Ismail v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] HCATrans 111
[2023] HCATrans 111
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M20 of 2023
B e t w e e n -
MOUNIB ISMAIL
Plaintiff
and
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Defendant
GAGELER J
GORDON J
EDELMAN J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 6 SEPTEMBER 2023, AT 10.02 AM
Copyright in the High Court of Australia
MR D.J. HOOKE, SC: May it please the Court, I appear with my learned friends, MR J.D. DONNELLY and MR J.R. MURPHY for the plaintiff. (instructed by Zarifi Lawyers)
MR R.C. KNOWLES, KC: Your Honour, if it pleases the Court, I appear with my learned friend MR N.D.J. SWAN for the defendant. (instructed by Australian Government Solicitor)
GAGELER J: Mr Hooke.
MR HOOKE: Thank you, your Honour.
GAGELER J: Mr Hooke, I should say you sought orders by consent concerning the amendment of the application. Those orders are made.
MR HOOKE: May it please the Court. As your Honours know, the plaintiff moves on the amended application filed on 1 September. In support of that application on the substantive matter, we read the affidavit of Ziaullah Zarifi made on 27 March 2023, and the affidavit of the plaintiff made on 3 May 2023, and the affidavit of Halima Chakik made on 28 June 2023.
We also require an extension of time under section 486A of the Migration Act. In support of that application, or aspect of the application, we read the affidavit of Ziaullah Zarifi of 3 May 2023 and that of the plaintiff of the same date. We have addressed the application for extension of time in our written submissions, and as we apprehend the position of the defendant, it is not opposed, although not the subject of expressed consent. Unless there is anything that the Court wishes me to address, we would rely on our written submissions in relation to the extension of time.
Could I, before taking your Honours to the grounds, ask your Honours to take up very briefly the Migration Act, which is in volume 1 of the joint book of authorities, and if I could ask your Honours first to go to section 501, which is at page 18. The power here engaged is in subsection (1):
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The discretion reposed in the power is unfettered, subject to what comes. At subsection (6) your Honours see the character test and at subsection (7), relevantly here:
A person has a substantial criminal record if –
Relevantly, paragraph (d):
the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more –
Section 499, with which your Honours are well familiar, permits the Minister to:
give written directions to a person or body having functions or powers under this Act –
but does not empower by subsection (2):
the Minister to give directions that would be inconsistent with this Act or regulations.
And subsection (2A), of course, requires that:
A person or body –
Relevantly here, the delegate:
must comply with a direction under subsection (1).
The direction here, as your Honours know, is Direction 90, to which I will come in addressing the grounds in due course. Could I then invite your Honours to ground 1 which, as your Honours know, is a complaint in relation to the consideration of the primary consideration, the interests of a minor child. The delegate’s reasons in relation to that ground are conveniently found at page 56 of the application book, where, having addressed the position of other minor children, the delegate says at paragraph 75:
I acknowledge that Mr ISMAIL has listed the name Mariam Chakik under minor children in the Personal Circumstances form dated 30 August 2022.
The existence of this child and the contention in relation to her status as a minor requiring consideration under the direction is not only raised in the Personal Circumstances Form but is in the mind of the delegate. Unfortunately, the delegate then continues and says:
However, Mr ISMAIL has provided no further information regarding this person including their age. Therefore I am unable to determine if there would be any effects on Mariam Chakik –
and then an odd comment:
if she is indeed a minor child –
As the affidavit of Halima Chakik discloses, there was information readily available and easily obtainable which answered the query at the end of that paragraph:
if she is indeed a minor child –
in the form of a birth certificate. The delegate had the contact details of Ms Chakik, the child’s mother. The delegate was in regular back-and-forth contact with the representative of the plaintiff and indeed with the plaintiff himself. The delegate requested further information from the plaintiff and from the plaintiff’s representative in relation to aspects of the matter that were of concern and, in our submission, ought to have raised a query in relation to Mariam, it being something that had, in our submission, obviously been overlooked for the reasons that Ms Chakik deposes to in her affidavit.
GAGELER J: Now, when you say “ought”, what is the principle that you are invoking?
MR HOOKE: What we say about that, your Honour, is that the direction mandated consideration of the interests of each minor child who might be affected by the decision. We say the delegate was aware of the existence of this child and of the fact that she was, even on the material in the Personal Circumstances Forms, scanned as it was, a child who had daily contact with the plaintiff.
Those matters standing alone ought to have engaged the delegate’s mind on the issue of whether a child in daily contact with the plaintiff would be somebody who would be affected by the decision. We say, first of all that, as a matter of the exercise of the jurisdiction, the delegate was bound to make the inquiry to enable that jurisdiction to be properly discharged.
GAGELER J: Is there an intermediate principle that you rely upon?
MR HOOKE: The principle is that in order to exercise the jurisdiction – I will take your Honours to, perhaps, Teoh and SZIAI, to explain this, but we say that in order to properly discharge the jurisdiction where a matter, the subject of mandatory consideration, arises on the material before the delegate the failure to place themselves in a position where something is obvious and easily obtainable, or not, involves a constructive failure to exercise jurisdiction in simply ignoring it.
EDELMAN J: Mr Hooke, a similar submission was put before this Court in, I think, DUA16, and the way the Court treated that was to say that there is no general duty to inquire or to get information that exists somehow independently of the statute, but that in exercising a power, and one would extrapolate from that also in the performance of a duty, an authority must act reasonably. Is that not really what this amounts to? It cannot really amount to a submission that an authority is required, in the performance of any statute, to do absolutely everything that is necessary and make every possible inquiry for the purposes of discharge of its jurisdiction.
MR HOOKE: We accept that, your Honour, and we do not put the submission as high as having a duty in every case, to chase every rabbit down every burrow. We would not be heard to say that.
GORDON J: Can I test that? Accepting that, when one looks at – and you took us to, I think, page 114 of the book, I assume is the personal circumstances, minor children reference to Mariam being listed. Is that ‑ ‑ ‑
MR HOOKE: Yes, your Honour.
GORDON J: What does a delegate then do, or a decision‑maker then do when, on the next page, they are asked to attach documents:
Describe your relationship with each child/ren above, including the role you play in his/her life
And there is no reference to her in those materials.
MR HOOKE: No, there is not.
GORDON J: Then, just to complete it, that, of course, postdates earlier documents in July. Again, Mr Ismail’s own written statement, where there is no reference to this young woman. If you accept it is not an obligation to chase every rabbit down every hole, one then comes back to the facts of this case, and the difficulty is that that is the only reference we have got, and there is no additional material, which is what I think 115 is intending to do, and that is to, in effect, explain the relationship with each of these children.
MR HOOKE: No, your Honour, we accept that there was a deficiency in the information that was provided to the delegate. Indeed, by definition, whenever this question arises, there will be a deficiency in the information that has been provided, otherwise the question does not arise.
GAGELER J: From your answer to Justice Edelman I take it that you accept the burden of showing that the failure to inquire was unreasonable?
MR HOOKE: Yes, and the authorities, I have to say, are a little diverse in terms of the treatment of this ground, whether it is a constructive failure to exercise jurisdiction, whether it is unreasonable, or whether it is a denial of procedural fairness.
