El Ossman v Minister for Immigration

[2017] FCCA 433

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL OSSMAN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 433

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to consider the best interests of the child as a primary consideration – whether the Administrative Appeals Tribunal erred in failing to consider the interest of the applicant’s child as an Australian citizen – whether the Administrative Appeals Tribunal failed to give proper, genuine and realistic consideration to the child’s best interest – whether the Administrative Appeals Tribunal failed to exercise its discretion under section 116(g) of the Migration Act 1958 (Cth) in a proper, genuine and realistic way – whether the Administrative Appeals Tribunal erred in failing to make an obvious inquiry about a critical fact – whether the Administrative Appeals Tribunal erred by failing to assess, investigate or determine the merits of or the reasons for the Adverse Security Assessment – no jurisdictional error – application dismissed.

Legislation:
Administrative Appeal Tribunal Act 1975 (Cth), s.43
Australian Security Intelligence Organisations Act 1979 (Cth), s.4
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 338, 357A, 359A, 359AA, 360, 375, 474
Migration Regulations 1994 (Cth), reg.2.43

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 321 ALR 592
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123

Applicant: MUSTAPHA EL OSSMAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1539 of 2016

Judgment of: Judge Emmett

Hearing date: 27 February 2017

Date of Last Submission: 27 February 2017

Delivered at: Sydney

Delivered on: 14 March 2017

REPRESENTATION

Counsel for the Applicant: Ms Jocelyn Williams

Solicitors for the Applicant: SBA Lawyers

Counsel for the Respondents: Mr Patrick Knowles

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1539 of 2016

MUSTAPHA EL OSSMAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 16 May 2016 (“the Tribunal”).

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. The applicant first arrived in Australia in 2011 to visit family members. He subsequently returned to Australia for another visit in 2013.

2. On 8 June 2013, the applicant was granted a Subclass 300 Prospective Marriage visa by the Department of Immigration and Citizenship (“the Department”).

3. On 22 June 2013, the applicant arrived in Australia on the prospective marriage visa.

4. On 4 July 2013, the applicant and his sponsor were married.

5. On 3 July 2014, the applicant applied for a partner visa and was granted a Subclass 050 (Bridging (General)) visa (the “bridging visa”) by the Department.

6. On 6 January 2015, the only child of the relationship was born.

7. On 28 August 2015, Australian Security Intelligence Organisation (“ASIO”) made an Adverse Security Assessment against the applicant.

8. On 4 September 2015, the Delegate cancelled the applicant’s bridging visa.

9. On 7 September 2015, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

10. On 16 May 2016, the Tribunal affirmed the decision of the Delegate to cancel the applicant’s bridging visa.

11. On 20 June 2016, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.116(1)(g) of the Act, the first respondent may cancel a visa if he was satisfied that a prescribed ground for cancelling the visa applies to an applicant.

2. Section 116(1)(g) is relevantly as follows:

   “Power to cancel

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:  

   …

   (g) a prescribed ground for cancelling a visa applies to the holder.

   …”

3. The prescribed grounds for cancellation of visa are set out in reg.2.43 of the Migration Regulations 1994 (Cth) (“the Regulations”), which relevantly states:

   “Grounds for cancellation of visa (Act, s 116)

   (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

   …

   (b) that the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979;

   …

   (q) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa--that:

   …

   (ii) the head of that agency has advised the Minister that the holder should not hold a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa;

   …

   …”

4. Under s.338 of the Act, a decision to cancel an applicant’s visa is a decision which may be reviewed by the second respondent.

5. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:

   “359A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   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.”

6. Section 359AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

7. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

8. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 4 September 2015, the applicant was invited to attend an interview with the Delegate.

2. At that interview, the applicant was given a Notice of Intention to Consider Cancellation of his bridging visa pursuant to reg.2.43(1)(q)(ii) of the Regulations. He was informed that ASIO had made an Adverse Security Assessment (“ASA”) against him. The applicant was given an opportunity to satisfy the Delegate as to why his visa should not be cancelled.

3. The Delegate found that, after weighing up all of the available information, the grounds for cancelling the visa outweighed the reasons for not cancelling. Accordingly, on 4 September 2015, the Delegate cancelled the applicant’s visa pursuant to s.116(1)(g) of the Act and reg.2.43(1)(q)(ii) of the Regulations.

The Tribunal’s review and decision

1. On 7 September 2015, the applicant lodged an application for review of the Delegate’s decision by the Administrative Appeals Tribunal.

2. On 16 September 2015, an Administrative Appeals Tribunal affirmed the decision of the Delegate. By consent, on 25 November 2015, that decision was remitted to the Administrative Appeals Tribunal for determination according to law.

3. On 23 December 2015, a differently constituted Administrative Appeals Tribunal affirmed the decision of the Delegate. By consent, on 14 April 2016, that decision was remitted to the Tribunal for determination according to law.

4. On 29 April 2016, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 4 May 2016 to give oral evidence and present arguments. That hearing was subsequently rescheduled to 11 May 2016.

5. On 11 May 2016, the applicant attended the Tribunal hearing and gave evidence as well as other witnesses and the applicant’s representative. The decision record is dealt with in detail below in considering the grounds of the Amended Application.

6. The Tribunal noted that the issue for it to consider was whether a ground for cancelling the applicant’s visa was made out, and, if so, whether the applicant’s visa should be cancelled. The Tribunal also noted that it was entitled to take into account the material provided by the applicant to the previous tribunals. The Tribunal further noted that it could consider cancelling the applicant’s visa on a different basis from the Delegate’s decision.

7. The Tribunal found that the prescribed ground for cancelling the applicant’s visa pursuant to s.116(1)(g) of the Act was contained in reg.2.43(1)(b) of the Regulations, as an ASIO assessment concluded that the applicant was a risk to the security of Australia.

