Nusipepa v Minister for Immigration
[2020] FCCA 1088
•8 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NUSIPEPA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1088 |
| Catchwords: MIGRATION – Partner visa cancellation – whether certificates under s.376 of the Migration Act 1958 (Cth) invalid – materiality – whether failure by Administrative Appeals Tribunal to comply with s.360 of the Act – whether Tribunal erred in failing to identify what risk the Applicant’s presence in Australian posed to his wife and children. |
| Legislation: Evidence Act 1995 (Cth), s.130 Migration Act 1958 (Cth), ss.116, 360, 376 |
| Cases cited: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 |
| Applicant: | TOHITANGI NUSIPEPA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 304 of 2019 |
| Judgment of: | Judge Barnes |
| Hearing date: | 13 December 2019 |
| Date of Last Submission: | 19 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Chia (direct access) |
| Counsel for the Respondent: | Ms Francois |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 304 of 2019
| TOHITANGI NUSIPEPA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 21 December 2018 affirming a decision of a delegate of the First Respondent to cancel the Applicant’s Partner (Provisional) (Class UF) (Subclass 309) visa. The review application was filed on 14 February 2019 which was 13 days outside the time provided for in s.477(1) of the Migration Act 1958 (Cth) (the Act). At that time the Applicant was in detention. The First Respondent did not oppose an order extending the time for making the application under s.477(2) of the Act. I made such an order.
The Applicant, a national of Tonga, was granted a Partner (Provisional) visa on 10 September 2014 on the basis of his relationship with his wife.
On 11 May 2018 a delegate of the First Respondent sent the Applicant a Notice of Intention to Consider Cancellation (NOICC) of his visa under s.116 of the Act.
Section 116(1)(e) of the Act relevantly provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals; …
The NOICC stated that it appeared that prescribed grounds existed for the cancellation of the visa because Mr Nusipepa had allegedly engaged in violent behaviour which indicated that his presence in Australia may be a risk to the safety of individuals in the Australian community, namely his wife and children. It referred to the fact that the Department had received information that “as a result of his violent behaviour” Mr Nusipepa had been charged by NSW Police with seven counts of common assault (domestic violence) said to have occurred between December 2014 and March 2018.
A March 2018 NSW Police Facts Sheet (Facts Sheet) referred to in the NOICC detailed seven charges against Mr Nusipepa. The Facts Sheet stated that the alleged victims were Mr Nusipepa’s wife and children. At that time the couple had twins aged 2 and a 3 year old. Mr Nusipepa’s wife also had two other children, aged 10 and 12.
The NOICC noted that Mr Nusipepa’s wife had reported the alleged incidents to the police. It outlined, in some detail, allegations of physical, emotional, financial, social and psychological abuse, including multiple physical injuries suffered by Mr Nusipepa’s wife and physical and emotional abuse of the children and their exposure to violence.
The NOICC also referred to the fact that the police had initiated an enforceable Apprehended Violence Order (AVO) against Mr Nusipepa on 6 April 2018. The AVO was issued for the protection of Mr Nusipepa’s wife and the children in circumstances where, apart from the seven specific allegations of assault, the Facts Sheet recorded the wife’s claims that her husband “hits and pinches the children, and often explains that is how he disciplines them”, that if she attempted to intervene he often pushed her, grabbed her throat or slapped her, and that he “hates” her oldest child, but seemed to take his anger out on one of the then 2 year old twins (the alleged victim of one of the charges).
The wife was reported to have told the police that Mr Nusipepa had also slapped the oldest child across the face. She disclosed what was described as Mr Nusipepa’s “violent criminal history” in Tonga to the police.
The NOICC gave Mr Nusipepa the opportunity to comment on whether the ground for cancellation in s.116(1)(e) of the Act was made out and to give reasons why his visa should not be cancelled.
On 18 May 2018 the Department received an email request from Mr Nusipepa that his visa not be cancelled as he was sorry, he was going to change and he loved his family, his work and his rugby. In a supporting email his wife sought to take some responsibility as the instigator of the “events” that had occurred, claiming that she had pushed Mr Nusipepa “mentally to the point of breaking” in the lead up to each of the events detailed in the police report. She suggested that Mr Nusipepa could see that he had done wrong and that he was taking steps to change his behaviour. She wanted him to be given a second chance. She stated that he had agreed to attend a program for perpetrators of family violence and was trying to made amends. She expressed concern about the children suffering and losing their relationship with their father.
On 12 September 2018 a delegate of the First Respondent notified Mr Nusipepa that his visa had been cancelled under s.116(1)(e)(ii) of the Act on the basis that his continued presence in Australia may be a risk to the safety of his wife and children and that the grounds for cancellation outweighed the reasons not to cancel the visa.
Mr Nusipepa sought review by the Tribunal. He appointed a migration agent as his representative.
The Tribunal Review
On 5 October 2018 the Tribunal wrote to Mr Nusipepa care of his migration agent advising that the Department had provided information in its file to the Tribunal and had issued a certificate pursuant to s.376 of the Act certifying that “disclosure of any matter or any information would be contrary to the public interest”. It gave him the opportunity to make submissions on the validity of the certificate by 19 October 2018.
On 18 October 2018 the Applicant’s migration agent sought an extension of time to provide a response regarding the s.376 certificate. In an invitation of 22 October 2018 to a hearing on 11 December 2018 the Tribunal requested that any additional documents or information Mr Nusipepa wished to rely on during the hearing be provided by 8 December 2018.
On 30 November 2018 the Tribunal received a completed Appointment of Representative and Authorised Recipient Form in which Mr Nusipepa appointed his wife as his authorised recipient and to act as his representative. On 3 December 2018 the migration agent advised the Tribunal that she no longer acted for Mr Nusipepa.
On 7 December 2018 Mr Nusipepa’s wife (who described herself as the“[s]upport person and representative” for her husband) sent the Tribunal an email and what she described as “quite a bit of paperwork” in support of the review application. The documents provided included character references and a copy of a letter dated 30 November 2018 from Mr Nusipepa’s wife to the solicitor who was acting for Mr Nusipepa in relation to the criminal proceedings in which she explained that she had previously contacted the Department and the Minister in attempts to have Mr Nusipepa removed from Australia. She stated that she was “not saying [she] lied in any of the Police report but [she] did leave a lot of information about how [she] was a main instigator and antagonist” and that she had “made sure [she] mention assault on the kids cause [she] knew that would look worse for him, [she] did not make anything up, but [she] did use the truth as a weapon to try and destroy his life here and have him returned to Tonga”. She explained she loved Mr Nusipepa and claimed that the family had been facing difficulties since he had been in immigration detention. She sought the solicitor’s support in obtaining a sentence other than a custodial one.
Mr Nusipepa’s wife also sent a detailed letter to the Tribunal supporting the review application. She referred, among other things, to the effect of separation on the family, the pressure on her husband and financial hardship. She addressed positive elements of Mr Nusipepa’s character and reiterated her claim that she was responsible for his violence to her.
Mr Nusipepa’s wife also sent the Tribunal copies of some of her earlier correspondence with the Department and emails she sent to Mr Dutton between February and September 2018. This correspondence is in evidence as an annexure to the affidavit of Katherine Louise Evans affirmed on 14 June 2019 (the Evans affidavit).
Mr Nusipepa and his wife attended the Tribunal hearing on 11 December 2018. A transcript of the hearing is in evidence as an annexure to the affidavit of Lecia Marie Stark affirmed on 24 October 2019. Mr Nusipepa’s wife was late to the Tribunal hearing. When she arrived she told the Tribunal that she wanted to give oral evidence and so was directed to wait outside the hearing room until Mr Nusipepa finished his oral evidence.
At the hearing the Tribunal gave Mr Nusipepa an opportunity to comment on the s.376 certificate and asked him about the charges and the progress of the criminal proceedings. He denied that he had committed any of the offences, made various complaints about his wife and said that he loved his children.
Mr Nusipepa’s wife told the Tribunal that a lot of what she had reported to the police had “eventuated but not how [she] kind of portrayed it” (transcript, p.20). She blamed herself for her husband’s behaviour. She indicated to the Tribunal that she intended to support her husband in relation to the criminal proceedings.
The Tribunal member advised that she would not make her decision until after the, then imminent, Local Court hearing in relation to the criminal charges.
On 19 December 2018 the solicitor who acted for Mr Nusipepa in relation to the criminal charges informed the Tribunal that Mr Nusipepa had been found not guilty of six of the charges and guilty of one charge, in respect of which he had been placed on a conditional release order for a period of six months. The solicitor also advised that a final AVO had been made for a period of six months. Copies of the court order and the AVO were provided to the Tribunal.
Mr Nusipepa was convicted of a charge of common assault on his wife on 28 December 2014. The NSW Police Facts Sheet had described this charge as follows:
Offence 1 - Common Assault On the 28th of December 2014, the victim was pregnant with twins. At the time both the victim and the accused were aware that the victim was pregnant, but they were unaware she was carrying twins. At the time they were residing with their children at [Applicant’s address]. During the evening, the accused went out drinking; the victim was in fear of the accused returning intoxicated and so locked the doors. She awoke several hours later to find the accused had broken into the house, and brought two unknown males home with him for more alcohol. The victim asked the males to leave, and the accused became very angry.