GAGELER J: You were going to take us to Teoh. In Teoh I think it is put in terms of unreasonableness, procedural form of unreasonableness.
MR HOOKE: It is, and then in SZIAI it is put more on the basis of a constructive failure to exercise jurisdiction. It may be that in different cases with different facts and different statutory contexts the complexion of the complaint changes. For example, in Teoh, it was a failure to obtain information that bore adversely on Mr Teoh’s credit and circumstances, so it manifested more as an unreasonable/procedural fairness complaint. In this case, we say it is unreasonable, we say that in its manifestation it also amounts to a constructive failure to exercise the jurisdiction. It is ‑ ‑ ‑
EDELMAN J: But the jurisdiction is exercised, it is just – I mean, what it boils down to in your submission is just that it is – you say it is exercised unreasonably.
MR HOOKE: Yes, or incompletely.
EDELMAN J: Yes.
MR HOOKE: It is because the delegate never puts themselves in a position to properly discharge what is required under clause 8.3 of the direction. Your Honours have the reference at court book 114. That is the extent of the information that was before the delegate. We say that that must have raised the antennae, and indeed it did because we know that from paragraph 75 of the delegate’s reasons.
Your Honours have in the court book – and I do not want to delay trawling through it, but between pages 259 and 278, and also at 106, your Honours have a series of pieces of email and correspondence that passed between the plaintiff, his representative, and the delegate going backwards and forwards. What your Honours will see from that correspondence is, as we say in our written outline, that the process of decision making in this case was an informal one. We do not criticise that. It was a dynamic one in which, as I said earlier, the delegate was making requests for information where more information was required. It would have been a very simple matter to include in one of those requests, or indeed, to make a separate request for some further information about Mariam.
What we know from Ms Chakik’s affidavit is that there was information available. The birth certificate which established that she was a minor child, despite the reservation expressed in paragraph 75, and also it is open to the Court to infer, and we would submit that the Court would infer, that that inquiry would also have prompted some further information about the relationship between the plaintiff and Mariam, which is also set in Ms Chakik’s affidavit. That, then, would have put Mariam in a position where her interests could be considered by the delegate in the manner envisaged and required by clause 8.3 of the direction. We say that not to take that simple step was unreasonable in all of the circumstances.
GLEESON J: Mr Hooke, just going back to appeal book 114, was there evidence that Mariam is within “your minor children (including biological children, adopted children, or step‑children)”?
MR HOOKE: Is there evidence?
GLEESON J: Yes.
MR HOOKE: Yes. It is in Ms Chakik’s affidavit.
GLEESON J: But is it that she is a stepchild or an adopted child? The evidence is that she is not a biological child.
MR HOOKE: No, she is not. She is the sister‑in‑law’s child, that is the sister of the plaintiff’s partner. She does not fit in to those categories, and nor indeed do the other two children who are mentioned on page 114.
GLEESON J: One of the inquiries that the delegate might have made was the provision of information to support her position as a biological, adopted, or step child?
MR HOOKE: Yes, although, interestingly, the form does not conform with the inquiry that is mandated by the direction, because the direction does not limit the minor children whose interests are required to be considered to ‑ ‑ ‑
GLEESON J: I think it does, because there is a provision on page 116 for other minor children.
MR HOOKE: Your Honour is quite right, yes. It is plain that the completion of the form in that respect does not marry up with the query at the head of the table on that page. One might, of course, as your Honour says, expect that the delegate might have raised that as a question, but it is just another factor that we say would aid in the proposition that it was unreasonable not to make some further inquiry.
GORDON J: I was going to ask another question about that, because on 117, in relation to those non‑listed children, it says:
Described in the attached documentation in my –
I assume it is:
immi account and in statement from –
Do you know what that actually says?
MR HOOKE: Your Honour, we do not. I suspect, though, that it is Halima Chakik, which is ‑ ‑ ‑
GORDON J: I see, thank you.
MR HOOKE: ‑ ‑ ‑ the mother of those three children identified at 114.
GORDON J: Thank you.
GAGELER J: Another strand of your argument on ground 1 is the fact that it has complied with Direction 90, or at least that is how it would be as in writing. Is that really a different point?
MR HOOKE: I am sorry, your Honour?
GAGELER J: Is it a different point from the failure to inquire?
MR HOOKE: No, it is not in reality. It really is a ‑ ‑ ‑
GAGELER J: It is either an unreasonableness ground or not, as you put it.
MR HOOKE: Not entirely, because we say that – and perhaps this feeds into the unreasonableness, but we say that the delegate cannot have done that which was required by clause 8.3 without having made the inquiry. We say that the inquiry should have been made, but we say, independently, that in failing to do so, the delegate failed to comply with 8.3. They are definitely interrelated, but one perhaps focuses more on the unreasonableness, the other perhaps focuses more on the constructive failure to exercise the jurisdiction.
GAGELER J: Thank you.
MR HOOKE: They do run together but – could I take your Honours briefly to the authorities. If your Honours have volume 2 of the book of authorities, the first is Minister for Immigration v Teoh 183 CLR 273, which is at tab 4 of volume 2. If your Honours would go to page 48 of the joint book of authorities, page 289 of the report, towards the foot of 289 about six lines up in the reasons of Chief Justice Mason and Justice Deane, their Honours say:
In Videto v Minister for Immigration and Ethnic Affairs, Toohey J, after observing that “[a]s a broad proposition, I do not think that the Act imposes an obligation on a decision‑maker to initiate inquiries”, went on to indicate that in some situations such an obligation might arise. In Prasad v Minister for Immigration and Ethnic Affairs, Wilcox J, with reference to s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), said –
And their Honours set out a well‑known passage from Prasad which I will not read to your Honours. Their Honours continued:
His Honour went on to express a tentative preference for the intermediate position –
That being that:
the court is entitled to consider those facts which were known to the decision‑maker, actually or constructively, together only with such additional facts as the decision‑maker would have learned but for any unreasonable conduct by him.
Their Honours continued:
Just as a power is exercised in an improper manner if it is, upon the material before the decision‑maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision‑maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.
Their Honours then express at least a tentative acceptance of the correctness of that approach in an appropriate case. The topic was picked up then in SZIAI which is in volume 3 of the joint bundle at tab 19, starting at page 440 of the book.
GAGELER J: Can we get the Commonwealth Law Report references as well, please?
MR HOOKE: Yes, your Honour. I do not believe it is in the Commonwealth Law Reports, your Honour. It is SZIAI ‑ ‑ ‑
GAGELER J: You are right, this is ALJR, yes.
MR HOOKE: It is 83 ALJR 1123.
GAGELER J: Thank you.
EDELMAN J: Which tab is that one, sorry?
MR HOOKE: Tab 19, your Honour.
EDELMAN J: Thank you.
MR HOOKE: Before coming to the expression of the principle in relation to inquiry, the reasons of the plurality at paragraph [18] on page 444 of the bundle emphasise that in this case proceedings before the Tribunal we would say a fortiori at least as much in the case of a delegate making a decision in the first instance:
proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision‑maker, is not itself a contradictor to the cause of the applicant for review.