8. The Tribunal then proceeded to consider whether it should exercise the discretion under s.116(1)(g) of the Act to cancel the applicant’s visa.

9. The Tribunal noted that although the applicant was unlawful for a period of time, it accepted the applicant’s explanations as to the circumstances that gave rise to the applicant’s unlawful status. The Tribunal further noted that there was no evidence suggesting that there was any adverse conduct towards the Department.

10. The Tribunal accepted that the cancellation of the applicant’s visa would have adverse effects on his family. The Tribunal further accepted that the applicant’s daughter’s interests were a primary consideration.

11. The Tribunal accepted that it would be preferable for the applicant’s daughter to have the applicant living in the family home. However, the Tribunal noted that the applicant’s daughter had regularly visited the applicant in detention with her mother. The Tribunal also noted that the applicant’s daughter seemed to be comfortable and happy in her father’s presence at the hearing. The Tribunal further noted that the applicant’s daughter seemed to be surrounded by a loving and caring extended family.

12. The Tribunal accepted that the applicant’s wife had suffered from financial and emotional hardship due to her husband’s detention. However, the Tribunal noted that she was supported by compassionate and caring relatives. Further, the Tribunal noted that her distress was partially attributed to the adverse security finding made by ASIO. The Tribunal noted that such assessment did not appear to be a matter which could be resolved in the short term, if at all.

13. The Tribunal also considered the consequence of the cancellation of the applicant’s visa. The Tribunal noted the applicant’s evidence that he sought judicial review of ASIO’s ASA. The Tribunal found that the applicant’s detention could be prolonged, but it rejected that the applicant’s detention would be indefinite. 

14. The Tribunal then considered the circumstances in which the ground for cancellation arose. The Tribunal noted the applicant’s evidence that his brother-in-law fabricated claims against him. The Tribunal further noted the redacted copy of the Briefing Note for the Director General (“the Briefing Note”) and the Truncated Statement of Grounds, which were provided to the applicant. The Tribunal noted the findings contained in the ASA, that the applicant is directly or indirectly a risk to security, were unequivocal. In the circumstances, the Tribunal noted that it did not require further information from the Department as to how the adverse security assessment was reached.

15. The Tribunal found that the risk to security, as set out in the Truncated Statement of Grounds, outweighed those factors which might indicate that the visa should not be cancelled.

16. After weighing all the factors, the Tribunal found that the applicant’s visa should be cancelled pursuant to s.116(1)(g) of the Act and reg.2.43(1)(b) of the Regulations.

17. Accordingly, on 16 May 2016, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Ms Jocelyn Williams, of counsel. 

2. By consent, the applicant was given leave to rely on the grounds of an Amended Application filed in Court at the commencement of the hearing.

3. Counsel for the applicant did not address each of the grounds sequentially either in written submissions or oral submissions. Rather, counsel for the applicant conceded that the grounds were various ways of identifying the following errors that the applicant contends were made by the Tribunal:

   “1. The Tribunal failed to take into account the best interest of the applicant’s child or at least determine what was in the best interests of the applicant’s child.

   2. The Tribunal failed to engage in the balancing exercise of weighing the matters in favour of cancelling the visa with those against the outcome.

   3. The Tribunal paid little more than lip service to the exercise of its discretion under s116 of the Act as it in effect considered itself it bound by the Australian Security Intelligence Organisation’s (“ASIO”) recommendation in the adverse security assessment to cancel the applicant’s visa.

   4. The Tribunal failed to make any or even the most basic enquiries with ASIO about the information behind the ASA, the ASIO briefing note and the truncated statement of grounds.

   5. These errors were said to reveal jurisdictional errors on the part of the Tribunal in that it failed to take into account relevant considerations, relied on irrelevant considerations and made a decision infected by illogicality and irrationality.

The best interests of the child

1. Counsel for the applicant submitted that whilst the Tribunal recognised that the best interests of the child are a primary consideration, that consideration was simply in passing. In particular, counsel for the applicant identified the failures of the Tribunal to consider the best interests of the child as follows:

   “The Tribunal did not acknowledge that the child is an Australian citizen. The Tribunal therefore failed to consider the child’s interest as an Australian citizen. In turn, the Tribunal failed to consider this material fact in determining what was in the best interests of the child.

   As discussed above, the Tribunal failed to make a finding as to whether the cancellation of the Visa would be in the best interests of the child. The Tribunal simply found that it would be “preferable” for the child to have her father at home (at [53] and see [109]). The Tribunal did not turn its mind to what would be in the child’s best interest, as required (at [109]). There was no evidence before the Tribunal which rationally permitted any finding other than that it was in the child’s best interest that her dad remain at home in Australia and the Visa not be cancelled.

   Further, the Tribunal did not genuinely or meaningfully consider the effects on the child as a result of the Visa being cancelled other than by recognising that the child would have the stress of having restricted contact with her father and seeing her father at the Detention Centre. The Tribunal did not consider the consequences of cancelling the Visa on the child in any meaningful way, such as considering the child’s growth and development, general wellbeing and the consequences of disruption to the family unit.

   The Tribunal took into account irrelevant considerations in balancing the interests of the child (generally), including the Tribunal’s opinion that the child appeared to be comfortable in the Applicant’s presence (at [55]). This appears to suggest that the Tribunal considered that the child was not being sufficiently disadvantaged by not having the Applicant living at home. There is no basis for making this opinion identified. This consideration, amongst others identified in the Decision, suggests that the Tribunal was concerned to identify, not what decision would be in the best interests of the children, but rather how the children's interests would be affected by a decision to refuse to grant their father a visa: see Wan at [27][28].”

