Le v Minister for Immigration
[2018] FCCA 3275
•15 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LE v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3275 |
| Catchwords: MIGRATION – Bridging visa E – applicant convicted of multiple, serious criminal offences – applicant with a child in Australia – ministerial direction 63 – best interests of applicant’s child considered by the tribunal – application dismissed. |
| Legislation: Migration Act 1958, ss.116, 499 Migration Regulations 1994, reg.2.43 Ministerial Direction No.63. |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Nweke v Minister for Immigration and Citizenship [2012] FCA 266 Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34 QSVS v Minister for Home Affairs [2018] FCAFC 124 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5 |
| Applicant: | HY HOANG LE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 308 of 2018 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 10 September 2018 |
| Date of Last Submission: | 10 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 15 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms L Lopiccolo |
| Solicitors for the Applicant: | JT Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr C Tran |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 6 February 2018 and amended on 20 August 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 308 of 2018
| HY HOANG LE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case concerned the Administrative Appeals Tribunal’s decision to affirm the minister’s delegate’s decision to cancel the applicant’s bridging visa.
The delegate cancelled the applicant’s bridging visa by reason of the applicant’s convictions for drug related offences, for firearm offences, for driving offences and for the offence of dealing with property suspected of being the proceeds of crime.
The applicant contended that the tribunal failed to adequately consider the elements of direction 63 made under s 499 of the Migration Act (“Act”). In particular, the applicant asserted that the tribunal failed to consider the best interests of any children in Australia who may be affected by the visa cancellation. The applicant argued that he had a two year old son at the time of the tribunal’s decision and that his son would be adversely affected by the visa cancellation.
The minister resisted this application for judicial review. The question for me was whether the applicant’s grounds of judicial review were made out.
Synopsis
For the reasons that follow, in my judgment the tribunal did not fall into error on any of the grounds alleged with the consequence that this application for judicial review must be dismissed and the applicant must pay the minister’s costs.
Relevant factual setting
The applicant, a citizen of Vietnam, arrived in Australia in 2009 as the holder of a student visa. On 5 December 2012 he was granted a bridging visa. On 21 December 2012 he applied for a partner visa. On 28 December 2012 he was granted a further bridging visa.
On 24 August 2016 the applicant was refused the partner visa he sought. The tribunal affirmed that decision. I was told that an application for judicial review is pending in this court in relation to that decision by the tribunal.
Information became available to the minister’s delegate about the applicant’s history of offending contrary to the criminal law. The following is a summary of his previous convictions –
a)on 18 March 2013 the applicant was convicted of possessing amphetamine;
b)on 18 March 2013 the applicant was convicted of dealing with property suspected of being the proceeds of crime;
c)on 6 August 2014 the applicant was convicted of possessing amphetamine;
d)on 6 August 2014 the applicant was convicted of dealing with property suspected of being the proceeds of crime;
e)on 6 August 2014 the applicant was convicted of possessing amphetamine;
f)on 6 August 2014 the applicant was convicted of possessing ecstasy;
g)on 6 August 2014 the applicant was convicted of possessing methylamphetamine;
h)on 6 August 2014 the applicant was convicted of possessing cartridge ammunition without a licence or permit;
i)on 6 August 2014 the applicant was convicted of possessing a controlled weapon without an excuse;
j)on 6 August 2014 the applicant was convicted of dealing with property suspected of being the proceeds of crime; and
k)on 6 August 2014 the applicant was convicted of driving while suspended.
On 17 July 2017 the minister’s delegate gave the applicant notice of intention to cancel the applicant’s bridging visa under s 116(1)(g) of the Act. After an interview conducted that day, the minister’s delegate cancelled the applicant’s bridging visa on 17 July 2017.
Relevantly paraphrased, s 116(1)(g) of the Act authorises the minister to cancel a visa if satisfied, among other things, that a prescribed ground applies to the visa holder for cancelling the visa. Conviction of an offence against a law of the Commonwealth, a state or a territory is a prescribed ground for cancelling a bridging visa.
The delegate cancelled the bridging visa in the exercise of the power to do so under s 116(1)(g) of the Act.
