Hadero v Minister for Home Affairs
[2018] FCCA 3234
•9 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HADERO v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3234 |
| Catchwords: MIGRATION – Partner (Temporary) (Class UK) (Subclass 820) visa – decision made by delegate under s.116(1)(e)(ii) of the Migration Act 1958 (Cth) to cancel visa – application for judicial review of decision of Administrative Appeals Tribunal to affirm the cancellation – whether the Tribunal overlooked or failed to consider evidence – whether Tribunal denied applicant procedural fairness – child’s interest as a primary consideration – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.43(2B) |
| Cases cited: AMF17 v Minister for Immigration & Anor [2018] FCCA 1848 |
| Applicant: | ROBEL MATHEWOS HADERO |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 2 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 9 August 2018 |
| Date of Last Submission: | 9 August 2018 |
| Delivered at: | Perth |
| Delivered on: | 9 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr H. Glenister |
| Solicitors for the Applicant: | Morris Alexander Nelson |
| Counsel for the Respondents: | Ms S. Oliver |
| Solicitors for the Respondents: | Sparke Helmore |
| The Second Respondent: | Submitted appearance save as to costs |
ORDERS
The applicant’s originating application filed on 2 January 2018 and amended on 27 July 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 2 of 2018
| ROBEL MATHEWOS HADERO |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Section 116(1)(e)(ii) of the Migration Act 1958 (the “Act”) allows the Minister to cancel a visa if he is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.
By application filed on 2 January 2018 and amended on 27 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “AAT”) dated 28 November 2017, which affirmed a decision of a delegate of the First Respondent to cancel the applicant's Partner (Temporary) (Class UK) (Subclass 820) visa (“the visa”) under s.116 of the Act. Both the delegate and the AAT concluded that the applicant posed a threat to his wife and his biological child.
To succeed before this Court, the applicant must demonstrate that the AAT fell into jurisdictional error.
The applicant’s amended application contains 2 grounds of judicial review:
1.The Administrative Appeals Tribunal fell into jurisdictional error by overlooking or failing to consider evidence that, firstly, the VRO issued against the applicant was interim rather than final, and, secondly, that the applicant had objected to the VRO against him and that objection had not been judicially considered.
2.The Administrative Appeals Tribunal fell into jurisdictional error by denying the applicant procedural fairness by breaching his legitimate expectation that the best interests of his child would be given primary consideration in deciding whether to cancel his visa.
Background
Having reviewed all of the material before it, including a Court Book (“CB”) spanning 193 pages, the Court adopts the procedural and factual background to these proceedings outlined by the applicant at paragraphs 1 to 19 in his outline of submissions dated 2 August 2018 and by counsel for the Minister at paragraphs 2 to 14 in written submissions dated 8 August 2018.
The applicant in this matter, Mr Hadero (“the applicant”), was born in Ethiopia in 1980. In 2010, he met his wife in Ethiopia. She is an Australian citizen and was in Ethiopia for her sister’s baptism.
The applicant married his wife in Ethiopia in 2012.
There are two children born of the marriage -- one child born in 2012 and another child born in 2016. The applicant claims that the eldest child is not his biological child. References to the “applicant’s child” in these reasons is a reference to his daughter born in 2012.
On 7 May 2015, the applicant was granted the visa.
On 21 May 2015, the applicant arrived in Australia.
On 31 December 2015, the Western Australian Police charged the applicant with one count of Aggravated Common Assault against his wife [that is, one count of Common Assault in Circumstances of Aggravation contrary to s.313(1)(a) of the Criminal Code 1913 (WA). The charge related to an alleged offence having occurred at about 2pm on 30 December 2015 (CB 1-2). The delegate noted that the Police Statement of Facts stated that the Police had attended the applicant’s home address (the “Property”) in response to a call for assistance and that his wife had alleged that during a verbal argument the applicant grabbed her by the neckline of her shirt and choked her on two occasions. The applicant’s child born in 2012, who was three years of age at the time, was present during the incident (CB 2).
On 23 March 2016, the applicant pleaded not guilty to assaulting his wife. The matter was adjourned until 5 August 2018 for trial. On the morning of the trial, the applicant’s wife withdrew the allegation that the applicant had choked her, maintaining that he had grabbed her clothing and pulled at her. The applicant changed his plea to guilty, the trial was vacated, and the matter adjourned (CB 107, 123).
On 22 August 2016, the Police attended the applicant’s address in relation to a domestic violence incident. At the time, the applicant’s wife told the Police she was 5 months pregnant. The Police issued the applicant with a 24 hour Police Order requiring him to leave, and stay away from, the Property for a period of 24 hours (CB 2).
On 23 August 2016, after the Police Order had expired, the applicant returned to the Property and was told that he would not be allowed to enter or see his daughter. Since that time, the applicant has not come into contact with his wife or his daughter except for the purpose of participating in family law proceedings or spending time with his daughter in accordance with the parenting orders set by the Family Court.
On 15 September 2016, the applicant’s wife applied for a violence restraining order (“VRO”) against the applicant. She gave evidence in the Magistrates Court at Perth in an ex parte application before two justices of the peace.
On 15 September 2016, the applicant’s wife made a VRO application against the applicant in the Magistrates Court in Perth. The ‘Grounds for the Application’ included the following (CB 2):
Physically sexually, emotionally psychologically abusive.