2. Counsel for the applicant referred to the following cases in relation to the principles that should guide the Court in considering whether the Tribunal properly considered the best interests of the child. These were accurately summarised in her written submissions as follows:

   “21. To exercise the Tribunal’s discretion lawfully, the Tribunal needed to identify what was in the best interests of the child. The comments of Lee J in “W157/00A” v Minister for Immigration & Multicultural Affairs [2001] FCA 1536 are relevant here (at [81]):

   “The obligation to consider the best interests of the children, therefore, was significant not only because of the acknowledgment of the Minister that procedurally it was a primary consideration, but, because in this case, the children as Australian citizens were entitled to expect that not only would their interests as children be assessed as a primary concern but also their interests as Australian citizens would be considered in conjunction. (See: Vaitaiki v Minister for Immigration and Multicultural Affairs [1998] 150 ALR 608 per Burchett J at 614; Minister for Immigration and Multicultural Affairs v Teoh [1995] 183 CLR 273 per Gaudron J at 304-305).”

   22. And in Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568 the Court recognised that the Tribunal was, in exercising a discretion to cancel a visa under s 501 of the Act (at [32]):

   “required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.” [emphasis added]

   23. The relevance of whether the child is an Australian citizen was again emphasised in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608, as discussed in Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568 (at [23][24]):

   “In Vaitaiki, Burchett J pointed out (at 618) that the question which the Tribunal was required to answer was what the best interest of the children required it to decide with respect to the proposed deportation of their father, not what the children should do given that their father would be deported. In that regard, his Honour considered that the failure of the Tribunal to advert to the status of the children as Australian citizens was of considerable significance. With respect to the Tribunal's initial reasons for decision, his Honour (at 614) said:

   “The fact that the children's citizenship was not mentioned does not necessarily mean that their best interests were not treated as a primary consideration .... But it does mean, when one looks at the context of the reasons, that a most relevant aspect of the children's position received no consideration. And when neither the Convention nor the children's citizenship is mentioned, and after a lengthy discussion of other considerations the situation of the younger three children is dismissed with the almost perfunctory curtness I have quoted, the conclusion must be that their interests were not treated as a primary consideration.” [Emphasis added]

   24. Whilst the Tribunal in its Decision recognised that the interests of the child are a primary consideration (at p 8), that consideration was simply in passing. The position is therefore analogous to that found by Branson J in Vaitiki (at 631):

   “I conclude, in broad agreement with Burchett J, that although the AAT purported to act on the basis that the best interests of the appellant's children were a primary consideration before it, it did not in fact give proper, genuine and realistic consideration to the children's best interests: Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 414; 121 ALR 436 per Black CJ; Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 per Toohey J; Flentjar v Repatriation Commission (Fed C of A, Full Court, 10 October 1997, unreported) at 5.” [Emphasis added]

   25. Importantly, the Tribunal in its Decision makes no finding as to what is in the best interests of the child as required. In this regard, the Court in Wan commented critically (at [26]):

   “Of particular significance is the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa. That this is the starting point for the Tribunal's consideration follows from Teoh and from Vaitaiki. The Tribunal did not refer to either of these cases.” [Emphasis added]

   26. And at [32], the Court explained that this “starting point” was necessary for the Tribunal to properly undertake any discretionary balancing exercise, as follows:

   “was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.”

1. Further, counsel for the applicant submitted that s.43(2B) of the Administrative Appeal Tribunal Act 1975 (Cth) (“the AAT Act”) required the Tribunal to include in its written reasons for decision “its findings on materials questions of fact and a reference to the evidence or other material on which those finds were based.” Counsel for the applicant submitted that it was not open to the Court to conclude that the Tribunal impliedly found that the best interests of the child indicated that her father’s visa should not be cancelled because to do so would be to conclude that the Tribunal failed to comply with the obligations imposed on it by s.43(2B) of the AAT Act.

2. However, a fair reading of the Tribunal’s decision record as a whole does not support the contentions made by the applicant in relation to the Tribunal’s consideration of the best interests of the child.

3. The Tribunal commenced its statement of decision and reasons with a summary of the procedural history of the matter. In particular, the Tribunal recited the applicant’s personal history, his marriage to an Australian citizen and the birth of his daughter in Australia. The Tribunal noted that the applicant had applied for a partner visa on 4 July 2014 and had been interviewed by ASIO officers on 22 October 2014, resulting in an ASA made on 28 August 2015. The Tribunal noted that the applicant was invited to an interview with officers of the Department on 4 September 2015 and when he arrived at the interview he was given a Notice of Intention to Consider Cancellation Form 1099 in respect of his bridging visa. Following the interview, the Delegate cancelled the applicant’s visa and he has remained in detention at Villawood Immigration Detention Centre since that date.

4. The Tribunal noted that on 7 September 2015 the applicant applied for review of the cancellation and provided a number of documents and written submissions. A hearing by a differently constituted tribunal was held on 14 September 2015 and evidence was taken from the applicant and three witnesses. While that tribunal affirmed the Delegate’s decision, this Tribunal noted that decision was quashed by the Federal Circuit Court of Australia, by consent, on the basis that the tribunal had not treated the best interests of the child as a primary consideration. The matter was remitted to the Administrative Appeals Tribunal for determination according to law.

5. The Tribunal then noted that a second tribunal hearing took place to which the applicant had provided further documents and submissions. Whilst that decision also affirmed the decision under review, again, that tribunal’s decision was set aside and the matter remitted by consent because some identified information was not provided to the applicant, thereby denying him procedural fairness.

6. The Tribunal then noted that, before it, the applicant gave some of the documents already provided to the earlier tribunals together with updated submissions and copies of an unclassified Briefing Note concerning the ASA for the applicant, dated 28 August 2015, and a Truncated Statement of Grounds.

7. The Tribunal noted that the Briefing Note and the Truncated Statement of Grounds were given to the applicant on 22 March 2016 and had not been available at the time the earlier tribunal decisions were made.

