Montsho v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FCA 230
•20 March 2025
FEDERAL COURT OF AUSTRALIA
Montsho v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 230
Review of: Montsho v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1053 File number(s): NSD 759 of 2024 Judgment of: HALLEY J Date of judgment: 20 March 2025 Catchwords: MIGRATION – application for judicial review of decision
of the Administrative Appeals Tribunal (Tribunal) affirming decision of delegate not to revoke applicant’s mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – ground of review – whether the Tribunal failed to genuinely engage with representations about the applicant’s financial capacity to support his son in Botswana under primary consideration of best interests of minor children under Direction 99 – whether Tribunal made a jurisdictional error – application dismissedLegislation: Migration Act 1958 (Cth) ss 499, 501, 501CA
Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Cases cited: FHHM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 19
Ismailv Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 36; [2024] HCA 2
Montsho and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1053
Pewhairangi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 94
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 82 Date of hearing: 11 March 2025 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: G Gutmann of MinterEllison Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 759 of 2024 BETWEEN: TEBOGO MONTSHO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HALLEY J
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.The applicant’s application for judicial review filed on 13 June 2024 be dismissed.
2.The applicant is to pay the costs of the first respondent as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HALLEY J:
A. INTRODUCTION
By an originating application for review of a migration decision filed on 13 June 2024 (application), the applicant, Tebogo Montsho, seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), affirming a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (Act).
The Tribunal has filed a submitting notice in these proceedings, save as to costs.
The issue raised by the applicant for determination in this proceeding is whether the Tribunal failed to engage genuinely with the applicant’s representation that his financial capacity to provide for the needs of his minor son would be diminished in Botswana due to “low incomes and high levels of unemployment” in that country in its consideration of the best interests of minor children primary consideration pursuant to paragraph 8.4 of Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).
The applicant was legally represented at the hearing before the Tribunal but in this proceeding, he was a litigant in person and appeared at the hearing by video link from Botswana.
For the reasons that follow, I am satisfied that the applicant has not established any jurisdictional error by the Tribunal and his application for judicial review of the Tribunal’s decision must be dismissed.
B. BACKGROUND
The applicant is a citizen of Botswana.
In December 2015, the applicant arrived in Australia as a dependent on a domestic worker visa.
In December 2016, the applicant departed Australia, later returning to and departing from the country several times.
On 22 June 2019, the applicant applied for a Partner (subclass 820) visa and pending the determination of that application was granted a Bridging A visa (applicant’s visa).
In the period between 11 February 2021 and 3 August 2022, the applicant was convicted of the offences of (a) attempt stalk/intimidate intend fear of harm (domestic) ($500 fine and 2 year apprehended violence order (domestic)), (b) sexually touch another person without consent; two counts of common assault ($1,000 fine, 18 month non-custodial sentence under intensive correction order, 200 hours community service), (c) stalk/intimidate intend fear” physical etc harm” (personal) ($1,000 fine, 2 year apprehended personal violence order), and (d) attempt stalk/intimidate (personal); common assault; continue “intoxicated etc behaviour” after move on direction (2 month term of imprisonment).
On 30 November 2022, the applicant was convicted of an offence of common assault, stalk intimidate intend fear physical harm against two 15-year-old female children and was sentenced to a term of twelve months imprisonment in a custodial institution.
On 31 March 2023, the applicant’s visa was cancelled mandatorily under s 501(3A) of the Act (cancellation decision) on the basis that the applicant had a “substantial criminal record” within the meaning of s 501(6)(a) and s 501(7)(c), as the applicant had received a prison sentence of 12 months or more, and the applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.
On 31 March 2023, the applicant signed a request for revocation of the mandatory visa cancellation decision and subsequently made representations to the Minister requesting that the cancellation decision be revoked under s 501CA of the Act.
On 21 February 2024, a delegate of the Minister (Delegate) determined that the cancellation decision would not be revoked.
On 22 February 2024, the applicant applied to the Tribunal to review the Delegate’s decision.
On 15 May 2024, the Tribunal affirmed the Delegate’s decision and published reasons: Montsho and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1053 (decision or DR).
C. LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) and (7) of the Act relevantly provide:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or …
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or …
Section 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
In exercising the power under s 501CA(4)(b)(ii) of the Act, a delegate of the Minister, and the Tribunal, is required to comply with directions made by the Minister under s 499 of the Act: FHHM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 19 at [6]-[7] (O’Callaghan and Colvin JJ, Derrington J agreeing).