The accused grabbed the victim and dragged her to their bedroom, punching her numerous times on the way. The accused threw the victim onto their bed, and then dragged her off the bed onto the floor. At the time their baby was asleep in a cot in the same room. The accused stomped on the victim's stomach, causing pain and for her to fear for her unborn baby. The victim was screaming for help, but the other males did not contact police. The accused left the location with the males, and the victim contacted her mother to come and get her children. The victim drove herself to hospital, where she detailed what had occurred and was examined. The unborn baby was also checked. The victim has signed a consent form to have these medical records made available to police. This assault caused the victim pain and soreness in her stomach.
The final AVO was expressed to be for the protection of Mr Nusipepa’s wife and the five named children. It restrained him from assaulting or threatening, stalking, harassing or intimidating and/or intentionally or recklessly destroying or damaging any property belonging to or in the possession of any of those six people. The AVO also restrained Mr Nusipepa from approaching or being in the company of any of those people for at least 12 hours after drinking alcohol or taking illicit drugs.
The Tribunal Decision
In its reasons of 21 December 2018 the Tribunal referred to the power to cancel a visa under s.116(1)(e) of the Act where the presence of the visa holder “is, or may be, or would or might be, a risk”. It observed that there did not have to be any direct, solid or certain foundation before the cancellation power could arise and that it could arise on the possibility that some event had occurred in the past.
The Tribunal noted that there was no definition of “risk” in the Act or Migration Regulations 1994 (Cth) (the Regulations) and found that the plain English meaning applied, namely “the chance of injury or loss or hazard”. It recognised that the concept of risk entailed an element of futurity, but stated that in considering the question of whether a visa holder “may” be a risk within s.116(1)(e) it was relevant to consider past conduct, including the possibility that an event occurred in the past. The Tribunal observed that the laying of criminal charges may support a finding that an event had occurred in the past or, at least, that there was a possibility that the events which were the subject of the charges occurred, and that it did not impinge on the presumption of innocence to have regard to unproven charges in making an assessment of risk within s.116(1) of the Act.
In considering whether the ground for cancellation existed, the Tribunal referred to the fact that on 13 March 2018 Mr Nusipepa had been charged with seven counts of common assault (domestic violence) which were alleged to have occurred between December 2014 and March 2018 and that the alleged victims were his wife, as well as his three children and his two step children aged between 2 and 12 at the time.
The Tribunal described the information before the delegate as follows:
a. The applicant allegedly began abusing the alleged victim physically, emotionally, financially, socially and psychologically about two weeks after returning to Australia in 2014.
b. The applicant assaulted or verbally abused [his wife] when she asked him for money to pay for living expenses. He slapped, hit, pushed and grabbed her by the throat almost daily. He regularly hit and pinched his children. In one incident he allegedly slapped a child across the face.
c. On 28 December 2014 the applicant allegedly returned home intoxicated and broke into the house with two unknown males for more alcohol. When [his wife] asked the two males to leave, the applicant allegedly became angry, grabbed and dragged her into his bedroom punching her numerous times along the way. [His wife] was pregnant at the time, of which the applicant was allegedly aware. He allegedly threw her onto the bed, then dragged her onto the floor where he struck her in the stomach with his foot. [His wife] drove herself to the hospital where she and the unborn babies were examined.
d. On 17 September 2016 the applicant allegedly consumed alcohol and began to argue with [his wife] at home. He allegedly threw her to the ground, wrestled with her and smashed her phone before leaving the premises.
e. On 31 December 2016 the applicant allegedly became involved in an argument with [his wife] and punched her in the face.
f. In April, May and June 2017 the applicant and the alleged victims were residing in the home of the applicant’s mother in law. It is alleged that the applicant picked up and lifted the one year old child by his head, holding either side of his head. The applicant kneed the child to the head causing him to cry uncontrollably.
g. In June 2017 [his wife] was driving home with the applicant and the children and he allegedly began manipulating the automatic gear shift, causing the car to speed up and slow down. He began to try to open the passenger door when the vehicle was still in motion. When [his wife] told him to stop, he allegedly punched her head.
h. Between 9 and 11 March 2018 it is alleged that the applicant pinched and tugged his child’s earlobe. He allegedly did not stop when [his wife] asked him to stop, then grabbed her by the throat and pushed her against the wall when she tried to intervene.
i. On 12 March 2018 the applicant allegedly slapped his child, which [his wife] heard from another room. The applicant allegedly told his partner that he slapped the child because he was not listening to him.
j. On 13 March 2018 [his wife] reported the above incidents to the police and provided a statement at the police station.
The Tribunal had regard to the fact that an enforceable AVO had been initiated by the police which named Mr Nusipepa’s wife and their children as persons needing protection. It also had regard to the fact that police information indicated that as a result of Mr Nusipepa’s actions his spouse had incurred multiple physical injuries and the children had been exposed to violence and subjected to emotional and physical abuse over a period of approximately three and a half years.
The Tribunal also took into account the fact that in the written response to the NOICC the Applicant had admitted that he was “in trouble with the police” and had stated that he would change, that he loved his family and that he would not be able to see them if he had to return to Tonga; that he was undertaking a program with the Department of Family and Community Services NSW (DOCS); and that he would attend church regularly. The Tribunal referred to the supporting statements from Mr Nusipepa’s wife and other character references. It accepted that those who had provided character references believed that the Applicant was a “good person”, although it noted that many of those references did not refer to the criminal charges. It was not apparent to the Tribunal that those who provided the statements were aware of those circumstances.
The Tribunal accepted evidence from Mission Australia that Mr Nusipepa had recently engaged to undertake a rehabilitation program and had completed a pre-program assessment, an orientation session and one module from August 2018. However it considered it problematic that the only time Mr Nusipepa sought to become involved in such a program was when he was faced with cancellation of his visa. It was of the view that this timing may indicate that he decided to engage in the program to assist with visa issues, rather than because he was genuinely remorseful about his conduct.
The Tribunal had regard to the statement from Mr Nusipepa’s wife that when she made contact with the Department to have her husband removed from Australia she was “not in the right state of mind and her motives were malicious”. She stated that she regretted reporting the matters to the police. The Tribunal recorded that the wife claimed that she had told the police that she was “the main instigator” and that while she had not made anything up, she had “used the truth” as a weapon to destroy the Applicant’s life in Australia and to have him deported.
The Tribunal acknowledged the wife’s claims about the effect of separation on her and on the children and her claim that Mr Nusipepa had observed his bail conditions and had been interviewed by DOCS, which she said had no concerns with him. The Tribunal also had regard to a supporting statement from the wife’s mother.
The Tribunal referred to Mr Nusipepa’s oral evidence that the alleged conduct had not occurred, that his wife was after his money and that she had been angry with him and had pushed him out of the house, but that he did not wait to be separated from the children. He claimed to the Tribunal that his wife had sworn at him and asked him to leave the house, but that he had stayed because he loved the children. He said that there was no violence between him and his wife. He claimed that his entire income went to her account, that often there was no money left before the next pay and that he did not know how it was spent. He claimed his wife had been abusive towards him and swore at him.
Mr Nusipepa told the Tribunal that he had pleaded not guilty to the criminal charges. While he claimed that at an earlier Local Court hearing his wife had asked that the AVO be lifted and that it had been varied so that he was able to live with the family, the Tribunal had regard to the fact it had been continued, indicating an assessment of a need for a formal order to protect his wife and the children.
The Tribunal was “mindful” that Mr Nusipepa had been convicted of an offence in circumstances where he and his wife had had the opportunity to provide information about the circumstances of the offence. The Tribunal did not accept the suggestion at the hearing that there was “no inappropriate conduct”.
The Tribunal considered the wife’s oral evidence, including her claim that she had approached the police only on advice from the Department, that she was “responsible” for many of the disagreements and that in her letters to the Department she had said what she thought they would want to hear so that Mr Nusipepa would be deported rather than leave her. She had not asked for the AVO. The police had put it in place. She had asked for the original AVO conditions to be removed and this had gradually occurred. At the hearing she had acknowledged that an AVO was still in place, but pointed that it had no conditions other than for the Applicant “not to be violent” and that it did not preclude them living together. She told the Tribunal that DOCS had conducted several interviews and had no issues with them living together.
The Tribunal referred to the fact that it had waited for the outcome of the criminal proceedings. It had regard to the Local Court Advice of Court Result which showed that Mr Nusipepa had been convicted of one charge of common assault, found not guilty in relation to six other charges and that a conditional release order for six months had been imposed. It observed that the final AVO prohibited Mr Nusipepa from assaulting, threatening, stalking, harassing, intimidating, or destroying any of the property of the wife or the children or approaching the wife or the children after using alcohol or drugs.
The Tribunal acknowledged Mr Nusipepa’s evidence that he wanted to change and had undergone a rehabilitation program, loved his children and did not want to be separated from his family. It also acknowledged his wife’s evidence, but found that her motivations in reporting his conduct to the police did not negate the existence of such conduct.
The Tribunal had regard to the fact that Mr Nusipepa had been convicted of an assault. While it accepted that Mr Nusipepa had completed a rehabilitation course, it was mindful that it was of short duration and appeared to have only been done in recent months and apparently in the context of the visa cancellation proceedings.