8. The Tribunal then considered what information could be considered by it upon remittal. The Tribunal noted that under the AAT Act the Tribunal may have regard to any record of the proceeding as previously constituted, including any record of evidence; and, must determine the review by dealing with the issues as they present themselves at the time of determination according to the facts as the Tribunal finds them to be at that time.

9. The Tribunal then noted that in conducting its review it had considered the material provided to the first two tribunals and the oral evidence given at those tribunal hearings.

10. The Tribunal then considered whether it could consider cancellation on a different basis from that considered by the Delegate’s decision and determined that it was not limited to the particular issues considered by the Delegate.

11. The Tribunal then found that the applicable ground for cancellation was reg.2.43(1)(b) of the Regulations and that the applicant had been made aware of that prescribed ground. The Tribunal then referred to the hearing before it on 11 May 2016 where it gave information, being the ASA, to the applicant pursuant to s.359AA of the Act.

12. The Tribunal noted that it explained that the ASA provided by the Director General of ASIO on 28 August 2015 referred to him by name and that it was made pursuant to the Australian Security Intelligence Organisations Act 1979 (Cth) (“the ASIO Act”). The Tribunal told the applicant that the ASA stated that the applicant was directly or indirectly a risk to security and that it would not be consistent with the requirements of security for the applicant to continue to hold a bridging visa. The Tribunal told the applicant that ASIO recommended that the applicant’s bridging visa be cancelled and that this information was relevant because the existence of the assessment by ASIO was one of the prescribed grounds for the cancellation of his bridging visa.

13. The Tribunal noted that the applicant responded that he disputed the findings made in the ASIO assessment and that he had instructed a challenge to the validity of the ASA by the Federal Court of Australia.

14. The Tribunal accepted that the applicant does not agree with the findings or recommendations in the ASA, however, found that the applicant did not dispute the existence of the ASA or that it refers to the applicant. Accordingly, the Tribunal found that the applicant had been assessed by ASIO to be directly or indirectly a risk to security within the meaning of s.4 of the ASIO Act; and as a result, the Tribunal was satisfied that the ground for cancellation in s.116(1)(g) of the Act exists.

15. The Tribunal noted that that ground does not require mandatory cancellation and that the Tribunal must proceed to consider whether the power to cancel the visa should be exercised. The Tribunal noted that there are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, the Tribunal noted that in the course of its consideration it had regard to matters identified in the Department’s Procedure Advice Manual PAM3 General Visa Cancellation Powers.

16. In considering the hardship cancellation would cause, the Tribunal received the evidence from the applicant, the applicant’s wife and the applicant’s brother-in-law.

17. The Tribunal accepted that the cancellation may affect the applicant’s daughter and that her interests are a primary consideration. The Tribunal noted the applicant’s submission that it is not in the best interests of his child that he remains in detention; that separation from his daughter is distressing to her and damaging to their parent-child relationship; that he could not provide much needed support for his wife who is now the sole carer and bread winner for the family; that his wife has to travel long periods each day to visit the applicant in the detention centre and this is not in the best interests of their child; that the detention centre is an unpleasant place for a young child to spend any period time; that the applicant is being held in the maximum security area in the detention centre, although he has made requests for a move to a more pleasant and private section of the detention centre. The Tribunal noted that to date he remains in maximum security.

18. The Tribunal noted the applicant’s wife’s evidence that the daughter has nightmares and often wakes screaming and that the wife is not sure whether the child understands that the applicant is her father. The Tribunal noted the applicant’s submission that it would be in the best interests of his child if he was living at home with his wife and child whilst awaiting the finalisation of his partner visa application and his intended challenge to the validity of the ASA.

19. The Tribunal accepted that it would preferable for the child for the applicant to be living in the family home rather than being held in detention as the child would have greater personal contact with the applicant in a less stressful environment. The Tribunal also accepted that regularly visiting the detention centre may be difficult for the applicant’s wife and that this may have an adverse impact on the child. The Tribunal also accepted that the family income had been reduced since the applicant’s detention.

20. However, the Tribunal also found that the applicant’s wife and his sister regularly visited the detention centre with the child and that the child has been able to keep up regular contact with the applicant in spite of the difficulties for the family. The Tribunal noted that whilst contact between the applicant and his daughter takes place in a restricted environment, nevertheless, the applicant has continued to have parental contact with his daughter. Moreover the Tribunal observed that the child was comfortable in her father’s presence and seemed happy and relaxed. The Tribunal noted that the applicant’s wife, brother-in-law, mother and sister all contributed to the care and amusement of the child during the Tribunal hearing in an appropriate and caring manner and that the family bonds appeared strong.

21. The Tribunal then noted the particular circumstances of the applicant’s wife and the difficulty she faces with the applicant in detention. The Tribunal noted that the applicant’s wife has left a teaching position but continues to operate her home-based family day care business and visits her husband each day in the detention centre and cares for their child.

22. The Tribunal accepted the applicant’s wife’s psychologist’s report dated 12 September 2015 in relation to her increased levels of trauma, depression, panic, stress and anxiety due to the applicant’s visa cancellation and detention. In particular, the Tribunal found that part of the stress related to the impact of the ASA and that, if valid, the ASA would result either in separation from the applicant if he is removed from Australia or joining him to live outside of Australia, which she had stated she would not do.

23. The Tribunal referred to the applicant’s wife’s evidence of the burden of caring for her daughter on her own. However, whilst accepting that the applicant’s assistance would be substantial if he was living at home, the Tribunal found the applicant’s wife has other family members to call on for assistance, including her mother-in-law who is presently staying with her, her parents and the applicant’s sister. The Tribunal noted the applicant’s wife’s brother gave evidence that he had delayed moving to rural New South Wales to provide support for the applicant and his sister. The Tribunal concluded that the applicant’s wife is strongly supported by a number of compassionate and caring relatives.