Skipping the next sentence:
The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say, “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of section 414 of the Act, is to “review the decision” which is the subject of a valid application –
Here, of course, the core function is that in 501(1). Over the page at paragraph [25], having addressed Prasad and Teoh, the plurality said:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. 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. It is not necessary to explore these questions of principle in this case.
Their Honours say there are two reasons for that, and it is perhaps important to distinguish why they do not arise in this case. The first reason in paragraph [26] is:
there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result.
That is not this case, because we know from Ms Chakik’s affidavit that there was readily available information that would have been yielded by the most cursory of inquiries, frankly. At the top of the right-hand column, on 1129:
The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter . . . itself indicated the futility of further inquiry.
And that is not this case either, for the reason that I have just explained. That is why, in answer to the question Justice Edelman raised with me earlier and in discussion with Justice Gageler, we put it as a matter of unreasonableness, but we also couch it in terms of a constructive failure to exercise jurisdiction. That is the way that the deficiency that resulted from the unreasonable failure was characterised by the plurality in SZIAI.
EDELMAN J: Is not your alternative way, though, of characterising it, consistently with SZIAI, to put the bar in this case higher than your primary way? In other words, if 8.3 is interpreted consistently with the usual process of interpretation that the determination about cancellation or refusal under section 501 needs to be undertaken in a reasonable way consistently with Teoh then a conclusion that it was undertaken in a reasonable way would necessarily, would it not, mean that the jurisdiction had been exercised, or the process properly undertaken? In other words, it is one thing to say that an application of 8.3(1) is unreasonable and it seems at the moment, to me, that it is a much higher burden to say, well, there was no application of 8.3 at all.
MR HOOKE: Your Honour is probably right, and it is for that reason that we bifurcate ground 1 and either limb of it is sufficient for us to succeed.
EDELMAN J: Yes.
MR HOOKE: We put the argument in both ways, and I accept that, to a degree, they travel one with the other. But it really is, I suppose, a question of what the consequence of the unreasonable failure to inquire is and whether that is a matter of legal unreasonableness or whether it goes to the exercise of jurisdiction per se.
GLEESON J: The critical fact must be more than that the child was affected by the decision, must it not?
MR HOOKE: Yes, in that it – well, the critical fact is – for the delegate’s determination is, first of all, whether there is a minor child who is affected by the decision, or might be affected by the decision, and if there is, which we know there is, whether the interests of that child weigh in favour of the grant of a visa or against it, or whether it is neutral.
But either way, or in any of those three instances, the delegate has to make a decision and to do it in a circumstance in which the delegate knows that there is a representation about a minor child there and simply makes no inquiry, shuts their eyes to it, and somewhat glibly dismisses it on the basis that, well, maybe they are not even a minor child despite the clear representation that they were at 114 of the court book, we say is unreasonable and fails to engage with the question required under 8.3.
Could I then take your Honours to Uelese, which is in volume 2 of the court book at tab 5, it starts at page 82 of the book of authorities. It is at 256 CLR 203. What is said by the plurality in Uelese goes a long way to answering the approach of the Minister to this ground, which is basically to say, well, it was a matter for the plaintiff to put up his case, and if there were deficiencies in it then he lives with that outcome. It picks up on the same concepts that were dealt with by the Court in paragraph 18 of SZIAI, and at page 221 of the report, paragraph 61, in dealing with a similar submission the plurality said:
Counsel for the Minister developed a submission that the interests of the appellant’s two youngest children were not “relevant” to the Tribunal’s review within the meaning of cl 7(1)(a) of Direction 55. It was said that because the appellant had not included their interests in the case he sought to present to the Tribunal, their interests were not relevant. This submission should be rejected for a number of reasons. First, it depends upon a misreading of cl 7(1)(a) of Direction 55: the best interests of an applicant’s minor children in Australia are “relevant” if such children exist and that fact is known to the Tribunal.
That, of course, in the context of minor children, albeit not a biological or adopted child of the plaintiff is this case. Their Honours continued:
Secondly, the Minister’s submission seeks to import into the inquisitorial review function of the Tribunal notions appropriate to adversarial proceedings conducted in accordance with formal rules of pleading. That approach is inappropriate to the kind of review undertaken by the Tribunal.
A fortiori here:
In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, this Court cautioned against transposing the language and mindset of adversarial litigation to inquisitorial decision‑making of the kind authorised by s 500 of the Act. It is true, as the Full Court of the Federal Court rightly observed in Jagroop, that both s 500 of the Act and the AAT Act “contemplate participation by both the applicant and the Minister in the [Tribunal] hearing”. Section 500(6H) expressly contemplates that the applicant will present a “case”; and it is implicit that the Minister will also present a “case”. That having been said, it would be to give undue weight to conceptions drawn from adversarial litigation to accept that the Tribunal was not required to take into account the interests of the appellant’s two youngest children because he had not sought to advance their interests as a positive part of his case.
Whether or not the appellant sought to make the interests of those children a positive aspect of his case, the Tribunal was obliged by s 499 of the Act and the terms of Direction 55 to take into account the interests of any minor children of which it was aware in determining his application for review. By virtue of s 499 and Direction 55, one of the primary considerations for the Tribunal concerned the interests of children who were not themselves represented in the proceedings before the Tribunal. The requirement of cl 9.3 of Direction 55 to consider the best interests of minor children in Australia affected by the decision is imposed on decision‑makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her “case”.
Over the page, halfway down paragraph 65, their Honours continue:
The Minister argued that the paucity of evidence about the appellant’s two youngest children in consequence of the way the appellant’s case was presented meant that the Tribunal could not be satisfied one way or the other as to where the best interests of the appellant’s children lay. This aspect of the Minister’s argument must also be rejected.
It is apparent that the paucity of evidence referred to in the last sentence of the passage from the reasons of the Tribunal cited above was not due to the unavailability of material evidence. The Tribunal not only declined to act upon the information which was put before it by Ms Fatai, but it also failed to make even the most cursory inquiry to follow up on this information.
The information that was put before it, or sought to be put before it, by Ms Fatai, in that case, was information that had been served on the Minister inside the time required by section 500(6H) of the Act. The Tribunal determined in those circumstances that it would soldier on but not receive the evidence.
What is plain, though, in our submission, from that passage is that the plurality had in mind that where a like situation arose as here, and where there was a simple and easy means of inquiry, in this case, through open and responsive lines of communication with both the plaintiff and his representative, that sort of basic inquiry was required to be made. If there is no answer to the obligation to consider the interests of that child, there was a paucity of information on the material at that time before the decision‑maker. We say the same operates here.
The authorities were, on this issue, uniquely drawn together by Justice Nettle in Wei v Minister 257 CLR 22, which is in the same volume, volume 2, of the joint book at tab 6, at page 135 of the book of authorities, page 39 of the report. In paragraph 49, his Honour said, having dealt with other aspects of the case:
It does not follow, however, that there is nothing which can be done for the plaintiff. In Prasad v Minister for Immigration and Ethnic Affairs, Wilcox J held that, although it is not enough to establish jurisdictional error on the part of an administrative decision-maker that the court may consider that the sounder course for the decision‑maker would have been to make further inquiries, where it is obvious that material is readily available which is centrally relevant to the decision to be made, and the decision‑maker proceeds to make the decision without obtaining that information, the decision may be regarded as so unreasonable as to be beyond jurisdiction.