The Tribunal also placed weight on the fact that the final AVO had been issued in relation to Mr Nusipepa to protect his partner and children, that is, that the Local Court had considered it necessary to issue a formal order for the protection of Mr Nusipepa’s partner and children.
Having regard to the nature of Mr Nusipepa’s conduct, the formal finding of guilt and the issuance of the AVO, the Tribunal was of the view that his presence in Australia “is or may be a risk to the health and safety of his partner and children”. The Tribunal stated that it had reached this conclusion despite the claims to it that Mr Nusipepa had changed and would not engage in such conduct in the future. It was satisfied that the ground for cancellation in s.116(1)(e) of the Act existed.
The Tribunal considered whether the visa should be cancelled. It was prepared to accept, for the purposes of the review, that the Applicant and the sponsor may be in a spousal relationship and that on this basis he “may fulfil the purpose of his travel to and stay in Australia”. It accepted that the Applicant and his partner had children and that he claimed he needed to look after the five children. It acknowledged that the presence of the children “may suggest a compelling need to remain in Australia”.
The Tribunal observed that there was no evidence to indicate that Mr Nusipepa had not complied with visa conditions. In considering the degree of hardship that may be caused by cancellation, it referred to the fact that his immediate family, including his partner and children, were in Australia. It noted his evidence that his partner would not allow his children to travel with him if he were to leave Australia, that the older two children had no contact with their father and that he had been taking care of them. The Tribunal had regard to the written statements from relatives. It found that if the visa was cancelled, and unless the Applicant was granted another visa, he may be required to leave Australia and be separated from his family. The Tribunal accepted that this “may cause significant hardship to the applicant as well as family members”.
The Tribunal considered Mr Nusipepa’s claims that he provided financial support to his family and his evidence of employment. It acknowledged that if he did not hold a visa his employment options may be limited and that his wife was receiving Centrelink benefits and was not working. It accepted that the lack of employment “may cause financial hardship to the applicant or his family”.
However the Tribunal had regard to the fact that it had found that the ground for cancellation arose because it had formed the view that Mr Nusipepa’s presence in Australia is or may be a risk to the safety of the Australian community or a segment of the community. It took into account the fact that he had been charged with a number of offences and found guilty in relation to one charge of assault and issued with an AVO for a period of six months.
The Tribunal accepted that nothing adverse was known about the Applicant’s past or present behaviour towards the Department and that there were no consequential cancellations under s.140 of the Act.
In considering whether there were mandatory legal consequences, the Tribunal acknowledged that if his visa was cancelled Mr Nusipepa would be an unlawful citizen and may be detained, unless he held another visa. It noted that there was no suggestion that he would be detained indefinitely, although it accepted that he may be subject to possible removal from Australia and that there may be restrictions on his future travel and future visa applications as a consequence of cancellation. The Tribunal noted that there were no provisions in the Act which prevented the Applicant from making a valid visa application without the Minister’s intervention. It accepted that in relation to some categories of visa Mr Nusipepa may be subject to an exclusion period but observed that it may be possible for him to depart Australia voluntarily to avoid being removed and to avoid one such exclusion period.
In the absence of any relevant evidence or claim, the Tribunal did not consider that Australia’s protection obligations would be breached as a result of the cancellation.
In considering whether any international obligations, including in relation to the best interests of the children as a primary consideration, would be breached as a result of the cancellation, the Tribunal had regard to the fact that Mr Nusipepa and his partner had five children, three of whom were his biological children and two of whom were his step children. The Tribunal was prepared to accept that the Applicant had a close relationship with his children and provided them with care and support, but also had regard to the fact that he had been convicted of an assault and issued with an AVO that protected not only his partner, but also the five children, and that prevented him from approaching or being in the company of his partner or children after drinking alcohol or taking drugs. The Tribunal stated that, in its view, “any conduct that involves violence or threat of violence either in relation to the children or in relation to the children’s mother, is not conduct that serves the best interests of the children”.
The Tribunal continued at paragraph 36 of its reasons:
There is little evidence of the applicant’s rehabilitation. The Tribunal acknowledges that the applicant has completed a rehabilitation course and also his undertaking to change but the Tribunal is also mindful that the applicant has been detained for several months and would have had limited opportunities to take drugs or alcohol. The fact that he has not done that since his detention is not an indication, in the Tribunal’s view, that such conduct will not be repeated in the future. The Tribunal finds that if there is any risk of harm or violence towards the children, even a small risk, it is not in the best interests of the children to be in the presence of the applicant.
The Tribunal had regard to Mr Nusipepa’s evidence that he was constantly worried about the children and their well-being, had not been able to eat and sleep while in immigration detention and that if his visa was cancelled he would be affected psychologically. It accepted that cancellation of the visa may cause significant hardship to him.
In conclusion the Tribunal stated that it had considered the totality of the Applicant’s circumstances. It reiterated that it had formed the view that there were grounds for cancelling Mr Nusipepa’s visa because his presence in Australia “is or may be a risk” to his partner and children. It acknowledged that the cancellation may result in Mr Nusipepa having to leave the country and be separated from the family, but observed that he may be able to make an application for a visa in the future. It accepted that Mr Nusipepa had close relationships with his children and that cancellation could cause significant hardship to him, his partner and children. It acknowledged his evidence, and that of his wife, about the circumstances that led to the criminal charges and subsequent conviction and the character references and supporting statements. It accepted that there “may be” compelling reasons for the Applicant to remain in Australia and that there were strong reasons why the visa should not be cancelled. It acknowledged that there were no other known instances of non-compliance or breaches of the law and accepted that cancellation would limit the Applicant’s options in terms of future visa applications.
However, the Tribunal continued (at paragraph 40):
Against these considerations, the Tribunal notes that the applicant has been convicted of a serious offence. An AVO has been issued to protect the applicant’s partner and children. The Tribunal has formed the view that it is not in the best interests of the applicant’s children to experience or witness violence or if there is even a small risk of such violence occurring. The Tribunal has formed the view that the nature of the offence outweighs other considerations.
The Tribunal concluded that considering the circumstances as a whole, Mr Nusipepa’s visa should be cancelled.
The Applicant sought review by application filed on 12 February 2019. He now relies on an amended application filed on 25 October 2019. There are three grounds in the amended application.
Section 376 certificate issue
Ground One is as follows:
The Secretary provided to the second respondent (Tribunal) notifications that section 376 of the Act applied to documents or information, which were invalid and material.
Particulars
Documents entitled “Certificate and notification regarding Administrative Appeals Tribunal’s discretion to disclose certain information under s376 of the Migration Act 1958” dated 26 September 2018.
Document entitled “Certificate and notification regarding Administrative Appeals Tribunal’s discretion to disclose certain information under s376 of Migration Act 1958” dated 5 October 2018.
The Courtbook prepared by the solicitors for the First Respondent included a copy of a document on departmental letterhead dated 5 October 2018 entitled: “Revocation of Certificate and Notification Regarding the Disclosure of Certain Information Only to the Administrative Appeals Tribunal under s376 of the Migration Act 1958”. It revoked a s.376 certificate of 26 September 2018 under s.33(3) of the Acts Interpretation Act 1901 (Cth) on the basis that “the original certificate is invalid because it potentially reveals the identities of confidential sources”. The revoked certificate was not included in the Courtbook.
The Department issued another s.376 certificate dated 5 October 2018, a copy of which is in the Courtbook. The Tribunal invited Mr Nusipepa to comment on the validity of this certificate, through his original migration agent and also at the Tribunal hearing.
On 11 October 2019 counsel for Mr Nusipepa (on a direct brief) filed a Supplementary Courtbook which included a copy of the first (revoked) s.376 certificate from the Department dated 26 September 2018. It also included a copy of a letter from a Tribunal officer to the Department of 4 October 2018 which stated that the presiding member wished to ask the delegate to consider redrafting the s.376 certificate because as then drafted it would easily identify the person who had provided the information to the Department and who was the victim of family violence perpetrated by Mr Nusipepa. The letter advised that the Tribunal intended to submit the certificate (to the Applicant) for comment on its validity. The Department responded by revoking that certificate and issuing the October 2018 certificate.
The revoked 26 September 2018 s.376 certificate was as follows:
Certificate and Notification regarding Administrative Appeals Tribunal’s discretion to disclose certain information under s376 of the Migration Act 1958
Public Interest folios
I notify the Administrative Appeals Tribunal that s376 applies to:
the document(s)/information contained in file number [BCC2018/17464143], and certify that disclosure of this material would be contrary to the public interest because:
(a) Folio(s) 1, 26, 27, 29 , 30, 31, 32, 33, 34, 35, 36-49, 50, 51, 62, 63-66
These documents contain information given by the review applicant’s spouse who is the victim (domestic violence perpetrated by the review applicant) whose identity cannot be disclosed and the disclosure of such information could have adverse consequences for the review applicant’s spouse and children.
Documents of TRIM reference number(s) [reference numbers provided for the above folios] of file number [BCC2018/17464143], because it was given to the Minister, or to an officer of the Department, in confidence, and section 375A does not apply.
The 5 October 2018 s.376 certificate had the same headings, but was otherwise as follows:
I notify the Administrative Appeals Tribunal that s376 applies to:
the document(s)/information contained in file number [BCC2018/1746413], and certify that disclosure of this material would be contrary to the public interest because:
(a) Folio(s) 1, 26, 27, 29-51 and 62-66:
· prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance
· disclose or enable a person to ascertain the existence or identity of a confidential source or information
· endanger the life or physical safety of a person, and
· information provided ‘in confidence’ and where the provider of the information has not consented to the disclosure of the information to the review applicant.