24. The Tribunal also referred to the applicant’s evidence of the hardship that he was suffering due to his detention, including depression and worry about the impact of his detention on his wife and child as well as his own welfare, particularly in the maximum security section.

25. The Tribunal then considered in detail the consequences of cancellation. The Tribunal accepted the Department’s submissions that indefinite detention was not a possible consequence of the cancellation. However, once all legal and administrative processes are finalised, the applicant’s detention would cease when he would be removed from Australia. The Tribunal also noted that it was possible that the applicant may be released if his application to the Federal Court of Australia was successful and he obtained the substantive partner visa for which he was applying. However, the Tribunal noted that it could not assess the prospects of success of the applicant’s application to the Federal Court of Australia. In the circumstances, the Tribunal found that the applicant’s detention could be prolonged but accepted that there was no current prospect that it would be indefinite.

26. The Tribunal then gave detailed consideration to the circumstances in which the ground for cancellation arose. The Tribunal noted that the applicant had a dispute with his brother-in-law as a result of a family violence incident with his sister. It was following this incident that the applicant and the Department became aware that he was unlawfully in Australia, as a result of which he lodged an application for a partner visa and was granted a bridging visa and later given permission to work. However, he was later interviewed by ASIO and his bridging visa cancelled. The Tribunal noted the applicant’s evidence to the first two tribunals that he was not aware of any activities or facts which would justify the basis of the ASA and at the time of the first two hearings he had not received any reasons which formed the basis of the ASA. The Tribunal noted the applicant’s evidence that ASIO officers asked him questions about the Syrian revolution, his opinions about the revolution and armed groups. The Tribunal noted the applicant’s evidence that he told the ASIO officers that he knew nothing about the Islamic State of Iraq and Syria other than what he heard in the news and that he had no idea why ASIO had given him a negative assessment, and he stated that he is not a threat to Australia.

27. Following the interview with ASIO, the Tribunal noted that the applicant said he heard nothing further until a year later when he was asked to attend another interview with the Department which he did on 4 September 2015. The Tribunal noted that the applicant stated he believed that interview related to his partner visa application, but when he arrived he was told that ASIO advised that his visa should be cancelled and the Department officers then asked him why his visa should not be cancelled. The Tribunal noted that Notice of Intention to Consider Cancellation and decision dated 4 September 2015 set out the reasons that the applicant gave for not cancelling the visa. Nevertheless the visa was cancelled on that date.

28. The Tribunal then noted the applicant’s submissions that referred to the reasons for the ASA received by him in March 2016 and submitted that ASIO did not interview his family members or close friends and that he assumed ASIO had relied on a narrow scope of sources without verification. The Tribunal noted the applicant’s submission that ASIO may have been misled as to his views and involvement in activities related to politically motivated violence.

29. The Tribunal noted that the applicant and his wife appeared to be highly aggrieved by the circumstances in which the ASA arose. The Tribunal noted that the applicant had received security clearances in two past visits to Australia and that he now faced separation from his wife and child as a result of the ASA, which he claimed is inaccurate. The Tribunal noted references provided by the applicant stating that they had found the applicant to be a person of “good character, high integrity and exceptional morals, a kind and caring friend and loving husband and father.”

30. The Tribunal noted the applicant’s and his wife’s submission that he had been interview by ASIO in October 2014 but that the assessment was not made until August 2015 and his visa not cancelled until September 2015. The Tribunal noted their submission that this suggested that he was not much of a security risk. The Tribunal also referred to their evidence that the Department’s invitation for an interview had given him the option of when he wanted to attend which suggested it did not appear to be very urgent.

31. The Tribunal noted the applicant’s suggestion that ASIO’s interest may have arisen following the dispute involving his sister’s husband who had made false accusations against him and that he otherwise did not know the basis of the ASA; and that the questioning by ASIO concerned his political opinions and individuals he knew in Tripoli.

32. The Tribunal then set out the ASA conclusions which it discussed with the applicant:

    “• He has been involved in politically motivated violence or acts in support of politically motivated violence.

    • That he maintains associations with extremist individuals involved in activities prejudicial to security.

    • That he harbours an extremist ideology and support for politically motivated violence or acts in support of politically motivated acts of violence .

    • That he presents an avoidable risk to Australian security that would be substantially mitigated by the cancellation of his Australian visa and refusal of his visa application.”

33. The Tribunal noted that the ASA included information derived from ASIO analytical and security assessment interview reporting, the Department and other redacted sources. The Tribunal concluded that the ASA was based on a substantial body of intelligence.

34. In particular, the Tribunal referred to extracts of the Truncated Statement of Grounds (with redactions) as follows:

    “91. As discussed with the applicant, the assessment concluded that, based on available intelligence, the applicant “has persistently and intentionally lied about his [ ... ] extremist activities and associations”. The applicant's “statements denouncing extremism and terrorism, denying any awareness of extremist or terrorist activities, and denying any awareness of extremist or terrorist activities and denying any associations of security relevance have been directly contradicted by [ ... ] reporting. In this regard ASIO assess Mr El Ossman has engaged in an intentional strategy directed at deflecting Australian government attention from these issues and avoiding prejudicing his Australian migration status".

    92. In its conclusion the assessment noted it had carefully weighed the potential personal and family implications of the assessment such as possible separation from his family in Australia. However, it considered that the need to mitigate the risk the applicant poses to national security far outweighed the personal consequences for the applicant and his family. It concluded that the cancellation of the visa was appropriate and proportionate to the security risk.”

