him the opportunity to address the matters which were the bases of the Tribunal’s findings in respect of his son. Once again, the applicant had sought to raise the topic himself on multiple occasions to which the Tribunal member responded that the applicant seeing his son had “nothing to do with you staying in this country or not staying in this country”. That statement is somewhat extraordinary in the context of the matters the Tribunal was required to consider.
At the conclusion of the discussion regarding hardship (the majority of which was devoted to an in-depth exploration of the circumstances in which the AVO was made (in a manner reminiscent of Chey (supra) as extracted [41] above), the Tribunal member said:[22]
All right. I think we’re done hearing about the hardship. Anything else that you wanted to mention about the hardship?
[22] Transcript T10.46 to T10.48
from which the applicant returned to the topic of his son, saying:[23]
The fact that I would be far away from my son, psychologically that’s very distressing. You know, like theses things, you know, affect a person dramatically. Like, in terms of work for his work for his future for his life; many people’s life that’s could be ruined.
[23] Transcript T11.06 to T11.09
I disagree with the first respondent’s submissions (see [50] above) about what the transcript reveals. A fair and contextual reading of the aforementioned parts of the transcript, but also of the transcript as a whole, demonstrates that it was the applicant who consistently raised the topic of his son for discussion, and that he did so by reference to the ongoing and long-term support when he sought to discuss matters such as:
(a)the applicant’s absence being something which might have psychologically distressing impacts on the child’s long-term prospects including “for his work, for his future, for his life”;[24] and
(b)the applicant’s absence not being in the best interests of the child in terms of support including “moral support”[25] (being a concept which logically directs itself beyond questions of financial or tangible support).
yet despite having done so the Tribunal did not identify for him the determinative issues such that he could address them and, when he did raise his son, the Tribunal seemingly avoided the topic.
[24] Transcript Affidavit at T11.08
[25] Transcript Affidavit at T18.32 to T18.37
When the Tribunal raised the issue of Australia’s international obligations and whether these might be breached if the visa were to be cancelled, it was the applicant who (in essence) raised the Convention saying:[26]
According to the United Nations, there is no law that allows separation of a father from his son.
to which the Tribunal simply pivoted to discussing whether the applicant was claiming to fear harm or persecution on return to Lebanon.[27] This exchange is particularly relevant in respect of ground 2.
[26] Transcript T16.15 to T16.16
[27] Transcript at T16.19 to T16.33
Conclusion
Based on all the material before me, I accept the applicant’s submission that the error in ground 1 can be traced from the Tribunal departing from the delegate’s findings on decisive issues, without adequately identifying those issues to the applicant.
As noted above, a fair reading of the Tribunal’s reasons for decision demonstrates that an issue dispositive of the review from the perspective of the Tribunal were the matters which it identified from his NOICC submissions (see at [18] above). It is apparent from the Tribunal’s reasons that it had doubts about those matters in circumstances where the delegate’s decision did not indicate they were necessarily in issue.
I accept the applicant’s contention that the nature of the hearing which the Tribunal conducted “essentially bypassed” the issue of the applicant’s relationship with his son as is demonstrated by the transcript as extracted at [64] and [67] and the summary at [72] above.[28] Further, and having regard to all the material before me, I am satisfied that in a number of instances where the applicant sought to raise or return to the subject of his son, including the best interests of that child, the Tribunal member stymied (or, to use the language of NAQF (supra) per Lindgren J at [97], “dissuaded”) his doing so by changing topic and otherwise halting discussion. This also contributed to the applicant not being given a meaningful opportunity to give evidence and present arguments.
[28] Ground 1(e)(ii)
I am satisfied that this had the effect that the Tribunal’s conduct of the hearing, when considered in light of its eventual findings at [36] of the decision in relation to the strength of the applicant’s relationship with his son, constituted a failure to afford the applicant procedural fairness by denying him a meaningful hearing opportunity, particularly in the manner identified in SZMOK (supra) per Emmett, Kenny and Jacobson JJ.
Had the applicant been given a meaningful hearing opportunity to address the Tribunal’s consideration doubts and to persuade it (see DCP17 (supra) at [47] above) as to the relationship with his son, the applicant may have improved his evidence. Of course, the applicant may also not have, in which case the Tribunal’s findings would more likely have been open to it: see Kahn (supra). However, it was the opportunity to give evidence which was key. Further, had the Tribunal not pivoted from topic of the son whenever it was raised by the applicant, the same can be said.
I am satisfied that the Tribunal’s failure to accord the applicant a meaningful hearing opportunity for the purposes of s 360 of the Act as alleged by ground 1 is in error and, applying the above counter-factual, the error is material.
Ground 2
The second ground contends that the Tribunal erred by failing to have regard to the best interests of the applicant’s child as required by the Convention.
As the applicant correctly observes, consideration of the best interests of a child required the Tribunal to engage with what is likely to occur to a child, and to articulate, with some degree of specificity, how the child’s interests are likely to be affected: see G v Minister for Immigration and Border Protection [2018] FCA 1229 at [219] per Mortimer J (as her Honour then was). What is required is a close consideration of the material and evidence, a determination of what in fact were the best interests of the child, and then an assessment of those interests as a primary consideration: see Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 762 at [51] per Judge Goodchild.