Documents of TRIM reference number(s) [reference numbers provided for 15 documents] of file number [BCC201 8/1746413], because it was given to the Minister, or to an officer of the Department, in confidence, and section 375A does not apply.
*Please note all of the reasons listed above applies to all folios/TRIM documents listed in this certificate*
While differently described, the same folios in the departmental file were the subject of both certificates. Copies of the folios which were not included in the Courtbook were annexed to the Evans affidavit. The Minister made no claim for privilege over any of those documents and did not seek any order for confidentiality. It was pointed out that on 7 December 2018 (after the issue of the second s.376 certificate) the sponsor, Mr Nusipepa’s wife, who was also his representative and authorised recipient at that time, had independently emailed copies of the majority of the documents the subject of the certificates to the Tribunal.
Section 376 of the Act is as follows:
Tribunal's discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister:
(i) has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and
(ii) has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.
(2) Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) shall notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.
The Applicant submitted that the notifications of both the first (revoked) s.376 certificate of 26 September 2018 and the second s.376 certificate of 5 October 2018 were incorrect and invalid and that such notifications each gave rise to jurisdictional error because the resulting breaches of an inviolable limitation governing the conduct of the review were material (as discussed in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; [2019] HCA 3).
The Applicant referred to the remarks of Bell, Gageler and Keane JJ in SZMTA at [18]-[20] in relation to the preconditions for a valid certificate. It was also pointed out that their Honours were of the view that, subject to materiality, an invalid notification would (without more) establish jurisdictional error and had rejected the proposition that an invalid notification would amount to jurisdictional error only if it resulted in breach of a distinct procedural obligation (see SZMTA at [43]-[44]).
The Applicant submitted that the issue was not whether protection from potential domestic violence would meet the requirements for the validity of a certificate or whether there was a duty to protect the wife and children (as the Minister was said to have submitted), but rather whether the notifications specified a reason for non-disclosure which could form the basis for a claim of public interest immunity as provided for a s.376(1)(a) of the Act or the documents or information were provided in confidence within s.376(1)(b) of the Act (see SZMTA at [19]-[20]).
It was contended that neither of these preconditions were satisfied and that both notifications were invalid. The Applicant submitted first that while both certificates stated that disclosure “would be contrary to the public interest” within s.376(1)(a) of the Act, the fact that documents or information had been provided to the Department in confidence would not in itself be the basis for a claim of public interest immunity at common law or under s.130 of the Evidence Act 1995 (Cth) (see MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081).
Counsel for the Applicant also suggested that the only information that could be considered to be “confidential” was the identity of the informant (Mr Nusipepa’s wife) and not the allegations.
In relation to s.376(1)(b) of the Act it was submitted generally that even if the wife’s emails to the Department had been provided in confidence, the need for confidentiality had “dissipated” prior to the issue of the certificates, as the allegations and role of his wife had become known to the Applicant. It was pointed out that the emails which were the subject of the certificates were those sent from 8 August 2018 onwards. This was after the Facts Sheet had been prepared based on the wife’s uncorroborated complaint, Mr Nusipepa had been charged and the NOICC of 11 May 2018 (which contained details of the allegations by his wife) had been issued to Mr Nusipepa.
In any event, the Applicant submitted that while both s.376 certificates stated that all documents/information had been provided “in confidence”, the documents referred to had not in fact been “given” to the Department, but had been created by the Department itself, being printouts generated by the Department of emails sent to it by Mr Nusipepa’s wife as well as emails from the Department to Mr Nusipepa’s wife and an internal working document.
In relation to the materiality of the asserted invalidity of the revoked certificate, the Applicant submitted generally that in its email to the Department of 4 October 2018 the Tribunal had treated that certificate as valid and that hence it had regard to it in the conduct of the review prior to the revocation of 5 October 2018. It was also pointed out that the Tribunal had referred to the second s.376 certificate in its reasons (recording that at the hearing Mr Nusipepa had been informed of the s.376 certificate and had been given the opportunity to provide comments). It was submitted that the Tribunal could be taken to have had regard to both s.376 certificates in the conduct of the review.
It was submitted that the documents the subject of the certificates which had not been disclosed to the Applicant in the course of the Tribunal review were not irrelevant to the issues on review. Hence it was contended that it could not be said that the invalidity of either certificate had not denied the Applicant the possibility of a favourable outcome.
Counsel for the Applicant also submitted that even if the court did not accept the contention that the printouts of emails from Mr Nusipepa’s wife to the Department were not “given” to the Department within s.376(1)(b) of the Act, s.376 operated at the level of a particular document or particular information, so that it was not necessary to establish that all documents or information referred to therein had been incorrectly notified for there to be a jurisdictional error (see SZMTA at [44]). It was contended that if the first or second notification was incorrect (in the sense that a precondition to validity was not met) in relation to at least one of the documents referred to therein, the notification would therefore be invalid (without more) and that this would constitute a breach of a precondition to the valid performance of the Tribunal’s review in the sense considered in SZMTA.
In support of this contention the Applicant pointed to two of the documents the subject of the certificates. The first of these is a completed, undated, internal document (at folio 1 in the departmental file) headed “General Cancellations Network (GCN) Referral Form” (the Referral Form). The Referral Form required departmental staff to “complete this template”, to provide all relevant evidence and to email the completed Referral Form and documents to a (redacted) email address. The completed Referral Form set out Mr Nusipepa’s personal details, recorded the reason for the referral as “Criminal Charges/ Convictions” and stated that evidence in that respect was attached. The attachment is not in evidence.
The “summary of the reasons for the referral and any other relevant information” was as follows:
Client is an applicanton a partner visa application. Client currently holds a 309 visa and is under consideration for the 100 visa.
Client had an enforceable AVO against him with seven charges of common assault. Charge sheet in TRIM CLD2018/19525718
Further to this there are several COI notes which contain emails from the sponsor. The sponsor provides information about the violence she and her children have been subject to by the applicant. She also advised that the applicant spent 3 years in prison in Tonga for killing someone when he was between the ages of 19-22. The sponsor also alleges that applicant paid a Tongan police officer for a clear Tongan police certificate for his 309 visa assessment.
(errors in original)
It was pointed out that this document contained or repeated some content that was relevant to the Tribunal’s determination, in so far as it referred to emails from his sponsor describing the violence she and her children had been subjected to by him, advised that he had spent three years in prison in Tonga for killing someone and stated that he had paid a Tongan police officer for a clear police certificate for his Partner visa application.
Counsel for the Applicant suggested however that the Referral Form did not meet the public interest immunity precondition for a valid certificate in s.376(1)(a) and that it was not given to the Minister or the Department within s.376(1)(b) of the Act and hence that the s.376 notification was invalid in relation to this document.
The Applicant acknowledged that such invalidity would only give rise to jurisdictional error if the error was material and that the issue of materiality involved consideration of whether the error could have realistically made a difference to the Tribunal’s decision. It was contended that while the Tribunal had made a cumulative assessment based on all of the evidence before it, this document was one to which the Tribunal could have given weight and therefore it could have made a difference to the overall assessment, so that the provision of an invalid certificate in respect of this document could not be said to be immaterial.
In particular, the information in the Referral Form was said to be material because it went beyond allegations in fact contained in the wife’s emails that were otherwise before the Tribunal. The Applicant pointed out that in the wife’s email to the Department of 19 March 2018 she had claimed that she had seen text messages between the Applicant and a police officer in Tonga who had “helped” him, that she could not decipher these messages as she did not speak Tongan, but that the messages stated “reference poluce (sic) record” a number of times, that the word “clear” appeared and also that there was a mention of an amount of money (“$75”).
The Applicant pointed out that in the email of 19 March 2018 there was no reference to any “certificate” or any allegation that he had paid for a clear police certificate for the purposes of his visa application. On this basis it was submitted that the Referral Form contained additional information that could have been relevant to the Tribunal’s assessment of risk and/or to the exercise of its discretion in relation to the cancellation of Mr Nusipepa’s visa.
It was acknowledged that Mr Nusipepa had become aware of some of the wife’s allegations when the criminal charges were laid, but submitted that the criminal proceedings and the NOICC did not disclose other allegations, such as the allegation by his wife that he had been imprisoned for killing a man in Tonga and that he had fraudulently had his criminal history erased, as disclosed in the Referral Form.
In addition, the Applicant submitted that the s.376 certificates were invalid in relation to the document or material at folio 31 in the departmental file. That folio includes a copy of an email from a visa cancellations officer to Mr Nusipepa’s wife of 28 August 2018 headed: “Request for confirmation”. The officer thanked Mr Nusipepa’s wife for her emails and asked her to confirm in writing “whether [she] would like to withdraw [her] support for” Mr Nusipepa by response to a specified email address by 29 August 2018.