35. The Tribunal noted the applicant agreed that on the face of it, the ASA contained findings about his actions, involvement with extremists and extremist ideology which were serious. However the Tribunal also noted the applicant’s statement that the ASA was not accurate and that he rejected its findings. The Tribunal also noted the applicant’s submission that ASIO had disclosed the sources of the information they had used and therefore he could not properly respond to the findings without understanding the basis of the assessment.

36. The Tribunal also noted that the applicant’s wife complained about the adequacy of interpreting at the ASIO interview and her assertion that the ASA was based on flawed interpreting. However, the Tribunal found that ASA was not based solely on the interview held in October 2014, although the sources of information or the nature of intelligence provided to ASIO was not disclosed. However, the Tribunal found that it was clear that ASIO had used a number of undisclosed sources and available intelligence to arrive at its conclusion.

37. The Tribunal then identified with particularity the denials made by the applicant of the matters referred to in the ASA. However, the Tribunal noted that the ASA concluded that available intelligence showed that the applicant’s claims of denial are untrue and that he was involved in politically motivated violence and other acts in support of politically motivated violence. The Tribunal referred in similar detail to the other ASA allegations, the applicant’s denials and the ASA conclusions that intelligence reporting, based on a number of undisclosed sources, showed that the applicant’s statements were untrue.

38. The Tribunal noted the applicant’s submission that it should seek further information regarding the classified materials in the ASA. The Tribunal also referred to the applicant’s representative’s submission that the Tribunal does not have a general duty to inquire but that a failure to make an obvious inquiry about a critical fact, the existence of which could supply a link to the outcome, could constitute a failure to review.

1. The Tribunal then noted that the Department has the power under s.375 of the Act to prevent the disclosure of documents to the Tribunal if it would be contrary to the public interest because it would prejudice the security, defence or international relations of Australia. It also noted the power to provide documents to the Tribunal with the direction that the information may only be disclosed to the Tribunal and that it was a matter for the Department as to how they would deal with classified material if requested by the Tribunal.

2. The Tribunal then considered the redacted information in the reasons for the ASA and found them not to be a significant or relevant factor in the consideration of the cancellation of the bridging visa because “whatever the sources may be, the Tribunal considers they will not qualify or alter the strongly worded conclusions of the assessment.” The Tribunal noted ASIO’s conclusion that it had serious concerns about the applicant’s previous conduct, his associations and his views based on various sources and intelligence reporting. The Tribunal noted this is a conclusion which ASIO is entitled to make in accordance with its powers under the ASIO Act and that it is not the role of the Tribunal in the application before it to go behind or question the basis of the ASA.

3. It was in those circumstances that the Tribunal determined not to seek the classified material because the disclosure of that material to the Tribunal would not alter the conclusions of the ASA which found the applicant to be a security risk. The Tribunal found that ASIO’s sources were not a critical fact the existence of which would supply a link to the outcome of the Tribunal’s decision in relation to the cancellation.

4. The Tribunal also noted the applicant’s submission that whilst he was interviewed in October 2014, the matters assessed by ASIO were based on a report made in December 2014, yet his visa was not cancelled until September 2015, thereby suggesting he is not an immediate risk to security. However, the Tribunal found that whilst the reasons for ASA do refer to an ASIO report dated 5 December 2014, there is no suggestion that the conclusions in the ASA are based solely on that report. The Tribunal noted that references to the December 2014 report appear to the references to answers given in the applicant’s ASIO interview and not to the sources of the information and intelligence that they have used to eventually contradict the information given by the applicant.

5. Ultimately, the Tribunal found the ASA to be unequivocal in its conclusion that the applicant is directly or indirectly a risk to security within the meaning of the ASIO Act. Further, the Tribunal found that the ASA was based on a number of undisclosed sources and intelligence reporting which suggested that neither the ASIO interview nor the applicant’s dispute with the brother-in-law were significant factors in the formulation of the conclusions in the ASA.

6. The Tribunal then gave detailed consideration to the adverse impact that it found the cancellation of the visa would cause the applicant, his wife and their child.

7. The Tribunal stated that it had “carefully considered all the factors relevant to whether the bridging visa should be cancelled and that it treated the best interests of the applicant’s daughter as a primary consideration.” The Tribunal accepted that the cancellation would have a significant impact on the daughter both directly and indirectly. The Tribunal found that directly the applicant’s daughter would have restricted contact with the applicant, spend long periods of time travelling to visit the applicant, and have contact with the applicant in unpleasant surroundings at the detention centre. Indirectly, the Tribunal found the effect of the cancellation on the applicant’s wife who has to care for their daughter without the applicant and that she was deeply distressed due to both the cancellation of the applicant’s visa and the ASA.

8. However, the Tribunal also noted that based on the evidence before it, the applicant’s wife and family have ensured that the applicant’s daughter visits her father regularly and that there has been no breakdown in the contact between father and daughter. The Tribunal found that such regular contact with his daughter would continue whilst the applicant is in detention.

9. The Tribunal accepted entirely the applicant’s wife’s distress and noted her evidence that their marriage was happy and that she loves the applicant whom she describes as a gentle, caring and responsible husband and father. The Tribunal also noted her evidence that if the applicant was removed from Australia, she would not join him in Lebanon and this caused her significant distress. However, on the other hand, the Tribunal referred to her extremely supportive family and that she is well educated, articulate and able to earn an income through teaching, child care and tutoring.

10. The Tribunal accepted the applicant’s difficulties in remaining in detention from his own personal point of view and also the financial impact it has had on his family. The Tribunal referred to the evidence of various family members of those impacts on both the applicant and his wife.

