RBKG v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 405
•3 May 2023
FEDERAL COURT OF AUSTRALIA
RBKG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 405
Review of: RBKG and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 3434 File number: WAD 237 of 2022 Judgment of: COLVIN J Date of judgment: 3 May 2023 Catchwords: MIGRATION - application for judicial review of decision of the Administrative Appeals Tribunal - where Administrative Appeals Tribunal affirmed decision of Minister's delegate to not revoke the cancellation of the applicant's visa - where applicant's criminal history includes convictions relating to child abuse of daughter and child exploitation material - where applicant alleges jurisdictional error due to the Tribunal's approach to the consideration of the best interests of one of the applicant's children - application dismissed Legislation: Migration Act 1958 (Cth) ss 499, 501, 501CA Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 25 Date of hearing: 27 April 2023 Counsel for the Applicant: Ms E Latif (pro bono) Counsel for the First Respondent: Mr B McGlade Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
WAD 237 of 2022 BETWEEN: RBKG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
3 MAY 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant do pay the respondent's costs of the application to be assessed by a registrar if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
In June 2022, the applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). He then made representations to the Minister seeking the revocation of the visa cancellation decision in the exercise of the power conferred by s 501CA(4). A delegate of the Minister decided not to exercise the power. The applicant appealed to the Administrative Appeals Tribunal which affirmed the decision of the delegate. The applicant now seeks review for alleged jurisdictional error.
It is common ground that in undertaking its review, the Tribunal was required to comply with a direction given by the Minister under s 499, namely Direction No 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA (Direction).
The application advances a single ground of review which concerns the Tribunal's approach to the consideration of the best interests of one of the applicant's children (referred to by the Tribunal as Child C). In effect, the claim made is that the Tribunal (a) failed to consider the best interests of Child C on the basis of the claims and materials before the Tribunal; and (b) failed to give any or any proper consideration to factors in the Direction concerning the best interests of children, being mandatory relevant considerations that the Tribunal was required to consider (in circumstances where there were claims and materials before the Tribunal relevant to those considerations).
As developed orally, both parts of the ground rest upon the premise that the Tribunal failed to consider claims and materials that were advanced by the applicant as to why the best interests of Child C was a reason in favour of the Tribunal deciding to exercise the power to revoke the cancellation of his visa. The alleged error by the Tribunal was characterised as a failure to consider a relevant consideration or a constructive failure to perform the statutory task. As to the latter, it was submitted that there were claims and materials of importance to the best interests of Child C such that the alleged failure to take account of those claims and materials meant that the Tribunal had failed to have regard to those best interests (and thereby failed to perform the decision-making task).
For the following reasons, the Tribunal considered the claims and materials concerning the best interests of Child C and the premise for the applicant's ground of review has not been established. Therefore, the application must be dismissed.
The matters that the Tribunal is alleged to have failed to consider
In written submissions the claim made by the applicant that the Tribunal was alleged to have failed to consider was put in the following terms:
The Applicant's claim in respect of Child C was that he was providing financial and emotional support to Child C's mother, who was a vulnerable person and that, to the extent permissible, he wished to be part of Child C's life and provide ongoing support.
In oral submissions the following material was identified as material that the Tribunal was alleged to have failed to consider:
(1)A statement by the applicant in the personal circumstances form submitted when he sought revocation of the cancellation of his visa which responded to a question about any impact on the applicant's spouse/partner 'in the event of a negative outcome' that:
My partner … is afraid to stay alone with our child with no financial and other supports in Australia also she want[s] that our child [grow] up with father. She is not able to go with me to Serbia if I have to leave Australia.
(2)The following passages from a personal statement provided by the applicant:
Shortly before our daughter's birth, we got advice from Child Safety that [my partner and Child C] should not live with me until I completed my treatment with Dr Palk. Because of this, [they] have moved down to Victoria to live with her family. We both hope we can be reunited and live as a family once my treatment with Dr Palk finishes. We speak to each other on the phone every day.