The Applicant submitted that this document could not be seen as prejudicing a current or pending investigation of a possible breach of the law or enforcement of the law, as disclosing or potentially revealing the identity of a confidential source of information or as otherwise contrary to the public interest within s.376(1)(a), as was asserted in the second s.376 certificate. It was also submitted that this email was not “given to” the Department (let alone given “in confidence”) such as to come within s.376(1)(b), as it was given to Mr Nusipepa’s wife. Hence the s.376 certificates were said to be invalid in relation to this document. The information therein was said to be material to the Tribunal’s review.
This aspect of the Applicant’s contentions only emerged clearly in the course of the hearing. In response, counsel for the First Respondent referred to Coulibaly v Minister for Immigration & Anor [2018] FCCA 3110. The parties were given, and took, the opportunity to file further written submissions.
In so far as the Minister referred to the decision of Judge Smith in Coulibaly in support of the proposition that a certificate (in that case under s.357A of the Act) could be valid notwithstanding that the preconditions in the section in question did not apply to all of the documents referred to in the certificate, the Applicant submitted that Coulibaly did not stand for the proposition that a notification need only be correct in relation to some of the documents or information specified therein for it to be valid.
The Applicant also pointed out that Coulibaly was decided before the decision of the High Court in SZMTA and that the premise in Coulibaly that invalidity of a notification only amounted to jurisdictional error if it resulted in a breach of a mandatory procedural requirement had been specifically rejected in SZMTA at [43]-[44]. It was also pointed out that Coulibaly made no reference to Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 which made materiality a requirement and was said to have thereby “changed” the meaning of jurisdictional error.
In so far as the Minister contended that any invalidity in relation to the notifications would be immaterial because the Applicant was aware of the substance of the allegations made by his wife in her emails to the Department because she had represented him before the Tribunal and had disclosed her conduct and the majority of the emails in question to the Tribunal, it was pointed out that as at 5 October 2018, when Mr Nusipepa was invited in writing to comment on the second s.376 certificate, he was not represented by his wife but by a registered migration agent. It was also said to be relevant that his wife was not a legal practitioner and suggested that her ability to understand, convey and respond to the issues arising on review on her husband’s behalf was limited by this and by the fact that at the hearing the Tribunal had asked her to remain outside while the Applicant gave evidence (because she was also giving evidence). In addition, it was submitted that the wife had an evident conflict of interest in representing her husband.
The First Respondent submitted first that because it had been revoked, nothing about the first s.376 certificate could be “material” and that what was in issue was the second s.376 certificate. In any event, it was contended that both certificates were valid because they related to documents concerning the fact that the Applicant’s wife had been making complaints to the Minister and the Department that she feared for her safety and that of the children and that the obvious and paramount duty of the Department was to protect her and the children (see SZMTA at [20]). In particular, the First Respondent pointed out that at the time the certificates were issued the criminal proceedings were on foot and submitted that a possible prejudice to a current or pending investigation or prosecution of a possible breach of the law and enforcement of the law was, in those circumstances, a valid reason within s.376(1)(a) not to disclose that material.
It was also submitted that there was no evidence that at the time the certificates were issued the Applicant’s wife (the alleged victim in relation to most of the criminal charges that were then pending) had given all the information or material in question to her husband or that she had indicated that there was no need to protect her. The documents the subject of the certificates revealed that Mr Nusipepa’s wife had complained to the Department that she and the children were at risk from him. It was said to be readily imaginable that if the Department had revealed this information to the alleged perpetrator there could be a civil action with respect to a breach of a duty of care owed to the wife and the children, unless there was a clear statement from her that she consented to the disclosure of such information to her husband.
The First Respondent submitted generally that the protection of women and children from potential domestic violence met the requirements for the validity of the s.376 certificates in circumstances where the wife had been making complaints to the Minister and Department that she feared for her safety and that of her children, notwithstanding that at some later time she regretted her correspondence and acted for her husband. It was submitted that at the time the s.376 certificates were issued the Department had properly formed the view on the material before it that the wife and children could be at risk of harm if her status as an informant was known.
As to the precondition in s.376(1)(b) of the Act, the First Respondent also referred to the observations of Bell, Gageler and Keane JJ in SZMTA at [20] and submitted that the information in the emails from Mr Nusipepa’s wife was given to the Department in confidence.
In any event, the First Respondent submitted that if either s.376 certificate was invalid in relation to the emails from Mr Nusipepa’s wife to the Department, such invalidity could not have made any difference to the review and was not material. This was put on the basis that Mr Nusipepa was aware or taken to be aware of the substance of the matters the subject of the s.376 certificate because of information in the Police Facts Sheet, the delegate’s decision or put to him by the Tribunal or because his wife subsequently represented him before the Tribunal and in that capacity had disclosed her conduct and sent copies of the majority of these emails to the Tribunal.
The First Respondent submitted generally that it had not been shown that there was anything particular in any of the documents the subject of the certificates that the Applicant ought to have known and did not know that could have prejudiced him in the conduct of his Tribunal review such as to render any invalidity material (see SZMTA at [44]).
The First Respondent also submitted that Coulibaly at [43] and SZMTA at [40] made it plain that invalidity only applied in relation to the notification of particular documents which had been incorrectly certified as meeting a precondition and did not invalidate the whole certificate. It was submitted that in Coulibaly the only document not validly covered by the certificate in issue was not material because it was not adverse to the applicant (see Coulibaly at [43]) and hence that that case would not be decided differently after SZMTA.
In relation to the Referral Form, the First Respondent contended that while some of the material in that Form was irrelevant identifying information, the part highlighted by the Applicant repeated some sensitive information from his wife’s confidential correspondence with the Department, so that the information in that document was properly the subject of the s.376 certificates as it was given in confidence within s.376(1)(b) of the Act.
It was submitted that even if a document covered by the certificate could somehow be reduced to particular pieces of information within it, the only information in the Referral Form which would not be within a precondition to validity of the s.376 certificate would be matters such as the client ID, name, visa subclass and also the reference to the evidence of criminal charges and convictions. The First Respondent submitted that this limited information was neutral or otherwise before the Tribunal so that any invalidity in this respect was clearly not material to the review.
Similarly, it was submitted that even if the s.376 certificate was invalid in relation to the Department’s email to the wife of 28 August 2018 which asked her to confirm whether she withdrew her support for her husband, any such error was not material to the review.
The First Respondent submitted that the court could be satisfied that the Applicant knew that material was being withheld, because the s.376 certificate was put to him for comment through his original migration agent and he had made no challenge in that respect. It was reiterated that even if the certificate was technically invalid with respect to some immaterial information in the Referral Form or the Department’s email of 28 August 2018 to the wife, the fact that the Applicant had not been given such information to assist in the preparation of his case before the Tribunal could have made no difference in circumstances where the person presenting his case (his wife, as representative and authorised recipient) knew the relevant facts.
Consideration
The documents the subject of both certificates are as follows:
a)Folio 1: an (undated) internal departmental document entitled “General Cancellations Network (GCN) Referral Form” (referred to at [77]-[78] above). While this document referred to “attached” information, the s.376 certificates were not expressed to apply to any such attachment.
b)Folios 26-27 and 29-30: departmental printouts of file copies of emails sent by Mr Nusipepa’s wife to the Visa Cancellations section of the Department in August 2018;
c)Folio 31: file copy of an email of 28 August 2018 from Visa Cancellations to Mr Nusipepa’s wife asking her to confirm whether she wanted to withdraw her support for Mr Nusipepa (see [85] above);
d)Folios 32-51: file copies of emails from 29 August 2018 to 2 September 2018 sent by Mr Nusipepa’s wife to Visa Cancellations, including copies of family photographs;
e)Folios 62-66: file copies of correspondence, including emails from Mr Nusipepa’s wife to Visa Cancellations dated from 12 to 13 September 2018 and an attached copy of an email from Mr Nusipepa’s wife to the relevant Minister, Mr Dutton, on 13 September 2018. The last email in these folios is an acknowledgment from visa cancellations dated 17 September 2018.
Apart from the Referral Form, the correspondence the subject of the s.376 certificates was dated August or September 2018. This was after the NOICC of 11 May 2018. In several of her emails Mr Nusipepa’s wife supported the cancellation of her husband’s visa. In some other emails she asked that he be allowed to stay in Australia, although she did not claim that there had been no incidents of violence. In one email she stated that she was “confused cause id rather him go cause im scared he wont change and our family will break up but sending him back wont be fair to the children as they need him in life even if we don’t stay together as a family”.The last emails from Mr Nusipepa’s wife to the Department and to Mr Dutton were apparently sent in response to the delegate’s decision of 12 September 2018 to cancel the visa. In those emails she supported her husband.
The s.376 certificates were issued in September and October 2018. What is in issue is whether a precondition to validity was met at that time. In SZMTA the High Court considered the preconditions to validity of a certificate under s.438 of the Act (the equivalent of s.376 in relation to reviews by the Tribunal of applications for protection visas). Bell, Gageler and Keane JJ made it clear at [18]-[20] in SZTMA that such a provision operated in respect of a “particular” document or information. Their Honours addressed the operation of the preconditions equivalent to those in s.376(1)(a) and (b) as follows:
18. Section 438, it will be observed, operates at the level of a particular document or particular information. Whether or not the section applies in respect of a particular document or particular information depends on whether one or other of the preconditions set out in either s 438(1)(a) or s 438(1)(b) is met in respect of that document or information. Whether or not such a precondition is met in respect of a document or information is in turn a question of jurisdictional fact as to which the Secretary and the Tribunal must each in practice form a view in order to attempt to comply with the section but which can be authoritatively determined only by a court (subject to appeal), including by the Federal Circuit Court on judicial review of a decision of the Tribunal.