On 3 March 2023, Direction 99 commenced. It replaced the previous Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. Direction 99 was the relevant direction in force at the time of the decisions of the Delegate and the Tribunal.
Paragraph 8 of Direction 99 sets out the following five primary considerations that the decision maker is required to take into account:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
Paragraph 9 of Direction 99 sets out four other considerations, which must also be taken into account:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Paragraph 7(2) of Direction 99 provides that the primary considerations should generally be given more weight than the other considerations.
D. THE TRIBUNAL’S REASONS
The Tribunal proceeded on the basis that it was required to determine whether the applicant had failed the character test as defined in s 501(6) of the Act, and if so, was there another reason why the cancellation of the applicant’s visa should be revoked, pursuant to s 501CA(4)(b)(ii) of the Act.
The Tribunal found that the applicant had not passed the character test in s 501(3A)(a)(i) and s 501CA(4)(b) because he had been sentenced on 30 November 2022 to a twelve-month term of imprisonment in a custodial institution: DR [40].
The Tribunal then considered whether there was another reason pursuant to s 501CA(4)(b)(ii) of the Act to revoke the mandatory visa cancellation decision.
The Tribunal summarised the submissions made by the applicant and the Minister at DR [42] to [60] and then turned its attention to each of the primary and other considerations it was required to address pursuant to Direction 99.
D.1. Protection of the Australian community consideration
The Tribunal first addressed the nature and seriousness of the applicant’s conduct.
The Tribunal found that the applicant’s repeated offending and his pattern of aggressive, sexualised, intimidatory and violent conduct was a trend of increasing concern, magnified by repetition and recidivism in breach of court orders: DR [88]. The Tribunal acknowledged that the applicant had expressed regret for his previous offences and conduct, he had an unblemished record in prison and immigration detention, and he had engaged in rehabilitative programs and some psychological treatment. It concluded, however, that on balance the nature and seriousness of the applicant’s conduct weighed squarely against revocation: DR [94].
The Tribunal then turned to the risk to the Australian community if the applicant were to remain in Australia.
After considering the applicant’s written and oral evidence, including the further psychological treatment and support programmes he intended to pursue if he were released into the community, together with assessments of the likelihood of reoffending using the “Level of Service Inventory – Revised” (LSI-R inventory) and the STATIC-99 actuarial assessment tool, the Tribunal found that there was a very real risk that the applicant would relapse into alcohol abuse and there was a consequential risk that he would reoffend. The Tribunal was satisfied that the applicant’s previous risk assessments remained relevant and there was a medium to low risk of him re-offending using the LSI-R inventory and a high risk of him engaging in further sexual offences using the STATIC-99 actuarial assessment tool: DR [131].
The Tribunal concluded on balance that the risk to the Australian community consideration weighed against revoking the revocation decision: DR [133].
D.2. Family violence consideration
The Tribunal noted that the applicant had been convicted of a single text-based family violence offence using a telephone service on 24 January 2021 that had caused his partner, Ms H, to fear for her safety and the offence had resulted in the issue of a two year apprehended domestic violence order (ADVO) against the applicant for the protection of Ms H: DR [137].
At the same time, the Tribunal found that Ms H had attempted, but without success, for the ADVO to be revoked, and had she given evidence that the applicant had never subjected her or their son to physical violence: DR [138]. The Tribunal found that the applicant had not repeated the family violence offence and there was no pattern of increasing seriousness: DR [139]. It also found that the applicant had undertaken rehabilitative courses on relevant topics, including ‘Healthy Relationships’, ‘Domestic Violence 101’, ‘Conflict Resolution 101’ and substance abuse: DR [141].
The Tribunal concluded on balance that the family violence primary consideration weighed against revoking the mandatory visa cancellation decision, but only lightly: DR [143].
D.3. Ties to Australia consideration
The Tribunal found that the applicant had four family members located in Australia. They comprised his partner Ms H and their son, and Ms H’s mother, Ms KM, all of whom are Australian citizens. The fourth family member was the applicant’s sister, an international student with whom the Tribunal found the applicant was “not close”: DR [147].
The Tribunal found that Ms H gave powerful and compelling written and oral evidence of the strength of the relationship between herself, the applicant and their son but considered that the evidence given by Ms H that she was willing to give the applicant one last chance suggested the bond “which ties them has frayed to a single strand of uncertain dimensions, the strength, flexibility and resilience of which will be tested” if the applicant’s visa was reinstated. The Tribunal concluded, however, that despite this uncertainty that it was satisfied that the ties between them “are continuing, at least presently”: DR [150]-[151].