Threatened to kill [the applicant’s wife] with a knife.
Slaps, punches, strangles, kicks [the applicant’s wife].
Kicked [the applicant’s wife] pregnant stomach.
Yelling screaming shouting at [the applicant’s wife].
Physically & verbally assaulting [the applicant’s daughter].
The justices’ of the peace were satisfied that the grounds for a VRO under ss.11A and 11B of the Restraining Orders Act 1997 (WA) existed and made an interim order for the benefit of the applicant’s wife and the applicant’s daughter (CB 115, 167-9).
On 4 October 2016, the applicant was served with the interim VRO.
On 5 October 2016, the applicant lodged an objection to the interim VRO (CB 124).
On 7 October 2016, the applicant applied for and was granted an interim VRO against his wife (CB 170).
On 2 November 2016, the applicant was convicted in the Magistrates Court of Aggravated Common Assault and sentenced to a Conditional Release Order for 6 months from 2 November 2016 with a $2,000 undertaking and a Spent Conviction order (CB 27).
On 13 March 2017, a delegate of the Minister issued the applicant with a Notice of Intention to Consider Cancellation (“NOICC”) of his visa, pursuant to s.116(1)(e)(ii) of the Act. The delegate considered that there were grounds for the cancellation of the applicant’s visa, being that the applicant’s presence in Australia may be a risk to the safety of an individual or individuals.
On 27 March 2017, the applicant provided a response to the NOICC by email (CB 5). In the response, the applicant claimed that he:
a)was the one who was physically, emotionally and verbally abused by his wife;
b)tolerated the abuse for the sake of his daughter;
c)was falsely accused by his wife and pleaded guilty for the sake of “easing the court case”; and
d)is from the Church and grew up spiritually so would never do such acts.
On 5 April 2017, the applicant provided a further response to the NOICC (CB 11). The response claimed that:
a)the argument that preceded the Police order being made against the applicant was verbal in nature and not physical;
b)the applicant had not returned home since the issuing of the Police order;
c)the VRO was used by the applicant’s wife as a tool of power and control to remove him from the house and presence of the child;
d)the applicant did not object to the VRO because he considered that it would afford him protection from his wife;
e)because the applicant did not object to the VRO, the allegations made by his wife were not tested in Court; therefore, the granting of the VRO cannot be taken as evidence of guilt; and
f)the applicant has abided by the conditions of the VRO.
On 10 May 2017, the applicant’s representative provided the delegate with a transcript of the proceedings in the 2 November 2016 Perth Magistrates Court proceedings (CB 23-29) and highlighted the following matters (CB 19):
a)the applicant did not have a prior criminal record;
b)the applicant participated in individual counselling due to his language barriers;
c)the Police were made aware of the applicant’s wife assaulting him;
d)the charges were reduced prior to the applicant entering an early plea of guilty;
e)the Court agreed that the offence was at the very low end of the scale;
f)the Police did not oppose the request for a spent conviction.
On 18 May 2017, the delegate cancelled the applicant’s visa pursuant to s.116(1)(e)(ii) of the Act (CB 31-43). The delegate found that the Applicant’s conviction for the Aggravated Common Assault charge related to an act of domestic violence against his wife (CB 35). The delegate further found that the subsequent Police attendances at his address and the VRO against the applicant appear to indicate that he may be an ongoing risk to the safety of his wife and the two children (CB 35).
The delegate further found (amongst other things) that:
a)the applicant’s bail conditions in relation to the Aggravated Common Assault charge included a condition that he was “not to act in an offensive, intimidatory or emotionally abusive manner towards [his wife]” (CB 38). The delegate noted that whilst nothing came of the Police attendance at the family home on 22 August 2016, despite the applicant’s pending Court hearing and his bail conditions, he was unable to avoid an incident with his wife that required the Police to attend their family home (CB 38);
b)the fact that the Magistrates Court had issued the VRO indicates the Court was satisfied that there was concern for the safety of the applicant’s wife and their daughter (CB 38);
c)the applicant’s conviction for Aggravated Common Assault, the subsequent Police order and the interim VRO show the applicant’s actions over that period were considered a risk to the safety of his wife (CB 40);
d)the Court’s granting of a final VRO shows a continued concern that the applicant is a risk to the safety of his wife (CB 40); and
e)he was satisfied that the applicant continues to present a future risk to his wife, and his continued presence in Australia may present a risk to the safety of his wife and the two children (CB 40).
On 23 May 2017, the applicant applied to the AAT for a review of the delegate’s decision (CB 44).
On 21 September 2017 (CB 63) and 22 October 2017 (CB 85), the applicant’s representative provided written submissions to the AAT.
On 30 October 2017, the applicant appeared before the AAT and gave evidence. He was represented by a registered migration agent and had the assistance of an interpreter in the Amharic language. At the hearing, the AAT also received oral evidence from a number of the applicant’s friends (see CB 87).
On 21 November 2017, the applicant’s representative provided further submissions to the AAT (CB 95) as well as supporting documents, including:
a)transcripts of Court proceedings in relation to:
i)the interim VRO granted in favour of the applicant’s wife against the applicant (CB 109); and
ii)applicant’s application for interim VRO against his wife (CB 120 – 166).
b)copies of:
i)the interim VRO granted in favour of the applicant’s wife against the applicant (CB 168-169);
ii)the interim VRO granted in favour of the applicant against his wife (CB 170); and
c)Family Court orders providing for the applicant to spend time with his daughter (CB 175).