So, there is the unreasonableness aspect –
In Ex parte Helena Valley/Boya Association (Inc), Ipp J, sitting as a member of the Full Court of the Supreme Court of Western Australia, applied Wilcox J’s reasoning in Prasad in order to conclude that a local council had failed properly to apply its mind to the question which needed to be decided in determining whether to approve a planning application. In Minister for Immigration and Ethnic Affairs v Teoh, Mason CJ and Deane J expressly approved of Wilcox J’s reasoning in Prasad and of its application in appropriate cases. And in Minister for Immigration and Citizenship v Le, Kenny J surveyed the course of authority following Prasad and held that it was legally unreasonable for the Migration Review Tribunal to fail to make an obvious inquiry. Based on those decisions, in Minister for Immigration and Citizenship v SZIAI, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ similarly concluded that there may be circumstances in which a merits reviewer’s failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can be seen to supply a sufficient link to the outcome of review to constitute a constructive failure to exercise jurisdiction.
So, there is the constructive failure to exercise jurisdiction aspect. It is for that reason that we say that the authorities sort of move between different labels for perhaps the same complaint.
GAGELER J: Is it said on either side that section 501D and Regulation 2.53 of the Migration Regulations have any bearing on this issue?
MR HOOKE: Could I take your Honour’s question on notice?
GAGELER J: Yes.
MR HOOKE: We are not aware that the Minister says that it ‑ ‑ ‑
GAGELER J: The question arises from the first page of the form containing the relevant personal circumstances, page 109. That gives you the statutory framework for the provision of this information. If we are talking in terms of failure to exercise jurisdiction those provisions may be of some relevance. But you can possibly take that on notice.
MR HOOKE: I will take that on notice, if I may, your Honour. Your Honour, I apprehend that there is no – just looking at the context in which those provisions arose, there is no doubt in the power of the delegate to seek and obtain information as they see necessary. That would be the statutory basis of the power that we say ought to have been exercised and was, in respect of different issues.
I have already addressed the nature of the decision‑making process that was being undertaken, and the interactions between the delegate and the plaintiff and its representative, which is picked up at paragraph 8 of our oral outline, and also at paragraph 9, which deals with the material that we say would have been unearthed by the making of any inquiry.
I should say clearly that it is part of our submission that, had an inquiry even been made as to the date of birth and, to pick up Justice Gleeson’s point, also of parentage of Mariam, it is probable that – having regard to the representation that the plaintiff had, that the inquiry, even limited to those matters, would have provoked a response from the plaintiff, certainly from his representative, that engaged with the nature of the relationship as well. We say it is a very small step to take the hint from the inquiry about the age of the child to recognise that there was a deficiency in relation to the material concerning the nature and extent of the relationship.
We say that – as indeed has occurred in relation to the evidence in this Court, in response to the delegate’s decision, that an inquiry from the delegate would have provoked a similar response and a more fulsome one than simply the date of birth. The Minister takes a materiality point in relation to this ground. In our submission, it could not be gainsaid that the interests of a minor child, being a primary consideration under the direction assuming a finding, that the child’s best interests favoured the grant of a visa when weighed into the complex of matters in a case such as this could have led to a different outcome.
We know that there were a number of children who were considered by the delegate. In our submission, it would be to impose a level of artificiality on the holistic nature of the decision‑making process under this provision to suppose that a delegate might not have come to a different conclusion had they considered the interests of yet another child whose interests were affected by the decision.
Your Honours, could I then turn to ground 2? Ground 2 concerns what we say is an unreasonable double‑counting or double‑weighting of the issue of family violence. This ground involves a closer attention to the decision of the delegate. I would ask your Honours to take up that decision, starting at page 43 of the Court book. By way of background, at paragraph 5, your Honours see that the reason that the delegate is not satisfied that the plaintiff passed the character test was two suspended sentences of imprisonment for driving whilst disqualified. Over the page, at paragraph 11, the delegate says that:
As required by the Direction, I have taken into account the following matters as primary considerations –
and sets out the format as the subject of clauses 8.1, 8.2, 8.3 and 8.4. The delegate then turns, at paragraph 13, to the protection of the Australian community under clause 8.1. At paragraph 15, the delegate considers “Nature and seriousness of conduct” and says:
The Direction indicates that acts of family violence, regardless of whether there is a conviction . . . are viewed very seriously by the Australian Government and the Australian community.
Your Honours will notice that the seriousness with which those matters are viewed by the Australian Government are again picked up in 8.2 and by the Australian community in 8.4. At paragraph 16 and following there is a discussion of the facts of the domestic – family violence offending. At paragraph 18 your Honours see about five lines down that the plaintiff:
is stated to have pushed or grabbed the left arm of the victim. Mr ISMAIL let go . . . both parties sat down inside the house and continued their conversation . . . the argument continued to escalate with Mr ISMAIL standing over the victim. The victim . . . walked into the bathroom where she began crying and Mr ISMAIL is stated to have attempted to comfort the victim.
And she then left the premises “without further issue”. That is the first event. The second one is at paragraph 21. She was having a meeting at a house they were building:
the architect and plumbers . . . Mr ISMAIL appeared from inside the house and approached her yelling and screaming profanities. He walked up to the victim, bridging up with his face about ten centimetres from hers.
Over the page at 22 the delegate concludes:
I find these offences to be acts of family violence and therefore viewed as very serious –
There is then a discussion of the other offences, all of which were traffic offences. At 31, at the conclusion of 31, there was an issue about the completion of an arrivals card, but the finding is that he did not:
intentionally provide false or misleading information to the Department –
At 32:
I find that there has been a frequency to Mr ISMAIL’s offending. I find that while some of his offences are very serious and other are not as serious, cumulatively I find that they have had an impact on the community and, when viewed in totality, display a disregard for Australian laws and amount to very serious offending.
Then at 33:
Therefore, I find Mr ISMAIL’s offending conduct to be very serious in nature. I have attributed this consideration significant weight for refusal of Mr ISMAIL’s visa application.
Curiously, that is a limb which feeds into the consideration of the protection of the community when married together with the next section which deals with the risk to the community, but the delegate seems to have regarded it as something requiring independent weighting in paragraph 33. At 34 the delegate turns to the second limb of 8.1, the risk to the Australian community, and finds that, unsurprisingly, if there were future offending of a family violence nature it would have the potential to cause harm to members of the community.
Over the page at paragraph 40 through to 42 the delegate deals with remorse and rehabilitation and at 43 deals with Ms Heba Chakik’s position, both as his partner and as victim, and your Honours see what she had to say in paragraph 43. At 45 she and her family are regarded as a positive factor in his rehabilitation. At 48 it is recorded that the plaintiff:
never wants to be in a position again where his Australian visa is impacted.
At 49 the delegate says:
While I accept that Mr ISMAIL may have ceased his involvement in criminal activities in the last two years, when considering his overall criminal history which spans some ten years and included sentences of imprisonment, I note that Mr ISMAIL has had periods of time in the past where he has refrained from offending only to be involved in further more serious offending some years later.