The applicant applied to the tribunal for a merits review on 24 July 2017. On 28 November 2017 the applicant’s representative filed written submissions with the tribunal inviting the tribunal to not exercise the discretion to cancel the visa. In support of that submission the applicant’s representative contended that –
a)the offending was not serious;
b)the applicant would seek psychiatric help for his drug addiction;
c)the applicant’s two year old son would be adversely affected by any cancellation of the applicant’s visa;
d)the applicant’s wife would be likewise adversely affected by any cancellation of the visa;
e)the applicant required treatment for his addiction;
f)the applicant’s wife supported the applicant; and
g)the applicant undertook courses while in detention.
The tribunal convened two hearings, each of which was attended by the applicant. The applicant, the applicant’s wife and the applicant’s mother-in-law gave evidence with the assistance of an interpreter. After the hearing, the applicant provided post-hearing material that addressed the coursework the applicant had undertaken while in detention.
The tribunal affirmed the delegate’s decision on 18 January 2018.
The more important aspects of the tribunal’s reasons have been set out below.
The tribunal recorded in paragraph 10 of its reasons that the applicant admitted his previous convictions.
Between paragraphs 12 and 15 of its reasons, the tribunal addressed the discretion it possessed and stated it was required to apply direction 63 by operation of s 499 of the Act and that direction 63 prescribed applicable primary and secondary considerations.
Between paragraphs 17 and 20 of its reasons the tribunal stated it found that the applicant’s evidence as well as his wife’s evidence concerning the applicant’s convictions, his addiction and their family life was credible and the tribunal accepted their factual account of the circumstances of the case.
The tribunal said in paragraph 23 of its reasons that the presence of the applicant in the child’s life brought with it a real risk, stating that the applicant continued to take drugs during his wife’s pregnancy and during his son’s early years.
In paragraph 26 of its reasons the tribunal stated that the applicant’s wife would encounter difficulty in raising a child on her own and that the hardship described was not unknown among persons with a parent in prison and they overcome those problems.
The tribunal considered the best interests of the child and gave it limited weight against the cancellation of the visa. Further, the tribunal considered the impact a visa cancellation might have on the family unit and the tribunal gave that consideration limited weight.
Between paragraphs 32 and 33 of its reasons the tribunal considered the allegation that the applicant would suffer hardship. Between paragraphs 34 and 37 of its reasons the tribunal gave significant weight in favour of cancelling the visa because the applicant had taken drugs despite having an extensive support network, then he evaded authorities for two and a half years.
Between paragraphs 39 to 43 of its reasons the tribunal considered the evidence of the applicant’s mother-in-law, of the courses he had undertaken and his migration history.
The tribunal determined to cancel the visa.
In this court
On 6 February 2018 the applicant applied to this court for judicial review of the tribunal’s decision. With leave, he amended his application to include four grounds. He told me he did not press the fourth ground. The three grounds that he did in fact press were as follows –
1.The Second Respondent failed to accord natural justice to the Applicant by failing to provide procedural fairness.
PARTICULARS
a.The Second Respondent failed to identify and consider the best interests of the child.
b.The Second Defendant failed to assess whether the strength of any other consideration or the cumulative effect of other considerations outweighed the primary consideration of the best interests of the child.
c.The Applicant was had a legitimate expectation that the Minister would treat the best interest of his children as a primary consideration in deciding whether not to cancel his visa.
2.The Second Respondent
was affected by jurisdiction error in that it identified various wrong issues andfailed to consider relevant evidence;PARTICULARS
a.The Applicant gave evidence to the Tribunal that:
(i) He was clean and had not taken drugs for 6 months since he was incarcerated;
(ii) His wife becoming pregnant with their son was ‘motivation that helped him quit the drugs’;
(iii) He had always prioritised his parental responsibilities over his drugs;
b.The Applicant’s wife also gave evidence to the Tribunal that:
(i) the Applicant ‘did not use drugs at home’;
(ii) at ‘no stage did [the Applicant’s] drug addiction affect her or the child directly.’
c.Ms Pham also gave evidence that the child needs a mother and a father together for their growth.
d.The Tribunal failed to have regard to this evidence when considering the primary considerations in Ministerial Direction No.63.
e.This evidence was material to any consideration of the best interests of the child as a primary consideration.
f.The failure to take it into account led the Tribunal into error and that error had an adverse effect on the Tribunal’s weighing of considerations in determining whether the bridging visa should be cancelled;
g.