The applicant again submitted that the Tribunal bypassed the issue of the applicant’s relationship with his son and made statements to the applicant that suggested the relationship was not an issue dispositive of the review, for example, “you seeing your son has nothing to do with you staying in this country”.[29] The ground is also alternatively framed, in terms that the Tribunal did not give proper, genuine or realistic consideration to what the best interests of the child were, or meaningfully evaluate the applicant’s claims regarding his relationship with his son and the impact of the potential cancellation on him.
[29] Transcript at T05.19 to T05.20
The first respondent says the Tribunal considered the Convention “as a matter of policy”, concluding that the best interests of the applicant’s son would not be affected by cancellation of the visa at [36] to [37]. The first respondent says the Tribunal did not proceed in a manner which was inconsistent with the Convention but that even if it did, it did not have to notify the applicant of its intention to so depart. The first respondent also says that the applicant’s assertion that the best interests of the son were otherwise than as found by the Tribunal, constitutes an attempt to have the Court conduct an impermissible merits review. The caution contended for by the first respondent is a sensible one. It is not for this Court to assess for itself the best interests of the applicant’s child, nor can the Court find error simply because it disagrees with the conclusion the Tribunal came to in respect of the child. These matters do not form any part of the Court’s task.
Consideration
In Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480, Allsop CJ said the following at [54] to [55]:
The Full Federal Court decisions of Vaitaiki v Minister for Immigration & Ethnic Affairs [1998] FCA 5; 150 ALR 608 and Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568; 107 FCR 133 provide guidance on how a Tribunal is to give proper, genuine and realistic consideration to the best interests of children affected by the decision. In Wan, the Full Court found that the failure of the decision maker to identify anywhere in his written reasons what the best interests of the children indicated, was of particular significance: see Wan at [26]. The Full Court at [30] set out elements of the best interests of the children which had not been elucidated by the Tribunal: that the children as citizens of Australia would be deprived of the country of their own and their mother’s citizenship and “of its protection and support, socially, culturally and medically, and in the many other ways evoked by, but not confined to, the broad concept of lifestyle”, citing Vaitaiki at 614; the resultant social and linguistic disruption of their childhood as well as the loss of their homeland; the loss of educational opportunities available to the children in Australia; and their resultant isolation from the normal contacts of children with their mother and mother’s family.
As I said in Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450; 119 FCR 454 at [118], the interests of the children are considerations in respect of their human development — their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision of the Minister.
The applicant says that the errors in ground 1 affected the Tribunal’s purported assessment of the best interests of the child under the Convention. I agree that the error alleged by this ground is inextricably linked to the error found in respect of ground 1, particularly by reference to that which is set out at [73] above. As such, I repeat the findings in respect of ground 1 as to the manner in which the applicant was denied procedural fairness by not having been given a meaningful hearing opportunity pursuant to s 360 of the Act.
The applicant, not having been given a meaningful hearing opportunity in relation to the issue of his relationship with his son, necessarily affected the Tribunal’s analysis of the best interests of that child.
I accept the applicant’s submissions that by failing to explore the applicant’s relationship with his son, the Tribunal was unable, in substance, to treat the best interests of the child as a primary consideration, which failure is an error in and of itself.
It is unnecessary to explore the many other ways in which the Tribunal might, alternatively, have failed to properly assess the best interests of the applicant’s child. However, it is worthwhile to observe the following.
In Perez v Minister for Immigration and Multicultural Affairs [2002] 119 FCR 454, Allsop J (as his Honour then was) observed the following at [120] to [121] (emphasis added):
The delegate certainly took facts concerning the family and children into account. He recognised, and expressed himself in par 17 as balancing it, the element of compassion. But that is not to undertake the necessary task, which is not based on compassion or recognition of suffering. The task is a humane and analytical one: of identifying what are the best interests of the children, and then considering them in the way the law requires.
…
However, these are young children, at an age at which all aspects of their mental, physical, social and educational wellbeing and development could be enhanced by the presence or ready availability of a father, not in incarceration, especially in circumstances where the delegate did not, and could not, say how long Mr Perez might be in Australia, and possibly able to provide advantages of this kind to his children and step-child. If his removal is able to be effected, but only after some further considerable time, that time might be very important to one or more of these children in his, her or their growth and development. This kind of consideration is what Teoh requires, not what is reflected by the delegate's reasons.
It is relevant to observe that the applicant’s son was born in October 2017. Accordingly, at the time of the Tribunal hearing and decision[30] the applicant was 20 months old and the AVO had been in place for approximately 14 months. Given the age of the applicant’s child as at the time of the Tribunal’s decision, there is force to the submissions which were made for the applicant in the Court in support of ground 2, that a proper consideration of the best interests of the applicant’s child required a more fulsome, humane and analytical approach than was adopted by the Tribunal in the instant case.