Now, that of course is a reference to the traffic offences which were then followed by the family violence offences. It is not as though, despite the impression one might get from paragraph 49, he was involved in a criminal milieu with escalating criminal behaviour. The conclusion then follows:
the nature and seriousness of Mr ISMAIL’s conduct is very serious –
There were:
a number of factors that may have contributed in part to Mr ISMAIL’s offending behaviour . . . Mr ISMAIL has shown some insight and taken some thought towards rehabilitation.
But:
I have found that on balance there remains a likelihood that Mr ISMAIL will reoffend.
At 52:
Considering the nature and seriousness of Mr ISMAIL’s conduct, the potential harm to the Australian community should the non‑citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of Mr ISMAIL reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs significantly in favour of visa refusal in this case.
So, within that single consideration there are two points at which the delegate gives the family violence aspect negative weight. It may be that what was intended was to fold paragraph 33 into paragraph 52, but that is not what the delegate says. At paragraph 53 the delegate turns to the consideration in clause 8.2 of the direction, that is “Family violence conduct”. The delegate says at 53:
The Direction also requires decision-makers to consider, as a primary consideration, any family violence committed by a non-citizen with an application for a visa. In this regard, the Direction states that the Government has serious concerns about non-citizens who engage in family violence being given the privilege of entering or remaining in Australia.
Your Honours will recall the same attribution of concern to the government at paragraph 15 of the reasons in considering protection of the community under clause 8.1. At 58, the delegate finds, uncontroversially, that the plaintiff has engaged in conduct constituting family violence as defined in the direction, then considers the conduct and reviews again the statement of Ms Heba Chakik at paragraph 62, and traverses matters of remorse and rehabilitation at paragraph 63 and 64. The delegate observes at paragraph 65 that:
There is no evidence before me which indicates that Mr ISMAIL has engaged in any further acts of family violence since 23 November 2020, an I note that the enforceable ADVO expire on 31 August 2022 with no further breaches –
Then, concluding on 8.2, the delegate says at paragraph 66:
The Direction makes it clear that the problem of family violence is regarded very seriously by the Australian Government and the community –
Again, hark back to paragraph 15 –
but also states that ‘the Australian Government’s concerns regarding this consideration are proportionate to the seriousness of the family violence engaged in by the non-citizen’.
At 67, the delegate says:
Bearing this in mind, together with the above information concerning Mr ISMAIL’s specific conduct, I find that the family violence in this case should be regarded as serious. Accordingly, I have attributed this consideration significant weight in refusing Mr ISMAIL’s visa application.
So, that is an aspect, in our submission, of at least the second, if not the third, occasion on which the family violence offending has been brought to account in a significant way by the delegate, and this becomes relevant in relation to ground 3. The Minister describes the purpose of 8.2 and the finding at 67 as being to give weight to the conduct in its own right. Whatever that might mean. We will return to that in relation to ground 3 in due course, but where ‑ ‑ ‑
GAGELER J: Mr Hooke, when you speak in due course, your original estimate was an hour and a half in oral submissions. Are we getting through this?
MR HOOKE: Perhaps I will deal with ground 3 as we are here. We say that the nature of the conduct itself assumes significance in two ways under the direction. One is as a matter of protection of the community which is taken up under clause 8.1, the other is in relation to the expectations of the community arising from the conduct. It is uncontroversial that the same facts can bear upon different considerations viewed through different lenses with different perspectives.
But we submit that there is no legitimate purpose disclosed by 8.2, unless it be tied back to either the protection of the community or the community’s expectations, and if it be the case that 8.2 really attaches to one or the other of those then it is a clear case of double counting, not for the legitimate purpose of looking at things through different prisms for different purposes but simply to add weight for weight’s sake. We submit that that is impermissible, either because it involves some undisclosed but irrelevant consideration or because – as the delegate’s finding at 67 reveals, in our submission, because the inquiry is entirely backward‑looking, so, we would submit, not protective in nature.
It involves a punitive purpose which is impermissible, in our submission, in the context of administrative decision‑making and would offend the separation of powers. It is for that reason, we say, that if it be the case, as the Minister seems to submit in this Court, that 8.2 attaches weight to past conduct in its own right, to use the Minister’s words, then we say that that is punitive and impermissible, and that 8.2 is, for that reason, invalid.
If it be otherwise valid, we say that it involves an irrelevant consideration and causes the discretion under 501(1) to miscarry. The delegate at paragraph 76 turns then to clause 8.4, the “Expectations of the Australian community”. Your Honours ‑ ‑ ‑
EDELMAN J: Sorry, Mr Hooke, just trying to understand your ground 3. If you are right that Direction 8.2 is invalid because it is effectively a direction to engage in punitive conduct and could not be so authorised by 499 of the Act, that would not necessarily invalidate the decision, would it? All it would do is it would just say the decision, by reference to a concern of family violence, needs to be related back to the broad considerations that the Act permits regard to be had to.
MR HOOKE: Yes, subject to the unreasonableness, in our submission, of counting it again simply for the sake of it. Part of what we say in relation to ground 2 – and this is where the two grounds are opposite sides of the same coin in a sense, part of what we say in relation to ground 2, and we do not understand the Minister to contend otherwise, is that 8.2 does not, in fact, attach back to protection or community expectations. The Minister’s submissions, as we understand them, contend that 8.2 requires that the fact of family violence be given weight in its own right.
GORDON J: Just so I understand that, is it your contention that 8.2 does not permit reference back? I thought you were saying you wanted reference back.
MR HOOKE: We say under ground 2 that, if it is to be read as not having the punitive aspects that we say, in the alternative under ground 3, that it does, then we say it must then attach to either protection or expectations. And that, in so doing, what it does – if slavishly applied as the delegate seems to have done here, what it does is to unreasonably attribute weight to the same facts for the same purpose on multiple occasions. That is, if it attaches to protection, then it is already taken up in 8.1, so it effectively double‑counts in respect of protection. If it attaches to expectations of the community, that is already in terms taken up in clause 8.4, and so it has the same effect under clause 8.4 of double‑counting.
GLEESON J: But why is it that the Minister cannot simply express a value as an inherit value that does not need to be tested by reference to consequences and say this is a value that we are going to identify, which is that we do not welcome people who engage in family violence. And it does not require testing of whether people are injured, it does not require testing of whether it makes people in the community feel nervous. It is just a value that we are going to apply.
MR HOOKE: Your Honour, if it stood alone and did that purpose, then it may be a permissible exercise of the direction‑making power. But here those very factors are taken up in 8.1 and taken up in 8.4 in terms. Indeed, in 8.1, as the delegate said at paragraph 15 and on a number of other occasions in dealing with 8.1, it is a concern of the Government that this conduct should not occur. That expression is already found in terms in 8.1 and it is found in terms again in 8.4.
GORDON J: Do you accept that the considerations and matters that that are required to be considered overlap? What is the complaint then? You want to overlap but you do not want to overlap in a way which constrains the way in which they do the overlapping. It is apparent they overlap. You can see that in the way in which the delegate themselves have written the reasons for decision. They are clearly aware of the fact that these things have a multiple – these issues arise in different occasions in different ways and that I am not doing it in a box, I am not doing mechanically, I am trying to recognise that that there is overlap.