On 28 November 2017, the AAT affirmed the decision of the delegate (CB 184).
Relevant Legislation
As is relevant to this matter, s.116 of the Act provides:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: …
…
(e)the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i)the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii)the health or safety of an individual or individuals; or …
In Western Australia, VRO’s are issued in accordance with the provisions of the Restraining Orders Act 1997 (WA). Section 16 of the Restraining Orders Act 1997 provides for the duration of VRO’s generally and relevantly states that an interim VRO remains in force until one of the following occurs:
a)a final order in respect of the matter comes into force; or
b)a final order hearing in respect of the matter is concluded without a final order being made; or
c)the interim order is cancelled or expires; or
d)in the case of a telephone order, 3 months elapse from the time the order came into force.
Section 31 of the Restraining Orders Act 1997 provides that within 21 days of being served with an interim VRO a respondent must complete the respondent’s endorsement copy of the order in accordance with the instructions on it, and return it to the registrar.
Subsection 32(2) of the Restraining Orders Act 1997 provides that if a respondent does not return the respondent’s endorsement copy of an interim order in accordance with s.31, the interim order becomes a final order with the same terms as the interim order.
Where the respondent to a VRO:
a)returns the respondent’s endorsement copy of an interim order in accordance with s.31; and
b)indicates on it that the respondent objects to the interim order becoming final,
then the Court will list a final order hearing: see s.33 of the Restraining Orders Act 1997.
Tribunal’s Decision
The AAT decision appears at pages 184-193 of the CB.
The AAT considered whether there were grounds to cancel the applicant’s visa at paragraphs 6 to 25 of its reasons. The AAT noted at [7] of its reasons that the primary decision record provided the following information:
a)On 31 December 2015, the WA Police charged the applicant with Aggravated Common Assault against his wife relating to an incident that occurred on 30 December 2015. The police Statement of Facts indicates that the applicant’s partner provided a statement alleging that the applicant grabbed her by the neckline of the shirt and choked her on two occasions in the presence of their three year old daughter. (The choking allegation was subsequently withdrawn).
b)The applicant was convicted of this charge on 2 November 2016 and sentenced to a Conditional Release Order for 6 months from 2 November 2016 with a $2000 undertaking and a spent conviction. (In his submission to the AAT the applicant argues the delegate did not give sufficient weight to that fact.)
c)The police attended the applicant’s home on the evening of 30 December 2015 in relation to an incident but did not pursue the matter.
d)On 22 August 2016 the police attended the applicant’s home in relation to a domestic incident. The police issued the applicant with a 24 hour police order to leave the house.
e)On 15 September 2016 the applicant’s wife made an application for a VRO against the applicant. The grounds for application included physical, emotional, sexual and psychological abuse, threat to kill, physical and verbal abuse to the wife and their child (the applicant denies these allegations). The Magistrates Court in Perth made an interim VRO on 6 September 2016 to protect the wife and the child. That order was served upon the applicant on 4 October 2016.
The AAT noted, amongst other things, that:
a)in both his NOICC and written submissions to the Tribunal, the applicant outlined the nature of his relationship with his wife and the emotional and psychological abuse which he claims his partner perpetrated against him (CB 186 at [10]). The applicant also claimed that his wife had been violent towards him (CB 188 at [20]);
b)in relation to the incident which formed the basis for the VRO application made by the applicant’s wife, the applicant stated that there had been a verbal argument but no physical abuse. The applicant further stated that the incidents described in the application for the VRO did not occur and that the VRO was used as a means to remove him from the house and from the child (CB 186 at [9]);
c)in his written submission the applicant had claimed he did not object to the VRO application as he thought the VRO would afford him protection from his wife as he had been a victim of family violence and the wife’s allegations were not tested in court (CB 186 at [10]). The Tribunal did not accept that the applicant would concede the basis for the VRO (even though he claims not to have seen the application) simply because it was easier to do so (CB 187 at [15]);
d)in oral his evidence the applicant suggested that he did present his case to court in relation to the permanent VRO, and had legal representation, but his evidence was not accepted (CB 186 at [10]);
e)despite the applicant’s denial of the allegations, the Court preferred the evidence of his spouse and, having heard the evidence of both, had issued the final VRO to protect his wife and child from the applicant (CB 187 at [15]); and
f)information in the primary decision record indicates that the final VRO was issued in October 2016 and remains in effect until 12 October 2018 court (CB 186 at [19]) which was consistent with his evidence that he had defended the final VRO but was unsuccessful (CB 186 at [10], CB 187 at [15] and CB 188 at [22]);
In relation to the issuance of a final VRO against the applicant, the AAT concluded that:
22.The Tribunal has also considered the applicant’s claim that the VRO was issued as a means of excluding him from the house, which was his wife’s aim. The applicant argues that the grounds which formed the basis of the VRO were not credible and contradict his character and principles and he denies that the conduct took place. The Tribunal acknowledges the applicant’s denial of the conduct, however the Tribunal is mindful that the matter has been heard in court before the final VRO was issued. The applicant claims the final VRO was issued as a consequence of agreement between the parties to have mutual VROs and the wife did not attend the court. (In his subsequent submission to the Tribunal of 22 November 2017 the applicant indicated there were no mutual VROs issued at the time.) The applicant’s evidence to the Tribunal is that he presented his case in court, with the assistance of a lawyer, but the court accepted the evidence of his wife. The applicant claims he decided not to oppose the application made by his former partner but if he claims her claims were entirely untrue, the applicant had the opportunity to present his case in court and to establish that the grounds were not credible and that the conduct alleged in the application for the VRO did not occur. The applicant either did not do that (which implies that he agreed to the allegations) or was unsuccessful in his opposition to the allegations. Contrary to the applicant’s submission, the Tribunal considers that the fact that, after having heard the matter and after giving the applicant the opportunity to present his case, the VRO was issued must be taken as evidence that following judicial consideration of the matter, it was established that there was a need to afford formal protection to the wife and child through the issuance of the VRO. It is not sufficient to now state that the basis for the VRO is not credible or that the circumstances were entirely made up. The opportunity to establish that was during the VRO process and the applicant failed to do that.