11. Ultimately, the Tribunal concluded that whilst it accepted that the cancellation of the visa would have a significantly damaging effect on the applicant, his wife, his daughter and his sister, the ASA was unequivocal that the applicant is directly or indirectly a risk to security within the meaning of s.4 of the ASIO Act for the reasons set out in the Truncated Reasons, which indicated that on balance, the bridging visa should be cancelled. The Tribunal found that the risk to security outweighed the other factors which might indicate that the visa should not be cancelled. The Tribunal’s conclusion was set out as follows:

    “118. The Tribunal accepts that the cancellation of the bridging visa will have a significantly damaging effect on the applicant, his wife, his daughter and his sister as set out in findings above. However, whilst not diminishing the importance of these factors. The Tribunal considers the unequivocal assessment of ASIO that the applicant is directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 for the reasons set out in the Truncated Reasons for the Adverse Assessment indicates that on balance the bridging visa should be cancelled. The Tribunal considers that the risk to security, as set out in the Truncated Reasons for the Assessment, outweighs those other factors set out above which might indicate that the visa should not be cancelled.

    119. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.”

12. The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record as a whole makes clear that the Tribunal did consider the best interests of the child and readily recognised that they were of primary consideration. The Tribunal acknowledged that the first tribunal hearing had been set aside because there had been no such consideration of the best interests of the child. The Tribunal clearly accepted that it was in the best interests of the child for the applicant to live at home with her. However, in conducting the mandatory balancing exercise, the Tribunal found that that factor, together with the other hardship which would result for the applicant and his wife, did not outweigh the risk to security as set out in the Truncated Reasons for the ASA.

13. As is clear from the summary above of the Tribunal’s reasons, the Tribunal did give genuine and meaningful consideration to the effects on the child if the applicant’s visa was cancelled. The Tribunal noted that it was the applicant’s wife’s intention not to move to Lebanon, if the applicant was ultimately removed from Australia. I find that the Tribunal’s observation of the comfort that the child had in the applicant’s presence, was no more than a passing observation supportive of the applicant’s wife and extended family’s evidence of the good relationship that the applicant has with his daughter. I do not accept that it was intended to suggest that the Tribunal considered that the child was being sufficiently disadvantaged by not having the applicant at home.

14. In relation to the applicant’s assertion that the Tribunal did not acknowledge that the child is an Australian citizen and therefore fell foul of the principles referred to in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 (“Vaitaiki”), I accept the submissions of counsel for the first respondent that the criticism in Vaitaiki was based on a comprehensive lack of consideration of the best interests of the child in that case. In the case before this Court, the best interests of the child have been given thoughtful and detailed consideration.

15. It is clear from the Tribunal’s reasons that it was aware that the applicant’s wife was an Australia citizen and that the child was born in Australia. In such circumstances, in the context of the Tribunal’s recognition that the best interests of the child were a primary consideration and the manner in which the Tribunal considered those interests, I am not persuaded that the failure of the Tribunal to refer expressly to the child’s citizenship demonstrated a jurisdictional error of the type referred to in Vaitaiki.

16. In the circumstances, it was not necessary for the Tribunal to make an express finding about the child’s citizenship.

17. To the extent that the applicant suggests that he was denied procedural fairness as a result of the Tribunal’s failure to put the applicant on notice that the Tribunal intended to make a finding that was other than in the best interests of the child, the applicant’s complaint is not made out. In its summary of the procedural history, the Tribunal made clear that it understood that the first tribunal’s decision was quashed because of that tribunal’s failure to consider the best interests of the child to which the Tribunal referred. Further, the applicant made written submissions specifically addressing the best interests of the child.

18. I accept the submission of the first respondent that the Tribunal was not required to disclose to the applicant its preliminary conclusion in order that the applicant have a further opportunity to address the issue of the best interests of the child. The Tribunal was required to allow the applicant an opportunity to address that issue, which he and his witnesses plainly did (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, at [48] per Gleeson CJ, Kirby, Hayne, Callinan, and Heydon JJ).

19. Accordingly, the applicant’s complaints about the Tribunal’s findings in relation to the best interests of the child are not made out.

Error in the balancing act required under s 116 of the Act

1. Counsel for the applicant submitted that the Tribunal did not engage in the proper balancing exercise required under s 116(g) of the Act. Counsel for the applicant submitted that in considering the ASA, the Tribunal did not recognise that the ASIO recommendation was not mandatory or that ASIO was not required to consider the interests of the child in determining its recommendation in the ASA. Further, counsel for the applicant submitted that it was not possible to consider whether the ASA outweighed other considerations as found by the Tribunal because those considerations were not identified with sufficient particularity. Counsel for the applicant also submitted that the Tribunal had failed to consider imposing any conditions on the visa that may have been available in the circumstance which may have been appropriate if it had determined what was in the best interests of the child. In further written submissions, counsel for the applicant submitted that if the Court was to find that the Tribunal did determine what was in the best interests of the applicant’s child, then it was not in a position to balance that matter against the ASA in circumstances where it was not in a position to assess for itself what weight it could place on the ASA and the underlying material.

2. At the heart of the applicant’s submissions in support of this ground and its particulars is the Tribunal’s summary of its conclusions at paragraph 118 referred to above in these reasons at paragraph 95.

3. The Tribunal’s conclusions are based on a comprehensive weighing up of all the factors relevant to the hardship suffered by the applicant and his family in the context of its conclusion that cancellation of the visa was not in the best interests of the applicant’s child, his wife or the applicant himself.

4. However, the applicant’s submissions oversimplify the complex balancing exercise that the Tribunal undertook which is disclosed in a fair and comprehensive reading and analysis of its decision record. The Tribunal started with the recognition that reg.2.43(1)(b) of the Regulations provided the ground for cancellation where the applicant had been assessed by ASIO to be directly or indirectly a risk to security within the meaning of s.4 of the ASIO Act. The Tribunal noted that it went through the ASA findings with the applicant in some detail and noted his denials and rejection of its conclusions.