MR HOOKE: What we say about that is that it – I think I acknowledged at the outset of addressing this ground, that there is no doubt that matters overlap and can be looked at through different prisms for different purposes, and we accept that. But what we say here is that 8.2 really adds nothing to what is found in 8.1 and 8.4. What it does, in our submission, if applied as the delegate applied it here, which is almost by rote following the terms of the direction, is it introduces multiple occasions where the same factor is given weight for a purpose for which it has already been directly given weight. We say that that is unreasonable, irrational, illogical.
GAGELER J: Mr Hooke, we normally take a 15‑minute adjournment. Have you finished ground 1?
MR HOOKE: Ground 1, yes.
GAGELER J: Ground 2?
MR HOOKE: Almost ground 2, your Honour, yes.
GAGELER J: Almost. We might finish that first and then take the 15‑minute adjournment.
MR HOOKE: Thank you, your Honour. In relation to ground 2, to finish it up, could I give your Honours reference, by analogy, to Justice Perram’s decision in Bale v Minister [2020] FCA 646, it is in volume 3 of the joint book of authorities at page 185, tab 9. I say “by analogy” because there is no authority in point of which we are aware where this consideration has been dealt with in the way in which we have put it.
Justice Perram was dealing with a situation where the complaint was that the delegate had not considered that the interests of the applicant’s wife in her capacity also as a victim of her offending. To have been taken into account that she would be adversely affected by the decision as his wife, Justice Perram said, having recounted that background at paragraph 25, at 26:
I do not accept this argument because whichever way one looks at it, the fact that Mr Bale’s wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously . . . And, as [54] of the Tribunal’s reasons shows, the Tribunal was well-aware that she was one of his victims.
The only way to outflank that problem would be to submit that there was some aspect of the wife’s evidence as a victim which was different from her evidence as a spouse. Such evidence might be readily enough imagined . . . It may well be that evidence of that kind would have engaged cl. 14.4(1) independently of cl. 14.2(1)b).
There were similar expressions by the Full Court and the Federal Court in XXBN v Minister, which is not in the bundle. I will just give your Honours the reference to it: it is [2022] FCAFC 74, at paragraphs 52 and 53, where Justice Perram’s reasons in Bale were picked up and applied. What we say, by extension, of what Justice Perram said, is that just as a decision-maker is not required to take into account a matter for more than one purpose because, unless, as his Honours says at paragraph 27, there is a basis for looking at it through a different prism that it really be unreasonable to do so. We say, by extension of reasoning, that is what occurs under our ground 2.
To finish ground 3, could I ask your Honours to take up the decision of the Full Court of the Federal Court in NMBZ v Minister which is in volume 3 of the joint book, at tab 22. It is reported at 220 FCR 1, if I could invite your Honours to page 513 of the book, page 40 of the report, in paragraph 192 of Justice Buchanan’s reasons:
If the Minister’s decision was to avoid the charge that he was intent on some form of punishment (normally the preserve of the courts) then his assessment of whether the applicant should be granted a visa should also have been directed to some assessment of the consequences for the Australian community if the applicant was granted a visa. Normally, there should be an attempt to assess the likelihood of similar, or other, criminal conduct of the kind which had aroused the Minister’s displeasure and provoked the censorious conclusion that the applicant had demonstrated a fundamental disrespect for Australian laws, standards, and authorities. That is because the discretion to be exercised under s 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past.
Hence our complaint that if clause 8.2 operates for its own sake in its own right in the backward-looking way that the delegate applied it, then, in our submission, the appropriate inference to be drawn is that its purpose – and certainly its effect – in this case was a punitive way and not a legitimate one.
Can I just say briefly on that, the paragraphs that follow in Justice Buchanan go on to deal with the question of deterrence which had been raised by the Minister in that case as a justification for the consideration. That does not arise in this case. The Minister does not submit in this case that clause 8.2 is there for the purpose of deterrence. There is no submission that has been made, at least to this point, to the effect that it has a legitimate purpose in that respect, distinct from that of punishment.
So, when one looks at the following passages of Justice Buchanan and, indeed, in the joint reasons of Chief Justice Allsop and Justice Katzmann at paragraphs 28 to 31, that blurring of the line between deterrence as a legitimate purpose and deterrence as an element of punishment, does not need to trouble your Honours in this case. That deals with ground 3.
GAGELER J: Thank you. Very well. We will take our 15-minute adjournment at this stage.
MR HOOKE: May it please the Court.
AT 11.24 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.39 AM:
MR HOOKE: Thank you, your Honour. Your Honours, ground 4 concerns the final primary consideration, being the expectations of the Australian community. What we say is that, as a matter of principle, consideration of the expectations of the community as explained by clause 8.4 must involve the calibration of the weight to be given to that matter according to the circumstances of the particular visa applicant, and we submit that that did not occur here.
The delegate dealt with this issue at page 56 of the court book at paragraph 76 to 79, and your Honours will see that there is a description of what the direction requires. There is a reference in 77 to the “specified kinds of conduct” engaged in by the plaintiff, relevantly, again, “acts of family violence”. The delegate notes that he:
has engaged in conduct of that nature, I find that he raises serious character concerns and the community expectation described above applied in this case.
Paragraph 78 refers to the expectations applying “regardless” of whether there is:
a measurable risk of causing physical harm to the Australian community.
At 79:
I have proceeded on the basis that the Australian community’s general expectations about non‑citizens, as articulated in the Direction, apply in this case. I have attributed this consideration significant weight in favour of refusal of Mr ISMAIL’s visa application.
The reason we say that the individual circumstances of the plaintiff needed to be weighed in the balance here is well‑explained by two decisions of the Federal Court, which are in volume 3 of the joint book of authorities. The first is Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, which is at tab 15 of volume 3, starting at page 302, a decision of Justice Beach.
If your Honours turn to 307 of the joint book of authorities, paragraph 25 of his Honour’s reasons, his Honour sets out the passages from the – in this case, the Minister’s – reasons for dealing with community expectations. What your Honours will notice in passing is that paragraph 62 of the Minister’s reasons in that case, subject to variations to account for the names or visa cancellation or refusal, and the type of offending – paragraph 62 is identical to paragraph 76 of the delegate’s reasons in this case.
Paragraph 63 is identical to paragraph 77 of the delegate’s reasons in this case; paragraph 64 is identical to the delegate’s reasons in paragraph 78 in this case; and paragraph 68, the last four lines are identical to the delegate’s reasons in paragraph 79 in this case. The Minister in Kelly did refer to matters that might be attributable individually to Mr Kelly, but Justice Beach concluded that he had not taken them into account in ascribing weight to the consideration of the expectations of the community. Indeed, at paragraph 28, Justice Beach observed:
The Minister then went on to state and accept the following matters, but only after his finding of “significant weight” in [68]. The same obtains here in the structure of the delegate’s reasons. The matters personal to the plaintiff in this case commenced at paragraph 83 of the delegate’s reasons and followed. If your Honours would then turn to paragraph 97 of Justice Beach’s decision at the foot of page 322 of the joint book, his Honour – having discussed the Full Court of the Federal Court’s decision in FYBR – observed that it:
establishes that the community expectations consideration does not incorporate all the countervailing factors from the person’s specific circumstances.