I am happy to comply with any conditions that Child Safety or the police impose regarding my access to my daughter.
(3)Passages from a statutory declaration provided by the mother of Child C to the effect that she was blessed to have the applicant in her life, that the applicant was a loving and dedicated partner and that it has been hard 'having to struggle basically as a single mother'. They included the following:
I fear being a single mother and don't know how I will cope having to go back to work the workforce to provide for [Child C] and I with how vulnerable I and at present let alone to manage without [the applicant] here, it is a lot easier to take care of a child and your own health when your partner is there is support you.
(4)Those responsible for child protection has ceased involvement on an 'expectations basis'.
(5)Material before the Tribunal which (so it was submitted) supported the conclusion that the applicant may be able to have access to Child C at some future time - noting that there was no material to which the Court was referred that was expressed in those terms.
These materials were said to give rise to a representation advanced by the applicant to the effect that the applicant would be involved in the life of Child C to the extent that he was permitted to do so that went beyond referring to the provision of financial support. Issues were raised for the Minister as to whether there were representations made or raised to the effect submitted. For present purposes, it may be assumed in favour of the applicant that the above matters were representations or contentions that the Tribunal was required to consider when having regard to the best interests of Child C.
The case for the applicant concerning the Tribunal's reasons
The case for the applicant focussed upon two parts of the Tribunal's reasons. The first part was a paragraph that formed part of a section headed 'Background Facts' and was expressed in the following terms (para 76):
If the Applicant were to be released into the community, he would like to return to working as a tiler and would want to be with [the mother of Child C] and Child C. This would only happen if it was permitted. The evidence set out above suggests that this is most unlikely. His relationship with [the mother of Child C] has been poor, but it is now alright again, according to him. He has no other family in Australia, aside from his estranged former wife, Child A and Child B.
The second part was in a section of the Tribunal's reasons headed 'Primary Consideration 3: The Best Interests of Minor Children in Australia'. After referring to the relevant provisions of the Direction and dealing with the interests of Child A and Child B, the Tribunal dealt with Child C. The passage the subject of complaint was as follows (paras 134‑135):
If the Applicant were to re-establish his relationship with [the mother], it is likely that Child C may be the subject of an intervention by child protection authorities, possibly including being removed from [the mother's] care. This would not be in Child C's best interests. The Applicant has been assessed on being a risk to Child C.
If the Applicant were to remain in Australia, it is most likely that his only contribution to Child C would be limited to whatever financial support, he may offer.
It must be observed that the above paragraphs were immediately preceded by the following reasons by the Tribunal (paras 131‑133):
Child C is an infant. As set out above, Child C lives in Victoria with her mother… She is cared for by [her mother] and her family. The Applicant has only had limited contact with her at the time of her birth.
The exact nature of the current relationship between the Applicant and [Child C's mother] is unclear. The Applicant says that they are now on good terms. [The mother of Child C] did not give evidence in support of the Applicant. Notes held by The Department of Families Fairness and Housing suggest that this relationship broke down at some time in 2021.
Child Protection authorities regard the Applicant as a danger to Child C.
The applicant initially described the Tribunal's reasoning as dealing with hypotheticals rather than the material before the Tribunal. That submission must be rejected. The Tribunal was undertaking an evaluation as to what may occur in the future. Necessarily, such an evaluation requires the Tribunal to consider possibilities. It is an evaluation that the Tribunal is directed to undertake by the terms of the Direction.
The contention for the applicant that was ultimately advanced was to the effect that the Tribunal did not consider material before it to the effect that the applicant sought to establish a relationship with Child C and that such a relationship may be possible. It was contended in the alternative that the Tribunal made no finding concerning the actual factual circumstances because it simply recited the evidence. On that basis it was submitted that the conclusion reached as to what the position might be in the future was not based upon any reasoned consideration of the claims and materials before the Tribunal concerning the past and current circumstances that would bear upon that issue.