[30] Each of which took place in June 2019
I accept the applicant’s submissions that it was incumbent on the Tribunal to consider whether the applicant’s son who, like in Perez (supra) at [121] was at an age at which all aspects of his mental, physical, social and educational well-being and development may have been enhanced by the presence or ready availability of a father. The delegate acknowledged as much within their findings that Australian courts generally consider that it is in the best interests of the child to remain with their family. The Tribunal, in departing therefrom denied the applicant procedural fairness and failed to properly consider the best interests of the child. An example of that includes that, despite the aforementioned acknowledgment by the delegate, the Tribunal found it to be a matter of moment that the applicant had advanced no evidence from a health practitioner to support the claims that the son would be affected, much less be traumatised, by the applicant’s absence. For example, the delegate’s observations about the integrity of the family unit, which to agree can be treated as common sense, would not have put the applicant on notice that absent evidence of a “health practitioner”, the applicant’s assertion about potential future trauma to the child would not be accepted. Nothing the Tribunal said to the applicant would have otherwise alerted him to the issue either. I am satisfied that this squarely illustrates the failure of Tribunal to identify the issue dispositive of the review to the applicant in respect of the best interests of the child.
It unremarkable to observe as a matter of common sense and human experience that children change, as do their relationships with their parents over time. There is room for considerable doubt that the approach contended for by the applicant as set out at [81] above was undertaken in the present case, particularly by reference to the lack of exploration of the issue by reason of the error established by ground 1, and which also constitutes a discrete error in respect of this ground.
For the same reasons as expressed at [74] to [79] above, I find this error to be material.
Ground 3
By his third ground, the applicant alleges the Tribunal made inconsistent or contradictory findings in respect of the “critical issue of hardship arising from the cancellation”. The ground is best characterised as being an allegation of legal unreasonableness.
The particulars to ground 3 take issue with the Tribunal’s findings that:
(a)it was not satisfied that any hardship would be caused to the applicant or his child as a result of the visa cancellation (CB 56 at [18]);
(b)it was is not satisfied that the applicant has, or has ever had, a meaningful relationship with his child and the Tribunal is not satisfied that hardship would result from the cancellation of the applicant's visa (CB 57 to 58 at [27]);
(c)if he is required to leave Australia as a result of the cancellation of the visa, this may cause hardship to the applicant and his family (CB 57 at [24]);
(d)some hardship may be caused by the cancellation to the applicant and his family and accepted that if the applicant was required to leave Australia, it would affect his ability to see his son in the future and possibly his relationship with the child (CB 60 at [42]); and
(e)some hardship would be caused by the cancellation because it may lead to the applicant’s separation from his child and brother and the brother’s family (CB 60 at [43).
The applicant contends that the findings which are set out at paragraphs [95(c)], [95(d)] and [95(e)] above contradict its findings which are set out at [95(a)] and [95(b)] above, as well as the Tribunal’s finding at [36] of the reasons for decision (CB 59) that the bests interests of the applicant’s son would not be adversely affected by cancellation of the visa.
The first respondent again submitted that a fair reading of the Tribunal’s decision reveals no such error as alleged by the third ground. Specifically, it was contended that the Tribunal’s conclusion at [42] (CB 60) that cancellation may cause some hardship to the applicant and his family is consistent with its finding at [24]. Further, the first respondent says that findings of the Tribunal at [25] and [27] (that it was not satisfied as to hardship were made in relation to the specific matters which are noted in those findings), and that they do not contradict the more general conclusions at [24] and [42]. Additionally, the first respondent contends that there is no inconsistency in the Tribunal’s observation that the applicant’s relationship to his son may be affected if he has to depart Australia ([42]), with the earlier conclusions that the son’s best interests would not be affected by cancellation.
It is well established that the reasons for decision should be read fairly and as a whole: see Plaintiff M64 of 2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [59] to [60] per French CJ, Bell, Keane and Gordon JJ, and the Court should not be concerned with mere looseness of language or unhappy phrasing: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
As a standalone ground, this ground verges on the borders of having the Court engage merits review. How the Tribunal balanced certain factors, including whether hardship which it accepted weighed against the interests of the child, was a matter for it. While there may be tension between those findings, they do not appear to be so contradictory as to necessary reach the level required to constitute illogicality or legal unreasonableness.
However, the findings themselves are, given the errors found in grounds 1 and 2, unsafe in circumstances where the applicant was not afforded a meaningful hearing and the findings the subject of ground 3 are directly affected by that lack of procedural fairness. Had the Tribunal afforded the applicant the opportunity to be heard on the very issue which underpins the findings set out at [95] above, those findings could realistically have been different, as would their relative assessment as factors in whether or not the applicant’s visa should be cancelled. Accordingly, while I am not satisfied the error alleged is necessarily present the Tribunal will no doubt revisit its findings on remittal as a matter of course.
CONCLUSION
For the foregoing reasons, the applicant has succeeded in establishing the errors alleged by grounds 1 and 2 and it is unnecessary in those circumstances to determine ground 3, noting also that ground 4 was abandoned. I am satisfied that the errors were material and therefore jurisdictional. Writs will issue accordingly.
I will hear the parties as to costs.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 March 2025
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