The Tribunal ultimately concluded that on balance, the ties to Australia primary consideration weighed in favour of revoking the mandatory visa cancellation.
D.4. Best interests of minor children consideration
Given the ground of review advanced by the applicant, the Tribunal’s assessment of the best interests of minor children consideration requires close consideration and in particular its dispositive reasoning.
The Tribunal addressed this consideration at DR [159] to [178]. The Tribunal found that the only relevant child was the six year old son of the applicant and Ms H. The Tribunal was satisfied that notwithstanding significant periods of absence since the child’s birth in 2017, the applicant had maintained a relationship with his son using electronic communications: DR [161]-[162].
The dispositive reasoning of the Tribunal in addressing the best interests of minor children consideration was in the following terms:
168. While Ms H’s evidence in respect of her child’s best interests traverses the parental support Mr Montsho provides to their son and the assistance he provides, it is clear enough Mr Montsho’s past behaviour has had an effect on the child. One aspect of this is the physical separation from his son by choice in 2020, under the ADVO from January 2021 and while incarcerated from 18 October 2022 and in detention from 23 July 2023. Ms H gave evidence of the child’s emotional response to the absence of his father and the child’s related social sensitivities. This is another aspect of the effect of Mr Montsho’s past conduct on his son.
169.Mr Montsho’s conduct, behaviour and absences have diminished his parental role and his relationship with Ms H. The last chance Ms H will allow is one measure of this, and it is of significance when considering the best interests of the child. The likelihood Mr Montsho will relapse into use of alcohol is very real and not remote.
170.Prospectively, should Mr Montsho relapse into alcohol or drug use and resume the pattern of his past behaviour, this would likely have a significant negative effect on the child. Not least, this could be expected to cause Mr Montsho to be physically separated from the child again, either by action of Ms H or forced removal under the criminal justice system or the Act. Furthermore, in such circumstances, it is likely Mr Montsho’s conduct would not be consistent with him playing a positive parental role or providing his son a positive role model, particularly in respect of alcohol and drug use, and in relation to women.
171.While the effect on the child of physical separation from Mr Montsho might be ameliorated to an extent by use of electronic communications, the same cannot be said in respect of the negative effects which would be likely to arise from Mr Montsho’s recidivist behaviour and adverse role modelling. Revocation of the mandatory visa cancellation decision would expose the child to this prospect.
172.Mr Montsho submits, if the mandatory visa cancellation decision is not revoked and he is required to return to Botswana, the resulting physical separation from his son is likely to have a negative effect on the child, against his best interests. He alleges Ms H and his son will not be in a position to visit him in Botswana as Ms H is scared of flying and she would not have the money to do so. This is supported by Ms H’s evidence and her assertion she would not move to Botswana as doing so would reduce her son’s quality of life and his opportunities for education and development.
173.The force of this submission is tempered somewhat by the facts of this case. Mr Montsho resided with Ms H and the child for a period of only several months in 2019 and, otherwise, he has been absent and engaging in contact with the child using electronic media with physical contact being confined to weekends and occasional visits. The closeness of the bond between Mr Montsho and his son and the emotional effects on the child Ms H described have developed in these circumstances. Viewed through this lens, while difficulties might arise with electronic communications and physical contact would be limited by distance if Mr Montsho returns to Botswana, it does not follow that the close relationship between father and son would end or that Mr Montsho would be unable to play a parental role with his son as he has done during the extended periods of his absences since the child was born and, in particular, from 2020. That said, the loss of physical contact with his father, even only weekends and during occasional visits, could be expected to have a negative effect on the child which feeds into consideration of his best interests.
174.Considering Mr Montsho’s past conduct, there are real questions about the extent to which he is likely to play a positive parental role over the next 12 years before his son turns 18.Should the pattern of Mr Montsho’s past conduct involving use of alcohol and sexualised, intimidatory and aggressive behaviour, particularly in respect of women, emerge again, this would run counter to him playing a positive parental role and being a positive role model for his son. Mr Montsho is alive to this risk, which was squarely put to him. So is Ms H, who is willing to give Mr Montsho a last chance. It is on this rather tenuous basis, Mr Montsho continued presence in Australia is said to be in the best interests of the child.
175.On Ms H’s evidence, the child wants his father back to play an active practical parental role in his life. Even though the child’s views are likely genuine and heartfelt, the child is only 6 years old. While the child’s views must be taken into account, a child of this age is unlikely to have the tools and maturity to consider all the relevant information in respect of his father’s past conduct and the risks of recidivism when evaluating what is likely to be in his best interests. For this reason, the weight which can be given to the child’s views is reduced.