19. The precondition in s 438(1)(a) is met if the Minister, acting within the bounds of reasonableness and on a correct understanding of the law, has certified that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for a reason specified in the certificate. The reason so specified must be a reason (other than a reason which would permit certification under s 437) that could form the basis for a claim by the Executive Government of the Commonwealth in a court proceeding that the matter contained in the document, or the information, should not be disclosed. Where no ground of privilege or statutory immunity from disclosure is engaged, the reason specified in the certificate must therefore be a reason capable of grounding a claim for public interest immunity from disclosure at common law or under s 130 of the Evidence Act 1995 (Cth).
20. The precondition in s 438(1)(b) is met if the document, the matter contained in the document, or the information in question was given to the Minister, or to an officer of the Department, in confidence. The circumstances in which the document, matter or information was given need not be such as would give rise to an equitable obligation on the part of the recipient to keep the document, matter or information confidential.
(footnote omitted)
In SZMTA their Honours also made the point (at [70]) that if “some” of the documents and information referred to in a certificate did not meet a precondition then the legal consequence was that “those documents and that information” were not documents and information to which the equivalent of s.376 applied and that “the notification was invalid in its application to them”. In other words, the notification would nonetheless be valid in relation to documents or information to which one of the preconditions applied.
It is notable that their Honours were of the view that validity depended on whether “one or other” of the statutory preconditions was met in respect of a document or information. On this basis, if a certificate was expressed to rely on both preconditions, but only one in fact applied to the information or document in question, the certificate would be valid in respect of that information or document.
As pointed out in SZMTA at [23], if the Tribunal is given a valid notification that a provision such as s.376 applies to a document or information in a document, the Tribunal has a discretion “to have regard to the information or to any matter contained in the document for the purpose of exercising its powers, including for the purpose of making a decision on the review” (see s.376(3)(a)). The Tribunal also has a discretion under s.376(3)(b) to disclose to an applicant the information or any matter contained in the document. However, as Bell, Gageler and Keane JJ stated in SZMTA at [24]:
… Implicit in the conferral of that discretion and in the hierarchy of provisions within Pt 7 is that the Tribunal has no power under s 427(1)(c) and no obligation under s 424AA, s 424A or s 425 to disclose to the applicant the information or any matter contained in the document unless the discretion is affirmatively exercised …
The same principles would apply in relation to the equivalent provisions in relation to s.376 certificates (see ss.363(1)(c), 359AA, 359A and 360 of the Act).
It is not in dispute that the provision of an invalid certificate, that is, a notification stating that s.376 applied in relation to a document or information, would amount to an unauthorised act in breach of a limitation in the statutory procedures conditioning the performance of the Tribunal’s duty to conduct a review, but that this would only result in jurisdictional error if the breach of such limitation was material (see SZMTA at [41]-[44]). The Applicant bears the onus of proving such a jurisdictional error.
As stated in SZMTA at [45]:
… a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is … in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
(emphasis added)
The Applicant contended that the s.376 notices were invalid such as to give rise to jurisdictional error because neither of the preconditions in s.376(1) was met in relation to some or all of the documents or information referred to therein and such breach was material.
However, for the reasons that follow I am not satisfied that jurisdictional error has been established in relation to either notification.
It is convenient to consider first the application of the certificates to the documents which consisted of emails sent by Mr Nusipepa’s wife to Visa Cancellations, a departmental officer and/or to Mr Dutton between 8 August 2018 and 13 September 2018 in folios 26-27, 29-30, 32-51 and 62-66 in the departmental file.
In both certificates the Minister certified that disclosure of material in the identified folios in the departmental file would be contrary to the public interest for a reason specified in the certificate (as required under s.376(1)(a) of the Act).
The first (revoked) certificate (set out at [63] above) referred to disclosure of the identity of the Applicant’s spouse who had given information to the Department in confidence in relation to her husband’s conduct. While inelegantly expressed, when that certificate is read in its entirety, the reason specified in that certificate was capable of grounding a claim for public interest immunity from disclosure (under s.130(4)(e) of the Evidence Act as disclosing the identity of a confidential source of information relating to the administration of the cancellation provisions in the Migration Act) within s.376(1)(a) of the Act.
The second s.376 certificate (reproduced at [64] above) was clearer in this respect. It clearly gave a reason which was capable of “grounding a claim” (see SZMTA at [19]) of public interest immunity from disclosure under s.130 of the Evidence Act, including not only in relation to the then current “prosecution” of Mr Nusipepa (see s.130(4)(c)) but also information which disclosed the identity of a then confidential source of information provided to the Department (see s.130(4)(e) of the Evidence Act).
At the outset of her correspondence with the Department Mr Nusipepa’s wife explained in her email of 27 February 2018 that she communicated with it under a pseudonym and email address that did not reveal her identity so that she could remain anonymous. She revealed her identity and that of her husband in her email to Mr Dutton of 19 March 2018. Furthermore, in the first of her emails the subject of the s.376 certificate (folio 26 in the departmental file) Mr Nusipepa’s wife withdrew her support for her husband, stated that she realised he was still a danger to her and the children and, critically, asked the Departmental officer to “[p]lease keep our correspondence anonymous (sic) if possible” (email of 8 August 2018, 3.24pm). This made it clear that she was a confidential source of the information she provided to the Department in her emails (see s.130(4)(e) of the Evidence Act and s.376(1)(a) of the Migration Act), at least in relation to adverse information about Mr Nusipepa provided before his visa was cancelled.
In any event, I am satisfied that both certificates met the precondition for validity in s.376(1)(b) of the Act in relation to information contained in the documents in these folios. In so far as Mr Nusipepa submitted that the Department’s printouts of copies of the emails sent by his wife were not “given” to it within s.376(1)(b) of the Act, the “matter contained in” those documents or “the information” therein was “given to” the Minister or to an officer of the Department. I am satisfied that the information was “given” in confidence (as the wife stated in her email of 8 August 2018) such as to satisfy the precondition in s.376(1)(b)
of the Act. In my view this extended to the information in all the correspondence the subject of the s.376 certificates that was sent by Mr Nusipepa’s wife to Visa Cancellations (including both that in which she withdrew support for her husband or sought cancellation of his visa and also the contrary supportive emails which she sent as part of this chain of correspondence) and including the copy of her email to Mr Dutton.
As stated in SZMTA at [20] in relation to the equivalent provision (in s.438(1)(b)) of the Act):
The precondition in s 438(1)(b) is met if the document, the matter contained in the document, or the information in question was given to the Minister, or to an officer of the Department, in confidence. The circumstances in which the document, matter or information was given need not be such as would give rise to an equitable obligation on the part of the recipient to keep the document, matter or information confidential.
(footnote omitted)
I am satisfied that the certificates were valid in relation to the information and material in the emails sent by Mr Nusipepa’s wife.
If that is wrong (or a precondition was not met in relation to the supportive emails), I am not, in any event, satisfied that any breach in relation to the wife’s email or information therein was material in the sense referred to in SZMTA at [45]. In relation to the first s.376 certificate, the Applicant appeared to submit that the fact of invalidity was material in circumstances where the notification was taken into account by the Tribunal in that, before the certificate was revoked, the Tribunal engaged with the Department about the fact that, as then drafted, it revealed the identity of the informant who claimed to be the victim of domestic violence at the hands of the Applicant. The First Respondent made a broad submission in relation to the first s.376 certificate, contending that it was valid but that, in any event, nothing about that revoked certificate was material.
Once revoked, the first s.376 certificate was of no practical effect. It was replaced by the second s.376 certificate. The fact that in the time it was operative the Tribunal engaged with the Department over the language of the first certificate (in so far as it suggested that it revealed the identity of the person the certificate sought to protect) is not, in itself, such as to satisfy me that, if that certificate was invalid, such breach was “material” in relation to the conduct of the review.
In any event, in considering materiality in relation to either certificate what is in issue is whether compliance could realistically have resulted in a different decision. Thus, events after the time of the issue of the certificate may be relevant. In this case, it is clear that Mr Nusipepa was or became aware of the substance of the information the subject of the emails. They were either allegations relevant to his visa cancellation which were made after the time of the criminal charges in relation to which his wife was the complainant or letters of her support for him which she maintained while the matter was before the Tribunal. Furthermore, Mr Nusipepa’s wife became his authorised recipient and representative while the matter was before the Tribunal and in that capacity disclosed her conduct and sent copies of her emails to the Tribunal.
In the circumstances of this case I am not persuaded that the fact that the wife was not a legal practitioner and the other suggested limitations on her ability to represent her husband mean that the fact she gave this information to the Tribunal on her husband’s behalf is not relevant to a consideration of materiality. As the First Respondent submitted, it has not been shown that there was any particular information in any of these emails that Mr Nusipepa ought to have known, but did not know, that could have prejudiced him in the conduct of the review, such as to render any invalidity of either s.376 certificate material (see SZMTA at [44]). No jurisdictional error has been established in this respect.
The Referral Form (folio 1 in the departmental file) was an internal departmental working document. It reproduced information in several emails Mr Nusipepa’s wife had sent to the Department and to Mr Dutton (in confidence) in February and March 2018. As discussed above, that “information” was given to the Department or the Minister in confidence, thus satisfying the precondition in s.376(1)(b) of the Act.