After having had regard to all of the relevant circumstances and evidence, the AAT found that the applicant engaged in conduct that involved violence, or a threat of violence, towards his wife; placing weight on the fact that the applicant had been convicted of assault and the issuance of the VRO. The AAT was therefore satisfied that the ground for cancellation of the applicant’s visa under s.116(1)(e) of the Act existed (CB 189 at[25]) and then considered whether the discretionary power to cancel the visa should be exercised (CB 189 at [25]).
The AAT noted that there are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. In deciding whether to exercise the discretion to cancel the applicant’s visa, the AAT had regard to the relevant circumstances, including but not limited to the matters identified in the Department’s Procedure Advice Manual – PAM3, “General Visa Cancellation Powers” (CB 189 at [26]). The AAT:
a)accepted that the presence of a minor child in Australia may constitute a compelling reason for the applicant to remain in Australia (CB 190 at [29]);
b)accepted that the applicant had, pursuant to Family Court orders in September 2017, supervised access to his daughter (CB 190 at[31]), and noted the applicant’s submissions as to the fact that he would have difficulty exercising those rights of access if his visa is cancelled (see CB 190 at [32]);
c)noted the applicant’s evidence that he may struggle to find employment in Ethiopia but was not satisfied that the applicant would be unable to obtain employment and support himself in Ethiopia (CB 190 at [33]), noting also the applicant’s evidence that his parents and siblings are in Ethiopia (CB 190 at [33]);
d)accepted that, as the applicant has been living in Australia for a number of years and that he has a child in Australia, the cancellation of his visa will result in considerable hardship to the applicant (CB 190 at [34]);
e)acknowledged that if the applicant’s visa was cancelled and unless he is granted another visa, he would become an unlawful non-citizen, and subject to detention and possible removal from Australia. The AAT also noted that the applicant may be subject to exclusion periods in relation to some, but not all, future visa applications (CB 191 at [37]);
f)noted that there is no evidence, and the applicant did not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation of the Applicant’s visa (CB 191 at [39]);
g)noted that the applicant and his wife have a child, and that the applicant claims that the second child born during their marriage is not his child (CB 191 at [40]). The AAT concluded that the fact a Court found there was a need for a VRO to protect the applicant’s child suggests that there were some concerns about the child’s safety, particularly if the applicant asked for the child not to be included in the VRO (CB 192 at [41]);
h)having had regard to the fact that the applicant was convicted of the assault charge, and that the offending occurred in the presence of the applicant’s child, was not convinced that it is in the best interest of the child to remain with the applicant if there is any risk, even a small risk, of violent behaviour (CB 192 at [42]). The Tribunal was also not convinced by the applicant’s suggestion that the child will experience hardship as a result of the separation (CB 192, at [42]); and
i)accepted that the applicant’s friends believe him to be a person of good character incapable of violence and not a threat, but instead to be the victim of family violence (CB 192 at [44]). However, the AAT placed greater weight on the fact that there was a conviction for assault and a VRO in place in relation to the applicant (CB 192 at [44]).
The AAT accepted that considerable hardship might be caused to the applicant if his visa is cancelled, including that he may have few opportunities to see his daughter (CB 193 at [48]). The AAT placed considerable weight on the fact that the cancellation of the visa may result in the applicant being separated from his child (CB 193 at [48]), but concluded that it was not satisfied that the best interest of the child will necessarily be best served if the visa is not cancelled (CB 193, at [48]). The AAT was of that view because the applicant had been convicted of an assault in relation to the child’s mother, and that altercation occurred in the presence of the child (CB 193 at [48]).
Overall, the AAT formed the view that the applicant’s presence in Australia is or may be or would or might be a risk to the safety of an individual, being the applicant’s wife and potentially his child (CB 192 at [45]). Accordingly, the AAT concluded that there were grounds for cancelling the applicant’s visa (CB 192 at [45]).
Ground 1
The Administrative Appeals Tribunal fell into jurisdictional error by overlooking or failing to consider evidence that, firstly, the VRO issued against the applicant was interim rather than final, and, secondly, that the applicant had objected to the VRO against him and that objection had not been judicially considered.