176.While there is no evidence the child has been subject to abuse or neglect by Mr Montsho, on Ms H’s evidence, on 3 occasions she asked Mr Montsho to leave the house when he was intoxicated. Whether or not the child has been exposed to Mr Montsho’s past drunken behaviour or other serious conduct, which is not presently established, it is probable the child has experienced some emotional issues as a result of Mr Montsho’s prolonged absences during his short life, particularly since 2020.
177.Mr Montsho argues this consideration should be given very substantial weight, outweighing all other considerations. I do not agree. Consideration of the best interests of the child is not as clear cut as Mr Montsho asserts. The likelihood of Mr Montsho relapsing into alcohol use and re-offending is not remote or fanciful. It is a very real possibility which would likely have a negative effect on the child. This would not be in the child’s best interest.
The Tribunal then concluded that taking all the matters it had identified into account, it was satisfied that the best interests of minor children consideration weighed in favour of revocation of the mandatory visa cancellation decision: DR [178].
D.5. Expectations of the Australian community consideration
The Tribunal found that the applicant by his offending demonstrated significant and repeated disregard for Australian law, and his offences and conduct suggest, when intoxicated, that he engages in aggressive, sexualised, intimidatory and violent behaviour towards women which raises serious character concerns: DR [184]-[185].
The Tribunal accepted that concerns about the applicant’s character were somewhat mitigated by his remorse and rehabilitative efforts, but the extent of his rehabilitation is uncertain and his rehabilitation and avowed abstinence from alcohol had not yet been tested or demonstrated in the community: DR [186].
Further, the Tribunal found that his time in the Australian community without offending was short and his offending did not accord with the expectations of the Australian community: DR [187]. The Tribunal was satisfied that viewed through the prism of the Australian community’s expectations, significant weight should be given to this norm in the context of its adverse community assessment of the applicant: DR [188].
The Tribunal concluded that the expectations of the Australian community consideration weighed against revocation of the mandatory visa cancellation decision: DR [189].
D.6. Other considerations
D.6.1. Legal consequences
The Tribunal noted that the effect of the mandatory visa cancellation decision was to change the applicant’s legal status from a lawful non-citizen to an unlawful non-citizen and to engage the deemed refusal of the applicant’s partner visa application pursuant to s 501F of the Act without any determination of the merits of the application. The Tribunal noted that the applicant had not applied for a protection visa, and had expressly disavowed any claim for protection during the hearing and therefore any consideration of any protection claim could be deferred until such an application might be made: DR [192]-[196].
The Tribunal found that although there was no time frame for the determination of the applicant’s partner visa application if the visa cancellation decision was reversed, it was nevertheless satisfied that there was some force in the applicant’s submission that he would be prejudiced if his partner visa application was not to be determined on its merits and this consideration weighed in favour of revocation of the mandatory visa cancellation decision: DR [197]-[200].
D.6.2. Impact on victims
The Tribunal observed that Ms H, although a victim of the applicant’s family violence, was nevertheless lending support for him to remain in Australia at DR [209]:
In this case, Ms H does so for reasons she expresses quite powerfully in her Statement and in her evidence. Her evidence goes to the impact on her and the child should the mandatory visa cancellation decision not be revoked and Mr Montsho be required to depart from Australia. The enforced physical separation which will result is likely to have an adverse impact on Ms H and the child.
The Tribunal otherwise concluded that the impact on victims’ consideration did not weigh strongly for or against revocation given the support provided by Ms H for the applicant to remain in Australia and the absence of any evidence from any of the other female victims of the applicant’s sexual and violent offences: DR [214]-[215].
D.6.3. Impact on Australian business interests
The Tribunal noted that there was no substantial evidence of any impact on Australian business interests resulting from the cancellation of the applicant’s visa and therefore the Australian business interests consideration did not weigh for or against revocation of the mandatory visa cancellation decision: DR [216] and [218].
D.6.4. Additional considerations
The Tribunal noted that no additional considerations were raised by the parties: DR [219].
D.7. Conclusion of the Tribunal
The Tribunal weighed the various Direction 99 considerations against each other at DR [220] to [238] and then concluded that the decision made by the Delegate not to revoke the cancellation of the applicant’s visa should be affirmed: DR [239].