Second Respondent had failed to have regard to crucial evidence concerning the child’s best interests outweighed cancellation of the visa.3.The Second Respondent failed to comply with Ministerial Direction No. 63 in contravention of s499(2A) of the Migration Act 1958.
PARTICULARS
a.By virtue of s.499(2A) of the Migration Act 1958, the Tribunal must comply with Ministerial Direction No.63.
b.Ministerial Direction No.63 required the Tribunal to take into account the best interests of the Applicant’s child as a primary consideration,
c.Ministerial Direction No.63 provides that the best interests of the child is generally to be given greater weight than any secondary consideration.
d.The Second Respondent’s decision was affected by legal error as the Second Respondent failed to adequately consider or take into account and/or give genuine consideration to the
grounds upon which the Applicant’s claim is made in thebest interest of the child.It is necessary to address in turn each of the three grounds pressed. Counsel for the applicant grouped grounds 1 and 3 into the one ground, to which the minister responded in like manner, so I shall similarly address grounds one and three as a single ground then ground two as the other ground, ground four having been abandoned.
Grounds 1 and 3
Under these grounds, the applicant put in issue the tribunal’s compliance with its procedural fairness obligations. The applicant contended that pursuant to s 499(2A) of the Act, the tribunal was required to comply with direction 63 and that, according to the Full Court’s decision in Lafu v Minister for Immigration and Citizenship,[1] a failure to comply with such a direction constitutes jurisdictional error. The applicant argued that the tribunal was specifically required to consider the best interests of the applicant’s child. Specifically, so the applicant said, that called for the tribunal to address four discrete matters, without which the tribunal did not discharge its statutory obligations. According to the applicant –
a)as was held in Vaitaiki v Minister for Immigration and Ethnic Affairs[2] the decision-maker was required to identify what are the best interests of the child;
b)as was held in Lesianawai v Minister for Immigration and Citizenship,[3] it is insufficient for the decision-maker to merely consider factors relevant to a child’s best interests without reaching a clear conclusion in that regard;
c)as was held in Nweke v Minister for Immigration and Citizenship,[4] it is insufficient for the decision-maker to engage in generalisations about the child’s wellbeing without specifically engaging in the circumstances of the case to hand; and
d)as was held in Wan v Minister for Immigration and Multicultural Affairs,[5] a decision-maker is required to make an unequivocal finding on the evidence before it about what is in the best interests of the child, then the tribunal must weigh that evidence against the considerations in direction 63.
[1] [2009] FCAFC 140
[2] [1998] FCA 5 (at 26)
[3] [2012] FCA 897, the minister’s appeal was upheld in [2014] FCAFC 141 but on different grounds
[4] [2012] FCA 266
[5] (2001) 107 FCR 133
The applicant argued that in this case the tribunal failed to comply with several of those stipulations. Having said that, the applicant recognised that the law required the tribunal’s reasons to be read fairly and as a whole with an eye to substance rather than form. In support of that last proposition, the applicant called in aid learning of undeniable veneration in such cases as Minister for Immigration and Citizenship v SZGUR,[6] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs,[7] SZDXZ v Minister for Immigration and Citizenship,[8] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[9] and Minister for Immigration and Multicultural Affairs v Yusuf.[10]
[6] (2011) 241 CLR 594
[7] (2003) 236 FCR 593
[8] [2008] FCAFC 109
[9] [2000] HCA 1
[10] (2001) 206 CLR 323
The applicant cast his case on the basis that the tribunal failed to comply with direction 63. Specifically, in written submissions it was put for the applicant that the tribunal failed to clearly decide what the best interests of the child were. Counsel for the applicant argued that the tribunal was required to make findings about –
a)what was in the child’s best interests in the circumstances;
b)how the child would benefit from the applicant’s involvement in the child’s life or had benefited from having the applicant as the child’s full-time carer;
c)why the applicant’s involvement in the child’s life would or would not be beneficial to the child in the specific circumstances of the family unit;
d)how the child would be impacted by the applicant’s visa being cancelled; and
e)the needs of the child that could or could not be met without the applicant’s involvement.