Applicant’s Submissions
In support of this ground, the applicant submitted in his outline of submissions dated 2 August 2018:
a)The AAT committed jurisdictional error in assessing the risk the applicant posed to the health or safety of his wife and daughter when it overlooked evidence before it that the VRO was an interim VRO rather than a final VRO.
b)As part of his post-hearing submissions the applicant had informed the AAT that the VRO issued against him was an interim VRO but that this evidence had not been considered on the face of the decision record.
c)The applicant had applied for a variation of his wife’s VRO against him but had been confused about the VRO against him due to the conflict in the terms of the order which allowed him to contact his wife for the purpose of seeing his daughter but then made his daughter a protected person, prohibiting him from contacting her (CB 124 and 140). This confusion was evident from the transcript of the ex parte hearing in relation to his VRO against his wife, a copy of which he provided to the AAT as part of his post-hearing submissions.
d)In AMF17 v Minister for Immigration & Anor [2018] FCCA 1848 (“AMF17”) at [35], Judge Smith cited the judgment of North and Charlesworth JJ in BXK15 v Minister for Immigration & Border Protection [2018] FCAFC 76 (“BXK15”) which concerned the Tribunal not considering a number of witness statements, referencing the following passage from BXK15 at [23]:
In our view, the critical question is not whether the Tribunal was likely to view the statements with scepticism. Nor is it correct to ask whether the two witness statements could possibly overcome the significant adverse credibility findings recorded in the Tribunal's reasons. To approach the appeal in that way is to ignore the circumstance that the Tribunal's reasons are a record of a reasoning process based on an incomplete assessment of the relevant evidence. The critical question is whether the Tribunal could possibly have assessed the appellant's credibility (and hence the substantive issues) differently had it been conscious of the content of the statements at the time that it engaged in its own reasoning process.
e)Relying on the comments of North and Charlesworth JJ in BXK15, the AAT’s decision record did not refer to the interim VRO or the transcript of the applicant’s VRO hearing and is, therefore, ‘a record of a reasoning process based on an incomplete assessment of the relevant evidence’.
f)In AMF17 Judge Smith discussed the law relevant to a failure to consider evidence, stating at [32]:
Although it was a decision of a single judge, the leading decision in respect of this question is that of Robertson J in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99. According to SZRKT, the fundamental question is the importance of the overlooked material to the exercise of the Tribunal’s function and the seriousness of the error: see SZRKT at [112], Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67 at [29].
g)The AAT’s finding that the applicant was the subject of a final VRO led it to make various other findings (CB 187-189 at [15], [19], [20] and [22] and CB 193 at [46]). These findings were all erroneous if the applicant was in fact only the subject of an interim VRO and affected the way in which the AAT treated the evidence relating to the VRO which was critical to its finding that the applicant may pose a risk to the health or safety of his wife and child; a precondition to cancelling his visa. Relying on AMF17, if the AAT had performed a complete assessment, it would likely have made very different findings in relation to the VRO imposed against the applicant which may have changed its ultimate decision to cancel his visa and as such the AAT’s failure to consider this evidence was a jurisdictional error.
First Respondent’s Submissions
At paragraphs 32 to 42 of his Outline of submissions dated 8 August 2018, the Minister relevantly responded that:
a)Contrary to the applicant’s submissions, there was evidence before the AAT of a final VRO which included:
i)a reference in the delegate’s decision as follows (CB 40):
“…I note the interim VRO issued on 15 September 2016 against him was for the protection of his wife and his daughter. On 5 May 2017, the Department clarified this with the Western Australia Police who advised the Perth Magistrates Court issued a final Violence Restraining Order against him on 7 October 2016 in relation to his wife and it remains in effect until 12 October 2018”;
ii)oral evidence before the AAT that the applicant had defended the final VRO with the benefit of legal representation, had put his case before the Court, but was not successful (CB 187 at [15]; CB 188 at [22]; see also CB 186 at [10]); and
iii)a claim by the applicant that the final VRO was issued as a consequence of agreement between the parties to have mutual VROs and that his wife did not attend the court (CB 188 at [22]). In his subsequent submission to the Tribunal dated 22 November 2017, the applicant had indicated that there were no mutual VROs issued at the time (CB 188 at [22]).
b)Based on the inconsistencies in the evidence before the AAT, it concluded that the applicant had either not opposed the final VRO (which implies he agreed to the allegations) or he was unsuccessful in his opposition to the allegations (CB 188-189 at [22]).
c)The AAT did not overlook evidence or fail to consider evidence, or committed the type of jurisdictional error identified in AMF17 or in BXK15.
d)The AAT carefully assessed all of the evidence before it concerning the final VRO and then made findings concerning the VRO, and gave detailed reasons for its findings.
e)The Tribunal’s findings could not be said to lack a logical connection with the evidence or to otherwise be illogical or unreasonable relying on Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 at [51].
Consideration
This ground of review asserts that jurisdictional error arose because the AAT overlooked or failed to consider relevant evidence that the VRO issued against the applicant was interim rather than final, and that the applicant had objected to the VRO against him and that objection had not been judicially considered.