The Tribunal found that the considerations weighing against revocation outweighed those favouring revocation and provided the following summary of its reasoning at DR [235]:
The weight of Mr Montsho’s ties to Australia, the best interests of his son, the legal consequences of the decision, the impediments he will face if returned to Botswana and the impact on Ms H in favour of revoking the mandatory visa cancellation decision, is not as great as the weight of other relevant considerations. The considerations in respect of protection of the Australian community, Mr Montsho’s family violence and the expectations of the Australian community weigh more heavily in the balance. In the circumstances of Mr Montsho’s case, the seriousness of his conduct and the harm to individual members of the Australian community, particularly women and female children, should he relapse and reoffend, exceed the thresholds of tolerance in principle 5.2(4) and s 8.1.2(1) of the Direction.
In the course of its final weighing of the relevant considerations, the Tribunal made the following statements specifically directed at or otherwise relevant to the best interests of minor children consideration:
227.Mr Montsho’s ties to Australia are not broad or of long duration. He resided with Ms H for only several months in 2019, and they have lived separately since in or about January 2020.To the extent this lightens the weigh, it is offset by the strength and nature of his ties to Ms H and their son. The strength of these ties is measured, in part, by Mr Montsho’s extensive periods of physical separation from Ms H and their child and Ms H’s evidence she is willing to give him a ‘last chance’. The contingent state of the relationship between Ms H and Mr Montsho, consequent to Mr Montsho’s past behaviour, including his past offences and very serious conduct, and the uncertainty thus introduced informs the strength and reduces the weight of Mr Montsho’s familial ties in Australia. The likely adverse effects on Ms H and the child of not revoking the mandatory visa cancellation decision are coloured by the likelihood Mr Montsho will experience period [sic] of decompensation periodically and significant uncertainty about his response to such eventualities. This consideration increases the weight, but not greatly.
228.Mr Montsho argues his child’s best interests should outweigh all other considerations. There is some force to this submission. The desire of the child to engage in a physical relationship with his father is a very weighty matter, in which rights of the child to such a relationship intersect with the child’s best interests which are affected by the behaviour and conduct of the father and the legal consequences of his past crimes. On the available evidence the attribution of weight is not as disproportionate as Mr Montsho contends. The best interests of the child must be considered in the particular circumstances, noting he has likely been adversely affected by Mr Montsho’s past conduct and behaviour. The likelihood of Mr Montsho playing a positive parental role in the future is contingent on the likelihood he will experience episodic decompensation and the very real risk he will relapse and re-offend in the future. On balance, however, I am satisfied the child’s best interests weigh substantially in favour of revocation, but not decisively.
E. SUBMISSIONS
The applicant did not advance any written submissions in support of his application for review and his oral submissions at the hearing were limited to statements that (a) he had not yet been able to obtain employment in Botswana, (b) he had learnt from his mistakes, (c) he was engaging with the SMART Recovery programme before leaving immigration detention, (d) since leaving immigration detention, he has not drunk alcohol or done any substances, and (e) his partner has not been able to visit him because she has a phobia of flying.
The applicant’s single ground of review was advanced in his originating application in the following terms:
Proposed Ground 1 - failure to consider claim arising on the material
1.A long line of decisions holds that one of the conditions for the valid exercise of the power in s.501CA(4) to refuse to revoke a visa cancellation decision is a genuine engagement with the “representations” of the visa holder referred to in s.501CA(4)(a). That proposition remains good law following the decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497, for the reasons explained in ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[9]: cf. WQKK v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 535 at [25].
2.At [19] of his statutory declaration Mr Montsho stated “Also, I couldn’t support my son from Botswana as the income is low and the unemployment is high.” This claim/submission is also recorded at [46] of the Tribunal’s reasons and corroborated by the evidence of Mr Montsho's partner: at [153] of the Tribunal’s reasons. Meaning that Mr Montsho’s financial capacity to provide for the needs of his son would be diminished in Botswana due to the low incomes and high levels of unemployment, whereas these challenges do not exist to the same extent in Australia.
3.The Tribunal appears to have considered this claim under the heading of ‘Ties to Australia’ at [153] and ‘Extent of Impediments to Return’ at [202] of its reasons, but not in the context of the best interests of Mr Montsho and his partner’s child, who was aged 6 at the time of the review. Mr Montsho provided evidence of employment in Australia: cf. [217] of the Tribunal’s reasons and of evidence of having worked in Australia in the past, which was relevant to his potential future employment prospects in Australia.