In the alternative, that “information” would fall within s.376(1)(a) as being capable of grounding a claim for public interest immunity from disclosure under s.130(4)(e) of the Evidence Act as disclosing a confidential source of information (the wife as the original source of the information about Mr Nusipepa’s conviction and a false clear police certificate) relating to the administration of the Migration Act. On this basis the s.376 certificates were valid in relation to the Referral Form. I note in that respect that while the Referral Form went beyond information in the wife’s email of 19 March 2018, she had provided the further information summarised in that Form in other emails to the Department or the Minister (in particular in her emails of 27 February 2018).
In any event, even if, contrary to my view, the s.376 certificates were invalid in relation to the information in the Referral Form that Mr Nusipepa spent three years in prison in Tonga for killing someone and paid a Tongan police officer for a clear Tongan police certificate, such breach was not material. This information was referred to in the Police Facts Sheet which stated that it was provided by the complainant (Mr Nusipepa’s wife). It was thus known to Mr Nusipepa. Further, the wife’s earlier emails to the Department containing this information were put before the Tribunal by the wife in her capacity as the Applicant’s representative. I note that the Tribunal could have regard to this information (see s.359A(4)(b)) without any issue of a possible failure to comply with s.359A of the Act (cf. Coulibaly).
Any technical invalidity in relation to information in the Referral Form because of non-compliance with a s.376 precondition could not realistically have made any difference to the review in circumstances where the Tribunal was given that information by the Applicant’s representative and it has not been shown that this was information Mr Nusipepa did not know that could have made a difference to the review. No jurisdictional error has been established in this respect.
The Applicant also contended that the s.376 certificate could be seen as invalid, and the breach as material, to the extent that the Referral Form contained Mr Nusipepa’s personal identifying details, on the basis that these particular aspects of the document would not meet either of the s.376(1) preconditions. On this approach, if there was any such “neutral” part of a document which contained information which met a s.376 precondition that would render the certificate invalid. Even if that is technically so, provision of an invalid certificate in relation to any such neutral information could not have made any difference to the Tribunal’s decision and any such limited technical invalidity would not be material (see Hossain and SZMTA at [45]) such as to give rise to jurisdictional error.
Finally, folio 31 of the departmental file containing the Department’s email to Mr Nusipepa’s wife of 28 August 2018, which thanked her for her emails and asked her (no doubt in light of her conflicting correspondence) to confirm in writing whether she would like to withdraw her support for her husband (or, indeed, the Department’s ultimate response to her emails of 13 September 2018), formed part of the chain of correspondence the wife sought to keep confidential and gave in confidence such that s.376(1)(b) was satisfied.
In any event, even if this material did not meet either of the preconditions for validity of a s.376 certificate, any technical invalidity in that respect could have made no difference to the Tribunal’s assessment of risk and/or the exercise of its discretion in relation to cancellation of Mr Nusipepa’s visa and was not material and would not give rise to a jurisdictional error.
Ground one is not made out.
Ground 2
Ground 2 is that the Tribunal “failed to “invite” the applicant under section 360 of the Act to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
The Applicant referred to the remarks of the Full Court of the Federal Court in Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 at [30] that:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material …
It was submitted that in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 the High Court had applied Alphaone in the context of s.425 of the Act (a provision analogous to s.360). In SZBEL the High Court held that s.425 required the Tribunal to identify the issues that were dispositive of the review and to invite the Applicant to give evidence and make submissions on those issues and stated at [47] that:
… where … there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
Counsel for the Applicant pointed out that at the Tribunal hearing Mr Nusipepa had denied harming his wife or children and that his wife had told the Tribunal that she had been “fibbing”. Reliance was also placed on the fact that after the Tribunal hearing the Tribunal had received information about the result of the criminal proceedings against Mr Nusipepa. It was submitted that the Local Court had dismissed all of the criminal charges “relating to the children”.
It was acknowledged that the final AVO was drafted in terms that related to the children, but counsel for the Applicant submitted that there was nothing to indicate that there was any risk to the safety of the Applicant’s children and that it was more likely than not that the magistrate simply considered it appropriate to draft the AVO so that their safety was a condition of the Applicant’s release. It was contended that, as the Tribunal was said to have observed at the hearing, one would reasonably expect that if the Applicant had been acquitted of all charges relating to the children he would not be perceived to be a risk of harm to them.
The Applicant submitted that the Tribunal had nonetheless inferred that there was such a risk and had given decisive weight in its decision to the risk of harm to the children based on the existence of the AVO in finding that it was satisfied that the ground for cancellation was made out. This was said, in the circumstances, to be an adverse conclusion that was not reasonably open on the known material in respect of which the Applicant did not have the opportunity to comment.
The First Respondent contended first that it was apparent from the transcript of the Tribunal hearing that the Tribunal had not made a statement to the effect suggested in the Applicant’s written submissions. It was also submitted that while the Applicant’s wife had admitted to the Tribunal that she had “fibbed”, her evidence as a whole and the documents she had provided made it clear that she maintained her claim that the alleged incidents of domestic violence by Mr Nusipepa had happened, although she claimed that in some cases she had provoked them and she downplayed Mr Nusipepa’s responsibility.
Further, the First Respondent submitted that this ground appeared to be premised on the incorrect assumption that the final AVO had no meaning in respect of the Applicant’s children. The Applicant’s submission was also said to misconstrue the dismissal of criminal charges in the Local Court as being proof of Mr Nusipepa’s “innocence”. It was contended that while Mr Nusipepa had been found not guilty of six of the criminal charges, including two which specifically related to physical abuse of one of the children, the information with respect to those offences could properly found the AVO. The First Respondent submitted that, based on all the evidence before the Tribunal, its conclusion with respect to the final AVO was an obvious and reasonable construction of the Local Court’s orders. Further, the Tribunal’s conclusion was said to be the same conclusion about the risk to the wife and children that had been reached by the delegate (see SZBEL at [35]).
Consideration
The Applicant’s contention was that in light of the evidence before the Tribunal and the fact that he was acquitted of the two charges relating to alleged physical abuse of a child in the household, the Tribunal had erred in failing to put to him that it may nonetheless reach an adverse conclusion in relation to the risk to the children in considering whether his visa should be cancelled.
First, in so far as the Applicant submitted that his wife had admitted to the Tribunal that she was “fibbing”, as the First Respondent submitted, her oral evidence must be considered as whole.
Notably, at the hearing the wife conceded that a lot of the reported incidents “kind of eventuated” (transcript, p.20), although she claimed that she had behaved unreasonably and, in that sense, was responsible for the violence by her husband and that it was her fault (including in relation to the allegations of violence to the children who, she said, did not listen to her) (transcript, p.22). She made it clear that she had given information to her husband’s lawyer “to help with the criminal charges” (transcript, p.21), but she did not claim that violence to her or to the children had not occurred.
After these disclosures, the Tribunal raised with the wife the fact that she had written to the Department saying that she was “fearful for [her] safety and the children’s safety”, to which she replied:
Yeah but that was, like I said, I was fibbing a lot of that. I was putting it, I was telling it the way that I knew I needed to tell it for them to do something.
(transcript, p.24)
This was not a complete denial on her part.
The Tribunal also asked the wife about the AVO. She explained it was “not in full effect”, that conditions had been removed and “it’s only (sic) for him not be violent” (transcript, p.25). It was precisely the risk of violence to the children (as well as to the wife) to which the Tribunal had regard in finding that the ground for cancellation (which refers to satisfaction that the visa holder “is or may be … a risk”) was made out.
In his oral evidence to the Tribunal Mr Nusipepa denied the truth of any of the accusations of violence (transcript, pp.4-5 and 10) and disclosed his awareness of the then temporary AVO and the limited restrictions. However the Tribunal raised with him that the AVO was in place because the Local Court was of the view that it was necessary to protect his wife and children (transcript, p.9). It foreshadowed that if Mr Nusipepa was found guilty it was likely to find that his presence here is or may be a risk to others (transcript, p.10). The Tribunal gave him the opportunity to comment on the allegations and his relationship with the children (transcript pp.9-10). It informed him that if it found his presence in Australia “is or may be a risk to others, including your wife and children, then your visa may be cancelled” (transcript, p.11). The Tribunal stated:
Tribunal Member: The other consideration for me is the best interest of your children. So you have mentioned that you are the primary caregiver for your children, on the other hand I’ve got the police reports which suggest that there’s, there has been some abuse towards your children. So I need to consider what the best interest of your children might be.
[Mr Nusipepa]: Those report referring to that matter is not true.
Tribunal Member: Well as I said before, I think what I would like to do is to wait for the outcome of the criminal proceedings and that will determine whether the records were true or whether the charges are going to be dismissed. But even if the charges are dismissed, there is still the issue of the A-V-O, there is still an A-V-O that’s in place to protect your wife and your children.
(transcript, pp.16-17, emphasis added)
The Tribunal also highlighted the potential relevance of an ongoing AVO in stating:
Well I suppose what concerns me is that they recently left the order in place so somebody made an assessment that there needs to be a formal protection order to protect your wife and your children. So I need to be satisfied that the, the, there is no harm that would be caused to your children umm and that that’s in the best interest of your children to be with you, rather than away from you.