Concepts of “best interests of the child” are well known in family law jurisprudence. I raised with both counsel in this case whether it was necessary, desirable or even permissible to import the jurisprudence on best interests of the child as propounded in family law into this discrete arena of migration law. Both counsel emphatically instructed me to ignore family law jurisprudence on point. I have done so.
On behalf of the minister, Mr Tran of counsel contended that the tribunal did not fall into jurisdictional error in this case. While conceding that the tribunal’s statement at paragraph 23 of its reasons was not “a model of clarity” (his words), Mr Tran submitted that the tribunal correctly summarised its task between paragraphs 12 to 15 of its reasons. Mr Tran then sought to distinguish the decisions of the Federal Court in Nweke as well as in Spruill v Minister for Immigration and Citizenship.[11] Mr Tran placed reliance upon the decision in QSVS v Minister for Home Affairs,[12] upheld by the Full Court,[13] in arguing that the tribunal is permitted to treat a child’s best interests as a primary consideration while giving it less or limited weight in the circumstances of the case and that if it did that, it did not thereby fall into jurisdictional error.
[11] [2012] FCA 1401
[12] [2018] FCA 524
[13] QSVS v Minister for Home Affairs [2018] FCAFC 124
In my view, any consideration of this issue must commence with the terms of the legislation itself and of relevant subordinate legislation. That involved a consideration of s 116(1)(g), s 499(1) and s 499(2A) of the Act as well as reg 2.43 of the Migration Regulations (“regulations”) and direction 63.
Let me go first to the relevant provisions of the Act. The prescribed ground for the cancelling the visa in issue in this case, as mentioned in s 116(1)(g) of the Act, was set out in reg 2.43 of the regulations, specifically reg 2.43(1)(p) or 2.43(1)(q). Of the two, reg 2.43(1)(p) was relevant here. Paraphrasing that regulation, the prescribed ground for the purposes of s 116(1)(g) is that in respect of the holder of a bridging visa the minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a state or a territory or the holder of the bridging visa has been charged with an offence against a law of the Commonwealth, a state or a territory.
Direction 63 was given in pursuance of the power conferred by s 499(1) of the Act. Under s 499(2A) a body must comply with a direction given under s 499(1). On 4 September 2014 the then Minister for Immigration and Border Protection, the Honourable Scott Morrison MP, gave direction 63. That direction is structured in such manner that its name is given in cl 1, its commencement date is given in cl 2, its content is set out in cl 3, its objectives, general guidance and principles are set out in cl 4, the prescribed grounds under reg 2.43(1)(p) are set out in cl 5 along with a statement of how to exercise the discretion. In cl 6 primary considerations are set out and in cl 7 secondary considerations are set out.
In cl 6(1)(b), the best interests of children under the age of 18 who would be affected by the visa cancellation is a primary consideration that the decision-maker is required to take into account. An elaboration of that concept is given in cl 6.2(a). That clause provides that in considering the best interests of the child, decision-makers should have regard to the fact that the cancellation of a bridging visa E under the prescribed grounds in reg 2.43(1)(p) or (q) does not necessarily represent the final resolution of a person’s immigration status in Australia.