4.The best interests of any minor children affected by the decision are a primary consideration under para 8.4 of Ministerial Direction No.99. While para 8.4(4) provides for a list of matters which must be considered where relevant in determining the best interests of the child, the factors to be considered are not necessarily limited to these categories and will turn on the facts of each case.
The Minister submits that in order to establish error the applicant must satisfy the Court that he clearly articulated his claim that he would be unable to support financially his minor child from Botswana and it was necessary for the Tribunal to address that claim in its assessment of the best interests of minor children consideration.
The Minister submits that the Tribunal addressed the representations made in the evidence concerning the difficulty that the applicant might encounter in financially supporting his son from Botswana and the applicant’s statement of facts, issues and contentions did not contend that the applicant’s alleged inability to support his son from Botswana should be considered under the primary consideration of the best interests of minor children. The Minister submits that the Tribunal correctly considered the representations relied upon by the applicant in the context provided by his statement of facts, issues and contentions and the applicant is now seeking to recast the representations and submissions he made to the Tribunal regarding the best interests of minor children consideration.
Further, and relatedly, the Minister submits, relying on the reasoning of the High Court in Ismailv Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 36; [2024] HCA 2 at [50] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ), that it should not be readily inferred that the Tribunal in addressing the best interests of minor children consideration in its reasons had forgotten the substance of the preceding parts of its reasons or was not aware of the subsequent parts of its reasons.
F. CONSIDERATION
The determination of the applicant’s application for judicial review largely turns on the manner in which the applicant articulated his claim before the Tribunal that he would be unable to support his son financially from Botswana. It is necessary to consider both the evidence before the Tribunal and the applicant’s statement of facts, issues and contentions. While a statement of facts, issues and contentions should not be construed as a pleading, it provides an important context for a consideration of representations advanced by an applicant: Pewhairangi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 94 at [18] (Wigney, Halley and Dowling JJ).
The evidence before the Tribunal concerning the extent to which the applicant would not be able to provide financial support to his son if he were removed to Botswana was expressed in relatively general and unparticularised terms. There was no quantification of any financial support provided to date by the applicant.
In his written request to the Delegate for revocation of the mandatory cancellation of his visa, the applicant included a representation in his “Reasons for Revocation” (as written):
My partner will also struggle, financialy & suffer emotional depression if she had to a single parent. [AB 73]
The applicant also made the following representations in response to the questions included in the Personal Circumstances Form that he completed in support of his written request to the Delegate for revocation of the mandatory cancellation decision:
[the applicant’s partner, Ms H] will be in financial hardship, as we have a young child together. As I have always supported them, when I was working.
…
I have always made sure that every pay day I send my partner money for child maintenance as we had a mutual agreement.
…
I am very involved in [my child’s] life, it depresses me to think that I might not be able to offer him the standard of living that I was offered. … There are a lot of distractions in bringing up children well. One of them is the need to be economically secure.
…
I wonder how I’m going to support my child back here in Australia. Especially with the economic crisis back home, there’s no employment opportunities.
In his statutory declaration dated 14 April 2024 at [19], the applicant stated:
[a]lso, I couldn’t support my son from Botswana as the income is low and the unemployment is high
The only other evidence before the Tribunal touching on the issue of financial support that the applicant could provide if he were not removed to Botswana comprised:
(a)a statement in a statutory declaration of Ms H dated 19 April 2024 that:
[t]he impact of deportation on me would also be significant, both financially and emotionally.
(b)a statement in a letter from Ms H dated 3 April 2023 that:
… I also have had to cut back on work as I do not have anyone to care for our son, which causes me financial stress...
The statement of facts, issues and contentions advanced by the applicant provides an important context for the representations that were advanced by the applicant before the Tribunal.
The section of the applicant’s statement of facts, issues and contentions addressing the best interests of minor children consideration was limited to the following contentions:
Interests of Minor Children in Australia
38.The Applicant has one minor child with his current partner [Ms H]. The child is named [Redacted], born 21 November 2017 [GD274].
39. The Applicant claims that he has a good relationship with his son. According to his statement he states that he speaks regularly with his son and hopes to stay in Australia to maintain a parental relationship [ATB4].
40.[Ms H] also provided a statement outlining that she wants him to stay in Australia [GD143] and that he is a good father [GD145] and that she needs help to raise her son and her sone [sic] needs his father back in life [GD149].
41.It is in the best interests of [the applicant’s son] that the visa cancellation be revoked.