(transcript, p.17)
The Tribunal also informed the Applicant that it wanted to see what the AVO actually said (transcript, p.17).
The final AVO was issued by the Local Court after the Applicant was found guilty of one offence (physically assaulting his wife while she was pregnant as described in the Facts Sheet set out at [25] above). The orders about his behaviour in the AVO were not limited to physical violence, but also restrained assault, threats, stalking, harassment or intimidation and intentionally or recklessly destroying or damaging any property belonging to or in the possession of the wife or any of the five children. In addition, the order in the AVO about contact prevented Mr Nusipepa from approaching or being in the company of his wife or any of the children “for at least 12 hours after drinking alcohol or taking illicit drugs”.
The Tribunal had alerted the Applicant to the fact that if he was found guilty (as he was in relation to one offence) it was likely to find his presence here is, or may be, a risk to others. It had alerted him to the fact that the ongoing existence of an AVO would be an issue in relation to the risk to and best interests of the children and that these were critical issues. In particular, it had informed the Applicant that if there was still an AVO to protect his wife and children there would be an issue in relation to the need to protect the children and the best interests of the children, even if he was acquitted (transcript, p.17). It had given him the opportunity to comment. It was not obliged to have a further hearing to reiterate those concerns.
The possibility of a finding that there may be a risk to the children and the relevance of the best interests of the children to the exercise of the discretion were clearly raised with Mr Nusipepa in circumstances where his wife did not claim that no violence had occurred.
A criminal conviction in respect of alleged violence to a child was not a prerequisite to cancellation of the visa or necessary before the Tribunal could be satisfied that the presence of the visa holder in Australia “may be” a risk to the health or safety of a segment of the community or to an individual such as one of the children.
Further, the fact that Mr Nusipepa was acquitted of the two specific criminal charges of assault on a child did not, in all the circumstances of this case, mean that the possibility of the Tribunal finding that there “may be” a risk to the health or safety of the children, or the relevance of such risk to the exercise of its discretion, was an adverse conclusion not obviously open on the known material that had not been sufficiently identified as a dispositive issue in the sense considered in SZBEL.
The Tribunal’s conclusions with respect to the risk (and the best interests of the children) were also not based solely on the AVO. Such findings were reasonably open on the known material and the Applicant was given the opportunity to comment on the issues. Ground 2 is not made out.
Ground 3
Ground 3 is that the Tribunal “constructively failed to exercise its jurisdiction by failing to identify what risk the applicant’s presence in Australia posed to his wife and children”.
Counsel for the Applicant submitted that in so far as the Tribunal found that there was a ground to cancel the visa, the most notable feature of the decision was that while on the one hand the Tribunal had placed any risk of harm or violence towards the children at the forefront of its deliberations, on the other hand it had failed to identify “in terms” what risk Mr Nusipepa posed to the children. It was acknowledged that the Tribunal had noted that Mr Nusipepa had been convicted of one assault and that the Local Court had considered it necessary to issue an AVO to protect the wife and children, but it was contended that the Tribunal had erred in failing to address “exactly” what the Applicant was at risk of doing to the children or what harm might be caused to them.
The Applicant referred to the fact that the Full Court of the Federal Court had stated in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [35] that where the Tribunal was required to apply statutory criteria it must give “proper, genuine and realistic” consideration and engage in an active intellectual process directed at a claim or criterion. It was submitted that where the legislation specified matters and posed questions, then as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters, the legislative intention was that those questions should be answered, not merely thought about (see He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206).
It was explained that this ground related to the Tribunal’s finding that the ground for cancellation in s.116(1)(e) of the Act was made out. The Applicant suggested that s.116(1)(e) of the Act required the decision-maker to be satisfied of the “existence” of a risk to the health or safety of an individual. It was contended that this necessarily implied that the risk would actually be identified, rather than that the Tribunal would simply think about the existence of a risk and state that if the Local Court had issued an AVO then there must be a risk or that there was a risk.
The Applicant submitted that the Tribunal had erred in not asking itself exactly what the risk was in relation to the children. It was contended that, consistent with the approach taken in He (albeit in a different context), the Tribunal had to deal with this issue substantively and make express findings in relation to the particular factors required to be considered under s.116(1)(e), but that it had simply found that the existence of the AVO suggested that there was a risk to the children. The Applicant submitted that the Tribunal’s reasoning “by proxy” in relation to the AVO amounted to a failure to complete its statutory task and a constructive failure to exercise jurisdiction.
The First Respondent submitted that in so far as the Applicant’s submissions involved a contention that the Local Court had improperly issued an AVO to protect the children when there was no risk (because the Applicant had not been convicted of the alleged assaults on the children), one could not read the AVO or the result of the prosecution in that way.
It was submitted that it was clear from the Tribunal decision as a whole that the “risk” that may be posed by the Applicant to his wife and children was the risk perceived by the Local Court, that is, the risk of violence and abuse that was restrained by the AVO. It was also said to be clear, reading the Tribunal decision fairly and as a whole, that in light of the material before it the Tribunal was of the view that the fact the AVO was continued after the Local Court hearing indicated that an assessment was made that there was a need for formal protection for the Applicant’s partner and children. The First Respondent submitted that the Tribunal must have had in mind the possibility of violence and other abuse when the Applicant was intoxicated, as described in the AVO, given that it had placed weight on the fact that a court had considered it necessary to issue such a formal order for the protection of the partner and the children from harm from the Applicant. It was submitted that it was not necessary for there to be any further specification in the Tribunal’s reasons of the risk that may exist to the children.
The First Respondent also suggested that, in any event, it was not a proper approach to suggest that the only risk to the children that would be relevant would be a risk of direct physical violence or harm to them, in so far as this involved a contention that violence towards the wife was not also a type of risk to the health or safety of the children within the family unit.
Consideration
Section 116(1)(e) relevantly requires that the presence of the visa holder in Australia “is or may be, or would or might be, a risk to” (emphasis added) the health or safety of a segment of the Australian community and/or an individual or individuals. The Tribunal found that the presence of Mr Nusipepa in Australia is or may be a risk to the health and safety of his partner and children.
In that context, the Tribunal had regard not only to the AVO but also to all the evidence before it, including the conviction of assault on Mr Nusipepa’s wife. It also placed “some weight” on the fact the Local Court had considered it necessary to issue a formal order for the protection of the Applicant’s wife and her children.
Notably, under s.116(1)(e) of the Act, it is sufficient if the Tribunal is satisfied that the presence of the visa holder “may” or “might” be a risk to the health and safety of an individual. That is what the Tribunal concluded, based on all the evidence before it as to the nature of the Applicant’s conduct (which was not limited to the evidence in relation to the charge of physical violence to his then pregnant wife of which he was convicted). It also had regard to other evidence about his conduct, including the issuance of the broadly expressed AVO to protect his wife and the five children. The AVO made clear the nature of the risk of violence and other specified conduct. It prohibited Mr Nusipepa from assaulting, threatening, stalking, harassing, intimidating or destroying the property of the wife or any of the children, as well as approaching his partner or the five children after using alcohol or drugs. The Tribunal clearly approached the issue of possible risk in light of the AVO which addressed the possibility of future violence to and/or abuse of the children by Mr Nusipepa and the other evidence before it in relation to Mr Nusipepa’s past conduct.
Having regard to its reasons as a whole (and the conduct restrained by the AVO), it was not necessary for the Tribunal to make a more specific finding in relation to “exactly” what the possible risk was to the health or safety of the wife and children in finding that the ground for cancellation was made out.
The basis for the Tribunal’s concerns in relation to the children was further explained in its consideration of discretionary factors. The Tribunal stated at paragraphs 35-36 of its reasons:
35. The Tribunal is prepared to accept that the applicant has a close relationship with his children and that he provided care and support to the children. However, the Tribunal also notes that the applicant has been convicted of an assault and that he has been issued with an AVO that protects not only his partner but also the five children. The AVO prohibits the applicant from approaching or being in the company of his partner and children after drinking alcohol or taking drugs. In the Tribunal’s view, any conduct that involves violence or threat of violence either in relation to the children or in relation to the children’s mother, is not conduct that serves the best interests of the children.
36. There is little evidence of the applicant’s rehabilitation. The Tribunal acknowledges that the applicant has completed a rehabilitation course and also his undertaking to change but the Tribunal is also mindful that the applicant has been detained for several months and would have had limited opportunities to take drugs or alcohol. The fact that he has not done that since his detention is not an indication, in the Tribunal’s view, that such conduct will not be repeated in the future. The Tribunal finds that if there is any risk of harm or violence towards the children, even a small risk, it is not in the best interests of the children to be in the presence of the applicant.
It has not been established that the Tribunal erred in failing to identify the risk the Applicant’s presence in Australia may be to the health and safety of his wife and children. It referred to his conduct, his conviction and the terms of the AVO. In considering the exercise of its discretion the Tribunal placed weight on its view that any conduct that involved violence to or a threat of violence to the children or to their mother was not in the best interests of the children. It clearly identified the possibility of violence or a threat of violence (including in relation to their mother) as a risk to the children as well as to Mr Nusipepa’s wife.
This ground is not made out.
As no jurisdictional error has been established, the application must be dismissed.
I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 8 May 2020
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