Clause 7 of direction 63 set out what it described as “secondary considerations”. They were fivefold. By its terms each had to be taken into account. The word “must” appeared in cl 7(1). The first was the impact of a decision to cancel the visa on the family unit. The second was the degree of hardship that may be experienced by the visa holder if their (poor grammar - I took it to mean his or her) visa is cancelled. The third was the circumstances in which the ground for cancellation arose. The fourth was the possible consequence of cancellation including but not limited to certain matters. The fifth was any other matter the delegate considered relevant. Those were secondary considerations that the decision-maker had to take into account. The question in this case was whether the tribunal in fact took into account the primary considerations as well as the secondary considerations. In assessing whether the tribunal properly considered cl 7, I was required to take into account that generalisations about the child’s wellbeing were insufficient,[14] that a clear conclusion on the child’s best interests had to be reached,[15] that the best interests of the child had to be identified,[16] and that an unequivocal finding on the evidence had to be made then those findings had to be weighed against the elements of direction 63(1).
[14] Nweke v Minister for Immigration and Citizenship [2012] FCA 266
[15] Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897
[16] Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5
Paragraphs 21 to 43 were the source of the tribunal’s treatment of the evidence of those matters.
In my view, the tribunal addressed the primary considerations of the best interests of the child. It did so in paragraphs 13 and 15 of its reasons. In paragraph 15 of its reasons the tribunal properly recorded the attribution of importance in primary and secondary considerations reposed in cl 5 of direction 63. In paragraphs 16 and 17 of the reasons the tribunal addressed the circumstances of the applicant’s offending.
Between paragraphs 21 and 26 of its reasons, the tribunal turned to a consideration of the matters set out in cl 7(1)(a) of direction 63, namely the impact of a decision to cancel the visa on the family unit. The applicant asserted that no clear conclusions were reached in those paragraphs, that the best interests of the child were not identified and that no unequivocal findings were made prior to the weighing process contemplated by direction 63.
In my view the tribunal did in fact make a factual finding about the impact of a decision to cancel the visa on the family unit. The tribunal said in paragraph 23 that it was preferable for the child to have a father in his life but that was not without risks. The tribunal addressed the applicant’s wife’s evidence that she found it hard not to have her husband around to help her raise their son. That was in paragraph 25. In paragraph 26 the tribunal spoke of financial hardship the wife will experience. The issues the tribunal considered in those paragraphs went to the impact on the family unit of visa cancellation. That was the gravamen of cl 7(1)(a). To the contention that no conclusion was reached about that issue or that the tribunal engaged in generalities, I disagree. The tribunal accepted that the wife would experience financial hardship and that it was difficult to raise a child on her own. It then gave those matters limited weight. The weighing process was undertaken in the manner prescribed by cl 5.
The tribunal was required to address the element in cl 7(1)(b) concerning the degree of hardship that may be experienced by the visa holder if the visa were to be cancelled. In paragraph 31 the tribunal addressed the hardship the applicant identified, namely his family and the consequences upon them of his separation from them. In paragraph 33 the tribunal accepted that evidence. It could not be said that the tribunal engaged in some generalised ephemeral assessment of the issue. It then engaged in the weighing process. There was no error in it so doing.
Between paragraphs 34 and 37 the tribunal addressed the element in cl 7(1)(c) of direction 63. The tribunal found that those circumstances were serious. It gave strong weight in favour of the cancellation on that basis. That was open for it to do.
In paragraph 38 of its decision the tribunal stated there were no possible consequences of cancellation.
Between paragraphs 39 to 42 the tribunal addressed other considerations, as cl 7(1)(e) required. It made no error in doing that.
In my view the tribunal correctly addressed the matters it was required to address. I reject ground one.
Ground 2
Ground 2 was in the following terms –
The Second Respondent was affected by jurisdiction error in that it identified various wrong issues and failed to consider relevant evidence;
PARTICULARS
a.The Applicant gave evidence to the Tribunal that:
(i) He was clean and had not taken drugs for 6 months since he was incarcerated;
(ii) His wife becoming pregnant with their son was ‘motivation that helped him quit the drugs’;
(iii) He had always prioritised his parental responsibilities over his drugs;
b.The Applicant’s wife also gave evidence to the Tribunal that:
(i) the Applicant ‘did not use drugs at home’;
(ii) at ‘no stage did [the Applicant’s] drug addiction affect her or the child directly.’
c.Ms Pham also gave evidence that the child needs a mother and a father together for their growth.
d.The Tribunal failed to have regard to this evidence when considering the primary considerations in Ministerial Direction No.63.
e.This evidence was material to any consideration of the best interests of the child as a primary consideration.
f.The failure to take it into account led the Tribunal into error and that error had an adverse effect on the Tribunal’s weighing of considerations in determining whether the bridging visa should be cancelled;
g.Second Respondent had failed to have regard to crucial evidence concerning the child’s best interests outweighed cancellation of the visa.