The only reference to any impact of removal of the applicant from Australia on his ability to provide financial support to his son was in the following terms in the section of the applicant’s statement of facts, issues and contentions addressing the impact on victims consideration:
Impact on Victims
48. The Applicant’s partner Ms [H] has expressed that she dearly wishes for the Applicant to be able to remain in Australia. The main reason for this is because the Applicant is the father of her child and she believes that it is clearly in the best interests of her child that his father remains in Australia to provide him love and support and also to provide for him financially. In addition, the Applicant’s former partner indicates that she loves the Applicant and hopes to re-establish a life in Narooma [GD143].
As is apparent from the dispositive reasoning of the Tribunal with respect to the best interests of minor children consideration reproduced at [42] above, the Tribunal did not directly address the applicant’s representations concerning the difficulties of providing his son financial support from Botswana under that consideration. Rather, the Tribunal was principally focused on weighing the emotional ties that the applicant had with his son against the risk to his son if the applicant were to relapse into alcohol abuse. The Tribunal did, however, at least indirectly address the issue in the following terms at DR [168]:
While Ms H’s evidence in respect of her child’s best interests traverses the parental support Mr Montsho provides to their son and the assistance he provides, it is clear enough Mr Montsho’s past behaviour has had an effect on the child.
Given Ms H’s evidence, referred to at [67] above, extends to both financial and emotional support, I am satisfied that the reference to “parental support” and “assistance he provides” includes financial support and assistance.
The Tribunal further addressed or referred to the applicant’s representations concerning the difficulties of providing his son financial support from Botswana in its responses to other considerations in its reasons for decision.
The Tribunal first referred to the representations made by the applicant about the impact of his removal to Botswana on his ability to support his son financially under the heading “Submissions” at DR [46], in the following terms:
Despite separation from his family members during the periods of his incarceration and detention, and during previous enforced separation under the terms of the ADVO imposed following his family violence offence in 2021, Mr Montsho asserts he has maintained a close, strong and continuing relationship with Ms H and their son. He submits Ms H and the child will suffer adverse effects, financially, practically, psychologically and emotionally, should he be forced to return to Botswana. Mr Montsho submits forced removal to Botswana will diminish his ability to provide practical, emotional and financial support to Ms H and his son, as his employment prospects and earning capacity (and wages) in Botswana would be substantially lower than in Australia. This eventuality, he argues, would have an adverse impact on Ms H and his son who are Australian citizens. Ms H, he asserts, would be denied practical support as a single working mother caring for his son, including difficulties collecting him from school for example.
(Emphasis added).
In the course of addressing the ties to Australia consideration, the Tribunal made the following statements at DR [153]:
Ms H gave evidence of the family and parental role Mr Montsho would play if the mandatory visa cancellation decision is revoked, caring for their son and assisting her to provide for his needs, financially, emotionally, socially and parentally. There is some evidence Mr Montsho provided financial support to Ms H in the past, including with the assistance of his mother in Japan. The extent of this support is not presently evident. If the mandatory visa cancellation decision is not revoked, and Mr Montsho returns to Botswana Mr Montsho submits he will be less able to provide financial support to Ms H and their child, as wages are lower and his employment prospects are uncertain. Certainly, he will not be in a position to provide practical physical support, in person. Mr Montsho will not be physically present and able to assist Ms H with the myriad practical activities of daily life, with the child’s transport for example. He will not be physically present to assist the child: Ms H gave evidence of her concern Mr Montsho is able to teach their son how to play football for example. These are impacts arising from physical absence. The weight of this consideration is somewhat reduced as Mr Montsho has been physically absent and apart from Ms H and the child for most of the time since the child’s birth for reasons other than the mandatory visa cancellation decision.
(Emphasis added).
Relatedly, the Tribunal in addressing the extent of impediments if removed consideration stated at DR [202]-[203]:
Mr Montsho is likely to experience emotional stress and psychological issues, including possible depression and a greater risk of relapsing into alcohol use, if the mandatory visa cancellation decision is not revoked and he is required to leave Australia and return to Botswana. He asserts he will have access to lower quality health care than in Australia should this occur. He is concerned he will have no accommodation and poor employment prospects, particularly as remuneration in Botswana is substantially lower than in Australia. This, he argues, will diminish his capacity to provide financial support for his son and Ms H, who he will not be able to visit.
I accept Mr Montsho is likely to experience these impediments and they weigh in favour of revocation.
(Emphasis added).