The applicant did not particularise exactly what evidence the AAT allegedly overlooked or failed to consider in his amended application but specified in his submissions that this evidence included:
a)the post-hearing submissions dated 21 November 2017 in which the applicant contended that the VRO issued against him was only ever an interim VRO (CB 98-99);
b)the copy of the relevant VRO (CB 167-169); and
c)the transcript of the Magistrates Court of Western Australia proceedings which recorded that the applicant had lodged an objection to his wife’s interim VRO against him and did not consent to it (“the VRO Transcript”) (CB 124, 127, and 158).
As noted by Judge Nicholls in SZRHL & Anor v Minister for Immigration & Anor [2018] FCCA 2369 at [39], the assertion that the Tribunal “overlooked” a piece of evidence can only properly be understood as an allegation that it did not consider it. That is, it did not turn its mind to the above mentioned evidence and its contents, and did not engage on an intellectual level with it.
The Court notes that while the AAT did not specifically mention the VRO Transcript or the copy of the interim VRO, it was not obliged to refer to every piece of evidence before it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]. Further, a failure to specifically refer to a piece of evidence does not necessarily mean that it has not been considered: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34].
In its reasons for decision, the AAT makes reference to the applicant’s post-hearing submissions of 22 November 2017 which annexed the VRO Transcript and a copy of the relevant VRO (the evidence the AAT arguably “overlooked”) as part of an analysis of whether the VRO was final or only interim (CB 188 at [22] and [23]).
Given that AAT makes reference to the applicant’s post-hearing submissions of 22 November 2017 the Court is unwilling to infer from the absence of express discussion of the VRO Transcript and a copy of the relevant VRO in its reasons that these documents were overlooked or not considered: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75].
Clearly, the AAT turned its mind to and gave due consideration to the documentary evidence the applicant provided in support of his claims, being the post-hearing submissions of 22 November 2017 which annexed the VRO Transcript and a copy of the relevant VRO.
Further, the AAT addressed the inconsistent evidence provided by the applicant in relation to his objection, or lack thereof, to the wife’s VRO against him (making specific reference to the applicant’s submissions of 22 November 2017) and then made subsequent findings at [22] which are reproduced above at paragraph 41 of these reasons.
The Court agrees with the Minister’s submissions that the VRO Transcript does not resolve the issue of whether or not a final VRO had been made. It merely corroborates to a certain extent that there was an objection lodged and, therefore, as a matter of course the matter would have gone to a final order hearing. This is consistent with the applicant’s oral evidence that the matter did go to a final hearing where he was unsuccessful and with the operation of s.33 of the Restraining Orders Act 1997.
In relation to the issue of whether the VRO Transcript was not considered because it was not mentioned in the decision record, s.43(2B) of the Administrative Appeal Tribunal Act 1975 (Cth) requires the AAT to include in its written reasons for decision “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”.
Given that nothing in the VRO Transcript takes the issue of whether or not a final VRO had been made any further than the evidence the AAT already had before it and that, in effect, the VRO Transcript had no practical impact on the AAT’s decision, the AAT’s failure to explicitly refer to the VRO Transcript in its reasons does not disclose any basis for a claim that the AAT failed to consider, or overlooked the applicant’s evidence.
Accordingly, the Court is satisfied that the AAT considered the post-hearing submissions of 22 November 2017, the copy of the relevant VRO and the VRO Transcript and did not commit the type of jurisdictional error identified in AMF17 or BXK15.
In relation to the findings made by the AAT in relation to the final VRO, the AAT was aware that the VRO against the applicant, being the VRO issued on 15 September 2016, had initially been issued on an interim or temporary basis (CB 186 at [7] and CB 187 at [14]).
The AAT then addressed the evidence before it in relation to the final VRO noting the applicant’s oral evidence that he defended the final VRO and had legal representation before the court but was not successful as well as his claims that the final VRO was issued as a consequence of an agreement between the parties to have mutual VROs and the wife did not attend the court.
The Court also notes that there was information available to the AAT from the delegate’s decision that the Perth Magistrates Court issued a final VRO against the applicant on 7 October 2016 in relation to his wife and it remains in effect until 12 October 2018 (CB 40).
The AAT was ultimately satisfied that the final VRO was issued as a consequence of a final VRO hearing in which the applicant had the opportunity to present his case, was legally represented in doing so and after his evidence was heard (CB 193 at [46]).
The Court agrees with the Minister’ submission that the findings of the AAT in this regard could not be said to lack a logical connection with the evidence or to otherwise be illogical or unreasonable. The Court finds that it was open to the AAT to reach the conclusions on the evidence before it and for the reasons it gave.
Any grievance as to the AAT’s conclusion in this regard, or as to the weight attributed to any piece of evidence, is a grievance as to the merits of its decision which this court is prohibited from reviewing: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Accordingly, for the reasons given above, ground 1 of the applicant’s amended application must fail.
Ground 2
The Administrative Appeals Tribunal fell into jurisdictional error by denying the applicant procedural fairness by breaching his legitimate expectation that the best interests of his child would be given primary consideration in deciding whether to cancel his visa.
Applicant’s Submissions
The applicant argues that the AAT denied him procedural fairness by not giving primary consideration to the best interests of his child and, as a result, the AAT’s decision was vitiated by jurisdictional error.