And that is the submission that the Minister makes in this case, and we do not argue with that. However, his Honour went on to hold that:
Instead, these individual factors are brought to account when deciding what relative weight to give community expectations.
But the Minister, having found that “the broader Australian community’s general expectations . . . apply in this case” (at [68]), then and without any explanation and before anything else (see [69] et seq) immediately states that he “attributed this consideration significant weight against revocation of the cancellation of Mr Kelly’s visa”.
So too here. At paragraph 100 his Honour continues in the discussion of the personal factors and fact that they had been left out of consideration of the weight to be given to community expectations, made reference to:
the very serious impact of an adverse decision on him noting his medical diagnosis and inability to travel.
Of course, there are significant parallels in this case, because, as your Honours know, Mr Ismail is presently stateless and stranded in Lebanon, unable to have the follow‑up to the surgery performed on his eyes shortly before he departed, for understandable humanitarian reasons, so much so that when last the subject of evidence, he had lost the sight in one eye. So, there were compelling matters in this man’s personal circumstances that we say ought to have been weighed into the ‑ ‑ ‑
GAGELER J: What is this ground? Is it a misconstruction or misapplication of clause 8.4 of the direction? Is that the way you put it?
MR HOOKE: Your Honours, we say that it is an unreasonableness ground, and we also say that it is a failure to comply with the direction, and I will indicate why.
EDELMAN J: But the unreasonableness cannot be unmoored from any specific duty.
MR HOOKE: No, I accept that, your Honour. What we say is that the reading of Direction 90 that Justice Beach favoured, and Justice Bromberg also favoured in Ali, which is the next case I want to take your Honours to, is that it brings together clause 8.4 with paragraphs 5.1(2) and 5.2(5), each of which direct the decision‑maker to have regard to the individual circumstances of the case in applying the matters in the direction and undertaking the weighing process that is required, and we say that that simply did not happy in this case. As in Kelly, as in Ali, there was simply a lurch from a recitation of matters in which seems to be a fairly boilerplate way.
GLEESON J: Is the weighing not at paragraph 115, at 62 of the application book?
MR HOOKE: There is a weighing of the various considerations. But what your Honour will not find in the delegate’s treatment of 8.4 – other than by what I described as the “lurch” from the recitation to the attribution of significant weight adverse to the plaintiff – is any consideration of how or why it is that that weight comes to be attached. So, then when it comes to the overall weighing exercise that your Honour refers to at paragraph 115, the well is already poisoned in the sense that there has been an unreasonable, in our submission, attribution of weight in dealing with that primary consideration.
Again, we would simply say that those cases of Bale and XXBN are not to the point, as is helpfully indicated by what is said by Justice Halley in XSLJ. What is relevant to this case is the case of Demir, if there is any Federal Court authority on this proposition directly. But, as we have indicated, as a matter of general principle, there is no reason why a fact, issue or matter cannot be taken into account in respect of more than one of the considerations in the direction.
Now, it certainly cannot be said that in this case the delegate was not entitled to take into account family violence in respect of the government’s concern, to take it into account in respect of the protection of the community, and to take it into account in respect of the expectations of the community. Indeed, that was what the direction actually expressly required that the decision‑maker do.
Can I turn now to ground 3. This is the asserted punitive or irrelevant weighing of family violence. It is not clear to us how it is said that the weighing of family violence was done in some irrelevant way but, as to punitive, there is nothing in the actual decision record and the reasons which would suggest that the approach taken by the delegate in exercising the power under section 501(1) was with a punitive purpose. There is nothing stated by the delegate that indicates that the plaintiff, for instance, should be punished for having engaged in family violence, and nor could it be said that anything said by the delegate would lead to that conclusion by way of implication.
It has also been put against us that somehow there had to be some connection to either protection of the Australian community or expectations of the Australian community in order for consideration of family violence not to be punitive in some way. We would simply say, no, and this perhaps echoes a matter that was raised by your Honour Justice Gleeson. In our submission, it is permissible for the government, in terms of the direction, to set out a policy position about a concern that the government has about certain conduct and its inherent status.
There otherwise was a submission made in respect of comments of Justice Buchanan in NBMZ. That case was in a very different context to the present case, obviously. We should say Justice Buchanan was not in the majority and his views as expressed in the relevant passages to which your Honours were taken at paragraph 192 go further than what the majority said. In essence, if I can take your Honours to the relevant passage, which is in the authorities at volume 3, tab 22, and page 514 of the bundle ‑ ‑ ‑
GORDON J: Did you say 514?
MR KNOWLES: Of the bundle, yes – 192 starts on page 513 of the bundle. That was the passage that was read by our learned friends. But it is really 194 that sets out the position and the facts, also, that were relevant in a position taken by all three members of the Full Federal Court. That was ‑ ‑ ‑
GORDON J: Sorry, I am missing the point, Mr Knowles.
MR KNOWLES: Sorry, insofar as ‑ ‑ ‑
GORDON J: What does 194 show you that we did not know about before?
MR KNOWLES: The two other members of the Bench, Chief Justice Allsop and Justice Katzmann, also found error, but for reasons that were more confined than those of Justice Buchanan.
GORDON J: Thank you.
MR KNOWLES: So that what Justice Buchanan has found in 192 goes beyond what their Honours found, which is, perhaps, pithily set out in 194 –
that is, that there was a failure to deal with or make any assessment of what risk there would be to the Australian community if the applicant was granted a protection visa. That was not dealt with, and that was really the basis upon which there was error found by the court. What was said by Justice Buchanan at 192 does not reflect what was said by the court overall.
Just by way of perhaps emphasising this point, it is certainly so that when one looks at protection of the Australian community and is assessing protection of the Australian community by reference to future risk of harm occasioned by further offending or serious conduct, yes, that involves consideration of the future. It might do it by reference to events in the past to predict something in the future, but that will involve an assessment of the future. But that does not mean that every aspect of the direction itself must always be devoted to considerations exclusively looking to the future. So, to rely on NBMZ to suggest otherwise, we would say it is not a safe reliance in all the circumstances.
Can I turn now to ground 4 and the purported failure to consider personal circumstances. At the outset, I will just say that the two cases that are chiefly referred to by the plaintiff, being the cases of Kelly and Ali, are very different from the circumstances of this case in that there were specific representations or submissions made about the expectations of the community being different to those that were deemed in paragraph 8.4 of the direction by virtue of particular matters. No representation was made along those lines in this case – so, those cases stand in a separate category.
In any event, the underlying position that is put by the plaintiff on this ground is not made out in that personal circumstances were taken into account; they were weighed against the expectations of the Australian community as deemed under 8.4. It cannot be said that the applicant’s
circumstances were not taken into account for the purposes of paragraph 8.4. They were, in the sense that he was found to have engaged in certain conduct that meant that it was serious conduct raising serious character concerns such that particular parts of paragraph 8.4 were engaged which would not have otherwise been engaged. So, there was a consideration of the plaintiff’s specific circumstances in applying paragraph 8.4.
There is, in the circumstances, no tension between 8.4 and paragraph 5.1, which goes to considering the specific circumstances of the case in exercising the discretion. In any event, when one looks at exercising the discretion overall, the specific circumstances of the case were taken into account and weighed in the balance with those community expectations, as one sees at the end of the delegate’s decision in paragraphs 111 to 115.