Then, in addressing the impact on victims consideration, the Tribunal observed at DR [208]-[209]:
… The impact on Mr Montsho’s family members of the mandatory visa cancellation decision and non-revocation has already arisen when considering the strength, nature and duration of Mr Montsho’s ties to Australia under s 8.3 of the Direction.
…
Viewed through that lens, it is an unavoidable fact Ms H is a victim of Mr Montsho’s family violence offence. In cases of this kind, it is not unknown for a victim to lend support to their perpetrator remaining in Australia. In this case, Ms H does so for reasons she expresses quite powerfully in her Statement and in her evidence. Her evidence goes to the impact on her and the child should the mandatory visa cancellation decision not be revoked and Mr Montsho be required to depart from Australia. The enforced physical separation which will result is likely to have an adverse impact on Ms H and the child.
(Emphasis added).
The reasons for decision of a decision maker must be read as a whole. It can readily be inferred that they are typically prepared only after all matters have been considered by the decision maker and in an iterative fashion. Almost inevitably there is likely to be overlap in the relevance of matters to specific issues and it is generally desirable that duplication be avoided. As the High Court explained in Ismail at [50]:
If the delegate was required to weigh the plaintiff’s personal circumstances in deciding what ultimate weight to give to the expectations of the Australian community, no inference can be drawn that the delegate did not do so. A decision-maker’s written reasons for a decision are often structured in sequence. The sequential structure of reasons, so that each topic is dealt with under a separate heading, is not generally a sufficient reason to infer that in dealing with one matter, the decision-maker has forgotten the substance of the preceding parts of the reasons or is unaware of the substance of the subsequent parts of the reasons, nor would it be readily inferred from mere sequential structuring and dealing with each topic under its own heading that a decision-maker had quarantined the assessment of each topic from every other topic. As previously noted, in the present case, moreover, the concluding section of the delegate’s reasons discloses an overall weighing of all considerations against each other. In so doing, the delegate expressly weighed the plaintiff’s personal circumstances against, amongst other things, the expectations of the Australian community.
The principles informing the obligations on a decision maker to consider representations made by a former visa holder in support of an application for revocation of a mandatory visa cancellation pursuant to s 501CA(4) of the Act as identified in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [21]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ) were conveniently summarised by Wheelahan J in TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451 at [32], which summary I respectfully adopt, in the following terms:
(a)a decision-maker must read, identify, understand, and evaluate the representations;
(b)decision-makers must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them;
(c)from that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate;
(d)the weight to be afforded to the representations is a matter for the decision-maker;
(e)the decision-maker is not obliged to make actual findings of fact as an adjudication of all material claims made by a former visa holder;
(f)the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness;
(g)what is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations, and the requisite level of engagement will vary, among other things, according to the length, clarity, and degree of relevance of the representations; and
(h)what is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations, and the requisite level of engagement will vary, among other things, according to the length, clarity, and degree of relevance of the representations; and (h)if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked, or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa-holder, that may give rise to jurisdictional error.
I am satisfied that the reasoning of the Tribunal at DR [46], [153], [168], [202]-[203] and [208]-[209], given the generality of the representations made by the applicant concerning constraints on his ability to provide financial support for his son from Botswana, demonstrates that the Tribunal (a) understood and evaluated those representations, (b) exercised a requisite level of engagement by the Tribunal with the representations within the bounds of rationality and reasonableness, and (c) did not ignore, overlook or misunderstand relevant facts or materials, a substantial and clearly articulated argument, an applicable law or the case advanced by the applicant, that might give rise to jurisdictional error.
Moreover, I am satisfied that the specific consideration by the Tribunal of the representations made by the applicant concerning constraints on his ability to provide financial support for his son from Botswana in addressing the ties to Australia consideration at DR [153], the extent of impediments if removed consideration at DR [202]-[203] and the impact on victims consideration at DR [208]-[209], rather than in the best interests of minor children consideration did not give rise to any jurisdictional error given (a) those representations were advanced in the applicant’s statement of facts, issues and contentions in the context of the impact on victims consideration, not the best interests of minor children consideration, (b) the need to consider the reasons of the Tribunal read fairly and as a whole, consistently with the statement of principle in Ismail at [50], and (c) the reference to “parental support” and “assistance” in DR [168] must be read in the context of the more specific references to the support and assistance provided or sought to be provided by the applicant to his son at DR [46], [153], [202]-[203] and [208]-[209].
G. DISPOSITION
The application for judicial review is to be dismissed and the applicant is to pay the Minister’s costs.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley. Associate:
Dated: 20 March 2025
0
9
2