5. However, the Tribunal specifically noted that the applicant did not dispute the existence of the ASA and that it referred to him.

6. The Tribunal noted the particular conclusions of the ASA, which are referred to above and found that they were based on a substantial body of intelligence. The Tribunal noted the applicant’s evidence that they were based only on his brother-in-law’s false allegations and a report prepared some nine months prior to his cancellation. The Tribunal considered that submission and referred to its discussion with the applicant of the ASA conclusions.

7. The Tribunal found that the ASA was not based solely on the interview with the applicant in October 2014, or a report that it produced in December 2014, or the allegations of the brother-in-law. Rather, the Tribunal found that whilst it had not disclosed the sources of information or the nature of the intelligence provided on the applicant, it was clear that ASIO used a number of undisclosed sources and available intelligence to arrive at its conclusions.

8. As stated above, those findings and conclusions were open to the Tribunal on the evidence and material before it and for the reasons it gave.

9. Having carefully considered the ASA, the Tribunal turned its mind to other relevant considerations such as the best interests of the child in determining whether the cancellation should be affirmed. There is nothing in the Tribunal’s reasons to suggest that it was of the view that the Tribunal was required to cancel the applicant’s visa because of the ASA. Quite to the contrary, the detailed summary of the Tribunal’s reasons above shows the careful and thoughtful consideration it gave to all the factors that were relevant to the applicant in considering whether the cancellation should be affirmed.

10. I reject the applicant’s submission that the Tribunal’s decision otherwise paid no more than lip service to the purported balancing act required under the Act. A fair reading of the Tribunal’s decision record makes clear that it was well aware of what it found to be the best interests of the child, the applicant and his wife and ultimately concluded that in balancing those factors against the national security interests, those factors did not outweigh that consideration.

11. Accordingly, the applicant’s complaints in relation to the Tribunal’s “balancing act” are not made out.

Error in a failure to inquire of ASIO

1. The applicant submitted that the Tribunal was under a duty to inquire of ASIO about the information on which the ASA was based together with the briefing note and Truncated Statement of Grounds.

2. Counsel for the first respondent referred to the relevant principles set out by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration v SZIAI (2009) 83 ALJR 1123 at [25] as follows:

   “It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.”

3. The inquiry proposed by the applicant was not an inquiry about a critical fact. Rather, it demanded a broad inquiry into the reliability of the ASA. The Tribunal was not in the same position as ASIO and was not required to second guess the assessment given. Clearly, any such inquiry was not in relation to facts that were easily obtained. Moreover, there is obvious sensitivity of the sources of intelligence information as well as the expressed restrictions on the disclosure in the ASIO Act.

4. The applicant was well aware of the conclusion of the ASIO report and the Truncated Statement of Grounds for the ASA and the Briefing Note concerning the ASA, albeit redacted. The specific concerns expressed by the ASA were given to the applicant and were set out in the Tribunal’s decision record and quoted by it. The Tribunal made a specific finding that ASIO had used as number of undisclosed sources and available intelligence to arrive at its conclusions and found that ASIO had not restricted its sources as submitted by the applicant.

5. The Tribunal was aware of and noted the applicant’s submissions that the Tribunal should seek further information regarding the classified material in the ASA. The Tribunal noted that the redacted information may be of importance in any challenge to the validity of the ASA before the Federal Court of Australia. However, whatever the sources may be, they would not qualify or alter the ASA’s unequivocal conclusion that the applicant posed a security risk.

6. In the circumstances, the Tribunal did not fall into jurisdictional error by not seeking to obtain further information about the sources that gave rise to the ASA.

Conclusion

1. A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the nature of the application before it and the matters that it was required to consider. In particular, the Tribunal recognised that the interests of the child were a primary consideration. The Tribunal considered those interests and heard evidence from the applicant, the applicant’s wife and other members of the applicant’s extended family on that issue.

2. The Tribunal considered in detail the applicant’s submissions in relation to the unreliability of the ASA and noted that those were matters ultimately for the proceeding before the Federal Court of Australia where that ASA was being challenged.

3. The Tribunal found that once faced with an assessment from ASIO, as prepared under s.4 of the ASIO Act, a prescribed circumstance existed for the cancellation of the applicant’s bridging visa.

4. Once the applicant agreed that the ASA was in fact about him, then all the Tribunal could do was assess the conclusions in the ASA which it found to be unequivocal in the expressed risk to national security, and which it found to outweigh the other factors of hardship and damage to the applicant, his wife, his daughter and other extended family members which may otherwise have indicated that the visa not be cancelled.

5. As stated above, the Tribunal made findings based on the evidence and material before it which were open to it for the reasons given. A fair reading of the Tribunal’s decision record as a whole makes clear that the Tribunal reached conclusions based on the findings it made and to which it applied the correct law.

6. The Tribunal did not fail to take into account the best interests of the child and determined what was in the best interests of the child.

1. The Tribunal engaged in a balancing exercise of weighing the matters in favour of the cancellation with those against cancellation.

2. The Tribunal did not pay only lip-service to the exercise of its discretion under s.116 of the Act.

3. The Tribunal did not regard itself as bound by the ASIO recommendation in the ASA.

4. The Tribunal was not obliged to make any inquiry with the ASIO about the information behind the ASA, the Briefing Note and the Truncated Statement of Grounds in circumstances where it had found the conclusions unequivocal, in that they would not make any difference to such inquiry.

5. In summary, the Tribunal did not fail to take into account relevant consideration, rely on irrelevant consideration or make a decision infected by illogicality and irrationality.

6. Accordingly, none of the complaints in the Amended Application are made out as characterised in the written and oral submissions prepared and made by counsel for the applicant.

7. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly pursuant to s 474 of the Act this Court has no power to interfere.

8. The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  14 March 2017