Just briefly going to that now, at page 62 of the application book. There, as your Honours will see, at paragraphs 111 to 115 there is a consideration of matters in favour of not refusing the visa application. And, in particular at paragraph 113, there is a reference to various matters that would weigh in favour of not refusing, and they are weighed against the matters in paragraph 114. At 115 there is an overall conclusion reached as a result of that weighing process.
So, we would say, in effect, what the plaintiff actually asks or says that the decision-maker should have done in this case in respect of those particular circumstances is what the plaintiff says the decision-maker did but should not have done in respect of family violence. That is, ground 4 relies on an argument that there should have been consideration and weighing of personal circumstances in a repetitious, duplicative way on two occasions.
Otherwise, in respect of ground 4, it cannot be said that there has been any misconstruction or misapplication of paragraph 8.4. Paragraph 8.4(4) is quite clear about the way in which that consideration is intended to operate as reflecting the expectations of the community as a whole and not the expectations of the community in some more limited or confined sense as indicated by particular evidence that might be put forward in some other case. Unless there was anything further, they are the submissions for the defendant. Thank you, your Honour, we otherwise rely on what is set out in writing in the written materials.
GAGELER J: Thank you. Mr Hooke.
MR HOOKE: Thank you, your Honour. Just dealing with a couple of factual matters, Justice Gleeson raised a question in relation to the plaintiff’s citizenship. Reference was made to the Personal Circumstances Form at – I am sorry, to the application for a visa. It is also picked up in the travel document, which is at page 33 of the court book, which your Honours will see is described as a “travel document”, not a passport; also at application book 110 in the Personal Circumstances Form where he describes having no citizenship; and at application book 132 in paragraphs 22 to 24 of his statement where he describes his circumstances as a Palestinian refugee in Lebanon.
Our learned friend by way of overview of the direction took the Court to clauses 5.1(2) and 5.2(5), which required the decision‑maker to address the individual circumstances in applying the various clauses of the direction. That, with respect, is precisely our complaint in relation to ground 1 and ground 4 and, as I said in answer to Justice Jagot in‑chief, those clauses homogenise the specific matters taken up in the particular primary considerations to which we refer, with the overarching obligation to consider each of those matters in the context of the circumstances of the particular visa applicant.
In relation to ground 1, it is true that there was a degree of urgency being urged in relation to the making of this decision. That was for obvious reasons. However, the urgency did not preclude the delegate or the Minister from making proper inquiries, and indeed it did not as a matter of fact. The decision, as it was, was five and a half months in the making. There were numerous exchanges of correspondence, as has been demonstrated, and that does not, in our respectful submission, foreclose the obligation of the defendant to make a decision according to law or to make the inquiry about Mariam.
In relation to the reliance the Minister puts on the legal assistance that the plaintiff had at the time, your Honours will see – I do not ask your Honours to take it up now – but at pages 395 and 396 of the application book, in which pages of the affidavit of the plaintiff appear, but in reverse order – paragraph 16 explains that the legal assistance he was receiving was in the context of some pro bono assistance with the proceedings that the Tribunal determined that lack jurisdiction to deal with.
So, that was the context in which there some assistance being given at the level of the delegate. I raise that because the Minister places such reliance on it and it would be unfair, in our respectful submission, to place great responsibility at the feet of a representative offering pro bono assistance in the context in which it was being provided.
Our learned friend then went to Uelese and said it is open to a decision‑maker to make a neutral finding on the best interests of a child, and that is so, we accepted that in‑chief. But that is not what happened here because, as your Honours know from paragraph 75 of the Tribunal’s reasons, the Tribunal did not even get to the point of accepting that the child was a minor, which rather begs the question how it could then be said that what the Tribunal did was to consider the interests of a minor child and make a finding – neutral or otherwise – in relation to their best interests. That point was not even reached. So, in our submission, this case is, if anything, stronger than Uelese and quite readily distinguishable from Paerau.
Justice Gordon asked our learned friend whether another way of putting the Minister’s position was that the delegate had considered clause 8.3 and made a finding on the material before it. We say, for the reasons I have just articulated, not so in this case because they did not get to that point. My learned friend then sought to distinguish SZIAI on the basis that it was a Tribunal decision but, of course, as your Honours know, what the Tribunal was tasked with doing was to review the original decision and redo it in the position of the original decision‑maker. So, there is no distinction to be drawn there. If anything, again, the position of the level of the delegation, in our submission, is even more inquisitorial than the position of the Tribunal.
Our learned friend submitted that it was not unreasonable to make even a desirable inquiry, and that might be accepted. But in this case, in our submission, unreasonableness is established by four steps. First, there was an obvious inquiry to be made. Secondly, there was a critical fact in relation to the status and age of the child. Thirdly, the information was readily ascertainable, for the reasons we have already given. Fourthly, the inquiry could, and in our submission would, have yielded useful results, for the reasons we have already given. That chain of reasoning, in our submission, leads to the conclusion of unreasonableness.
In addressing ground 2, my learned friend notably gave no attention to the reasons of the delegate. The Minister sought to address this ground entirely at the level of abstraction of the direction, and, in our submission, that is telling. That is telling for the reasons that your Honours know, from the numerous occasions in the delegate’s reasons where separate weight was attributed to the same factors.
That is not to say – as seems to be attributed to us – that we dispute that a single set of facts can have different complexions. We accepted that upfront. But in this case, in a context where our learned friend says that clause 8.2 reflects a policy view of the government as distinct from community expectations, arising out of the seriousness of the conduct, that
is precisely the same matter that is described in clause 8.1.1(1) in terms. That, with respect, makes good our submission that this is in fact not a case of looking at the same thing from different perspectives, but the same thing repetitively.
Justice Gageler raised a question about the invalidity argument in ground 2. We did not press that in oral submissions for the reason that neither party has contended in this case that clause 8.2 permits or requires repetitive counting. On that basis, the question of invalidity does not arise. In relation to ground 3, our learned friend seeks to sideline NBMZ by reference to the Chief Justice and Justice Katzmann. We gave your Honours reference to their treatment of that issue at paragraphs 28 and 31 in‑chief. That is a different proposition not raised here, about deterrence.
Ground 4, our learned friend says the delegate did weigh individual circumstances at paragraph 113, and then seeks to turn our ground 2 on us in relation to the use of personal circumstances. But it takes no imagination, with respect, to see that the personal circumstances being considered under the other considerations of hardship impediments if left in Lebanon and the like is to view those matters through an entirely different prism of perspective to that described by Justice Beach and Justice Bromberg in Kelly and Ali, where one is looking at how one would bring those matters to bear in adjusting the weight to be given to community expectations.
That is an entirely different angle from which to view those individual circumstances, so we do not fall over our own argument, as the Minister would have it. I am corrected, your Honours. The reference to 8.1.1 being the statement of government policy on family violence should be a reference to clause 8.1.1(1)(a) of the direction.
Unless there is anything further, those are our submissions.
GAGELER J: Thank you, Mr Hooke. The Court will reserve its decision in this matter and will adjourn until 9.45 am tomorrow.
AT 3.04 PM THE MATTER WAS ADJOURNED
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