Under this ground the applicant asserted that the tribunal failed to consider that the applicant had been drug free since incarceration and that his wife’s pregnancy had helped him to desist in taking illicit drugs. The applicant said that according to authorities such as VAAD v Minister for Immigration & Multicultural & Indigenous Affairs[17] and ATP15 v Minister for Immigration and Border Protection[18] the nature of a particular document and the circumstances of a particular case will determine whether the tribunal was required to consider a particular document or a particular item of evidence. In turn, other authorities have held that the cogency of any corroborative material and the place of that material in the assessment of an applicant’s claim will be among relevant factors, as was held in such cases as Minister for Immigration and Citizenship v SZRKT,[19] Minister for Immigration and Border Protection v SZSRS,[20] Minister for Immigration and Border Protection v MZYTS[21] and Pokharel v Minister for Immigration and Border Protection.[22]
[17] [2005] FCAFC 117
[18] (2016) 241 FCR 92
[19] (2013) 212 FCR 99
[20] [2014] FCAFC 16
[21] (2013) 230 FCR 431
[22] [2016] FCAFC 34
In this case the applicant argued that certain evidence of the applicant, of the applicant’s wife and of the applicant’s mother-in-law was relevant to a consideration of the best interests of the child and that the tribunal failed to have regard to that evidence. Specifically, the applicant said the tribunal failed to have regard to –
a)the applicant being drug free while incarcerated;
b)the applicant’s wife’s pregnancy being of assistance in the applicant being drug free;
c)the applicant placing his parental responsibilities ahead of his drug taking;
d)the applicant’s drug addiction not directly affecting the applicant’s wife or child; and
e)the child’s need for both parents to remain together.
At once let me state that the tribunal’s omission to refer to every item of evidence adduced does not lead to an inference that the evidence was overlooked. Nor is the tribunal required in its reasoning to record every item of evidence adduced. As the Full Court stated in Minister for Immigration and Border Protection v SZSRS,[23] the issue is whether the particular matter or evidence that has been omitted from the reasons can sensibly be understood as a matter considered but not mentioned because it was not material.
[23] [2014] FCAFC 16
It seemed to me that the tribunal was very aware of the applicant’s drug addiction. The tribunal referred to it in paragraphs 18 and 19 of its reasons. I do not accept that the tribunal’s omission to address in terms the matters mentioned in paragraph 30 of the applicant’s written submissions (paraphrased two paragraphs above) necessarily pointed to the conclusion that the evidence was overlooked. It seemed to me that the tribunal’s omission to mention the five issues identified two paragraphs above led to the inference that the tribunal did not consider those matters material in its ultimate conclusion. For example[24] –
[24] First respondent’s written submissions (filed 29 August 2018) [42], [43], [44]
For example, the accepted fact that the applicant was six months clean and had not used drugs at home did not mean that he did not take drugs while his wife was present. And his own evidence about the need for health services demonstrated that he was at risk of further drug use. It is that risk to which the Tribunal pointed.
As for the evidence of the applicant’s mother in law, her evidence was referred to generally at CB 230 [39]. It was relevantly generic, and of such a kind that it can readily be inferred that the Tribunal considered it but considered it to be immaterial to its consideration.
No error is shown.
In my view ground two was devoid of merit.
Ground 3
The applicant grouped grounds one and three, as has been canvassed above. As ground one has already been addressed, the observations in relation to ground one apply to ground three. And as discussed above, as ground one was dismissed so too must ground three be similarly dismissed.
Ground 4
The applicant did not press ground four.
Conclusion
In my view all grounds fail.
I dismiss this application and order the applicant to pay the minister’s costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 15 November 2018
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