The applicant submitted that:
a)the AAT’s decision does not confront the central question of what was in the best interest of the applicant’s child and the AAT did not make a finding as to what the best interests of the applicant’s child were;
b)to the extent that it can be inferred that the AAT considered that it would be in best interests of the applicant’s child for the applicant to have his visa cancelled and be deported, this would be a finding that the AAT would not be entitled to make;
c)the Family Court, having addressed the best interests of the applicant’s child, made an order that the applicant spend time with his daughter (CB 175) and, therefore, found that it was in the best interests of the applicant’s child to have a relationship with the applicant which involved her being in his presence; and
d)the AAT was in no position to go behind the finding which formed the basis of the Family Court order, it having been made by a specialist court after hearing submissions and reviewing evidence from the applicant and the applicant’s wife.
In support of these submissions the applicant relied on the following jurisprudence:
a)in Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 292, (“Teoh”) Mason CJ and Deane J stated that a decision maker must look to a child’s best interests as a primary consideration and then asking themselves whether the force of any other consideration outweighed it;
b)in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [32], (“Wan”) an appeal from the AAT, a Full Court of the Federal Court said that the AAT was required to identify what the best interests of the children of the visa applicant required 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; and
c)in Nweke v Minister for Immigration and Citizenship [2012] FCA 266 (“Nweke”) and Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897, (“Lesianawai”) the reasoning in Wan was applied to quash a decision of the Minister to cancel a visa on character grounds as a denial of procedural fairness. In both those cases the Minister's consideration of the best interests of a child was left at the level of mere hypothesis of possible harm, as opposed to the Minister first determining what in fact are those best interests, and only then assessing whether the strength of any other relevant considerations outweighed this primary consideration. In both those cases, it was found that the Minister had fallen into error when the Minister’s statements of reasons indicated that the balancing exercise had been conducted on the basis of a finding or assumption that it may be in the children’s best interests if their father’s visa was not cancelled, without any decisive determination being first made on what the best interests of the children actually required.
The applicant submitted that, like the Minister’s decisions in Lesianawai and Nweke, the AAT’s decision does not confront the central question of what the best interests of the applicant’s daughter. The applicant submitted that given the equivocal finding that the applicant may pose a risk to the applicant’s child and wife, not that he is a risk the AAT did not make the required finding but mere hypothesised as to the risk.
The applicant further submitted that in any event, the AAT failed to treat the best interests of the applicant’s child as a primary consideration and as a result the applicant was denied procedural fairness.
First Respondent’s Submissions
In response, the Minister submitted that:
a)there is nothing in the AAT’s decision that indicates that it did not treat the best interests of the applicant’s child as a primary consideration in reaching its decision in this case;
b)the applicant was not denied procedural fairness in this case. He attended a hearing before the AAT and gave oral evidence as to all relevant matters, including the best interests of his child. He also provided written submissions to the AAT; and
c)the applicant’s submission that he was denied procedural fairness in relation to his legitimate expectation that the best interest of his child would be treated as a primary consideration is without foundation or merit.
In relation to the issue of the best interests of the applicant’s child, the Minister drew the Court’s attention to the following findings made by the AAT:
a)having had regard to the fact that the applicant was convicted of the assault charge, and that the offending occurred in the presence of the applicant’s child, the AAT was not convinced that it was in the best interest of the child to remain with the applicant if there is any risk, even a small risk, of violent behaviour (CB 192, [42]);
b)the AAT was also not convinced by the applicant’s suggestion that the child will experience hardship as a result of the separation (CB 192, [42]); and
c)the AAT placed considerable weight on the fact that the cancellation of the visa may result in the Applicant being separated from his child (CB 193, [48]), but concluded that it was not satisfied that the best interest of the child will necessarily be best served if the visa is not cancelled (CB 193, [48]). The AAT was of that view because the applicant had been convicted of an assault in relation to the child’s mother, and that altercation occurred in the presence of the child (CB 193, [48]).
The Minister submitted that because the AAT had given significant weight to the hardship that would be caused to the applicant and his daughter if the applicant’s visa was cancelled, a fair inference could be drawn that the AAT did, in fact, intend to treat the best interests of any the child as a primary consideration.
The Minister argued that having treated the best interest of the child as a primary consideration, the AAT ultimately concluded that the nature and circumstances of the assault offence outweighed the other considerations in this case (CB 193, [49]) and that this approach was consistent with the approach outlined in the decisions in Teoh, Wan, Nweke, Leisianawai and Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608.
The Minister also submitted that s.60CA of the Family Law Act 1975 (Cth), referred to by the applicant in his submissions, has no application in migration decisions. Nor is a decision made by the Family Court binding on the Minister in relation to decisions made under the Act
Consideration
As noted above s.116(1)(e)(ii) of the Act allows the Minister (or the AAT on review) to cancel a visa if satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.
The AAT must satisfy itself that the grounds for cancellation in s.116(1) (e)(ii) of the Act exist and then proceed to consider whether to exercise the discretion to cancel the visa.
To lawfully exercise the discretion to cancel the applicant’s visa in this matter, the AAT must have identified the best interests of the child. In this regard the Court notes the comments made by Mason CJ and Deane J in Teoh at [292] that a decision-maker with an eye to the principle enshrined in the convention would be looking to the best interests of the children as the primary consideration, asking whether the force of any other consideration outweighed it.
As pointed out by the applicant, the Court in Wan recognised that when the AAT was exercising its discretion to cancel a visa under s.501 of the Act it was (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.”
The Court notes that the AAT in this matter does not expressly state in its reasons that the best interest of the applicant’s child was a primary consideration. However, the Court is satisfied that fair reading of the AAT’s reasons for decision as a whole shows that the AAT did in fact give proper, genuine and realistic consideration to the children’s best interests (see Teoh at [414]) and did treat them, albeit be inference, as a primary consideration.
In its reasons for decision, the AAT addressed the best interests of the applicant’s child as follows:
42. The information cited above suggests that when the applicant committed assault against his wife (although the applicant claims nothing happened and there was a misunderstanding, he had been convicted of an assault arising from an incident in December 2015), he did so in the presence of his child and the applicant confirmed that in oral evidence to the Tribunal. In such circumstances, the Tribunal is not convinced that it is in the best interests of the child to remain with the applicant if there is any risk, even a small risk, of violent behaviour. In particular, the Tribunal is not convinced by the applicant’s suggestion that the child will experience hardship as a result of the separation. The Tribunal reaches this conclusion while acknowledging that the applicant has been allowed to have ongoing supervised contact with his daughter.
…
48.The Tribunal accepts that considerable hardship may be caused to the applicant if his visa is cancelled. The Tribunal also accepts that if the visa is cancelled and unless he is granted another visa, the applicant may have few opportunities to see his daughter, although the Tribunal is also mindful that the applicant may have opportunities to apply for other visas. The Tribunal has placed significant weight on the fact that the cancellation of the visa may result in the applicant being separated from his child. The Tribunal has considered the best interests of the child but, for the reasons set out above, the Tribunal is not satisfied that the best interests of the child will necessarily be best served if the visa is not cancelled. This is so because the applicant has been convicted of an assault in relation to the child’s mother and the applicant’s own evidence, the altercation occurred in the presence of the child. Nevertheless, the Tribunal accepts that hardship may be caused as a result of the cancellation.
Clearly, the AAT identified what the best interests of applicant’s child required with respect to the exercise of its discretion. The AAT balanced the best interests of the applicant’s child against the exercise of its discretion, giving significant weight to the fact that the cancellation of the visa may result in the applicant being separated from his child and noting that:
a)the applicant had been convicted of an assault and the issuance of the VRO implies that the court determined there was a need for formal protection order in relation to the applicant’s former partner and child;
b)it was not convinced that it is in the best interests of the child to remain with the applicant if there is any risk, even a small risk, of violent behaviour;
c)it was not satisfied that the best interests of the child will necessarily be best served if the visa is not cancelled;
d)the altercation giving rise to the final VRO and assault conviction, occurred in the presence of the child; and
e)it was not convinced by the applicant’s suggestion that the child will experience hardship as a result of the separation.
These considerations were all assessed when the Tribunal concluded that the visa ought to be cancelled. The Court is satisfied that the AAT put the best interests of the child first when arriving at this conclusion despite stating at [49] that “in the Tribunal’s view, the nature and the circumstances of the offence outweigh other considerations”. The Court does not infer that this statement in paragraph [49] refers to the best interests of the child as being outweighed by the nature and the circumstances of the offence given that the content and context of this paragraph relates almost exclusively to the nature of the applicant’s offence (aggravated assault).
The Court also notes the applicant’s argument that the Family Court had to treat the best interests of the child as the paramount consideration, pursuant to s.60CA of the Family Law Act 1975 (Cth), when it made parenting orders for the applicant to spend time with his child and the AAT was in position to make an alternate finding.
The Court is satisfied that when determining whether it ought to exercise its discretion to cancel the applicant’s visa, the AAT was aware that the Family Court had made orders stating that it acknowledged that the applicant has been granted supervised access to his daughter and is pursuing further orders (CB at [47]).
Further, the Court agrees with the Minister’s submission that parenting orders made by the Family Court have no application in migration decisions. Nor are decisions of the Family Court binding on the Minister in relation to the way in which a decision is made under the Act.
The argument raised by the applicant in relation to the Family Court orders is, accordingly, untenable.
Further, to the extent that the applicant suggests that he was denied procedural fairness, the Court agrees with the Minister’s submissions that the applicant attended a hearing before the AAT and gave oral evidence in relation to all relevant matters including the best interests of the child.
For the reasons given above, the applicant’s complaints about the AAT failing to afford the applicant procedural fairness in relation to the best interests of the child are not made out and ground 2 must fail.
Conclusion
The AAT turned its mind to and gave due consideration to the documentary evidence the applicant provided in support of his claims, being the post-hearing submissions of 22 November 2017, which annexed the VRO Transcript and a copy of the relevant VRO.
The findings made by the AAT were reasonable and open to it on the evidence before it.
The AAT did not fail to take into account the best interests of the child as a primary consideration nand made the required determination of what was in the best interests of the child.
The AAT engaged in a balancing exercise, weighing the matters in favour of cancellation with those against cancellation. As part of this balancing act, the AAT demonstrated that the best interests of the child were a primary consideration.
The AAT’s reasons for decision indicated that it correctly exercised its discretion under s.116 of the Act.
The applicant has failed to establish jurisdictional error in the decision of the AAT dated 28 November 2017.
The applicant’s application seeking judicial review of this decision is dismissed.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 9 November 2018
0
14
6