For the following reasons, those submissions must also be rejected. In order to explain the basis for that conclusion it is necessary to have regard to the Tribunal's reasons as a whole.
The structure of the Tribunal's reasons
The following aspects of the way in which the Tribunal structured its reasons are relevant for present purposes:
(1)The reasons began with an introduction which correctly identified the relevant provisions of the Migration Act and the nature of the decision to be made by the Tribunal (paras 1‑4).
(2)The reasons then dealt with the reliability of the applicant's own evidence (para 5). As to his evidence, the Tribunal found: 'There were many instances of a conflict between his past reported statements, his past conduct, and his evidence to the Tribunal'. The Tribunal indicated that some examples of the conflict were given in later parts of the reasons. Then the Tribunal found as to the applicant: 'In general terms, he appeared to lack insight into his behaviour and sought to downplay its seriousness'. The Tribunal indicated that where there was credible alternative evidence, it was generally preferred to the applicant's account.
(3)In short, there was a clear credibility finding against the applicant. It was identified at the outset. Further, the reasons flagged that to the extent that the conclusion as to the credibility of the applicant was based upon conflict between his testimony and other material, examples would be given in the reasons that followed.
(4)The reasons then stated that the applicant did not call any other witnesses and significantly did not call his former wife or the mother of his infant daughter (Child C).
(5)The reasons then commenced a section headed 'Background Facts'. It began 'The applicant was born in Serbia. He is a Serbian national. He is 46 years of age' (para 7).
(6)The Background Facts section continued by recounting relevant aspects of the applicant's history in a similar manner to the opening paragraph (paras 8‑11).
(7)The Tribunal then dealt with the applicant's evidence concerning how he came to be in possession of child exploitation material and respects in which the evidence of the applicant was unsatisfactory (para 12).
(8)The Tribunal set out certain passages from the records before the Tribunal concerning interactions between the applicant and police (paras 14‑15) at the conclusion of which the Tribunal said: 'The Applicant did not deny this' (para 16).
(9)The Tribunal then recounted the history of various matters relating to domestic violence and offending by the applicant (paras 17‑31).
(10)After quoting an extract from police records that concluded by stating that the applicant could not provide any lawful or emergent reason for breaching the domestic violence order, the Tribunal stated: 'The Applicant could not explain to the Tribunal why he had done this or what he intended' (para 32).
(11)The Tribunal then recounted the history of the circumstances in which he was convicted and sentenced for offences of indecent treatment of a child (being another daughter) and possessing child exploitation material as well as parts of the applicant's own evidence about those matters (paras 36‑45). In the course of doing so, the Tribunal said:
In his evidence to the Tribunal, he said that many of the allegations against him were not true. His lawyer had told him to enter a plea. He told the Tribunal that he accepted that this was an offence against his daughter. He told police in October 2016, that he could not see anything wrong with the photo of his daughter. He said that he can now see that it was not appropriate. He said that he did not think that [the child] was negatively impacted by his offending.
(12)The reference by the Tribunal to the evidence of the applicant in this way must be understood in the context of its finding at the outset that the evidence of the applicant was not preferred where there was a credible alternative account. Further, the juxtaposition of the above summary of the applicant's evidence with the Tribunal's contradictory account of the circumstances of the offending and the remarks of the sentencing judge when read in the context of the opening adverse finding as to the applicant's credibility is plainly a way of recording respects in which the evidence of the applicant was unsatisfactory and not to be accepted.
(13)The Tribunal then dealt with the history of the applicant's relationship with the mother of Child C (para 46). It began by recounting the applicant's own evidence. It included the following statement:
Shortly before our daughter's birth, we got advice from Child Safety that [the mother of Child C] and our child should not live with me until I completed my treatment with Dr Palk. Because of this, [the mother of Child C] and [Child C] have moved down to Victoria to live with her family. We both hope we can be reunited and live as a family once my treatment with Dr Palk finishes. We speak to each other on the phone every day.
I am happy to comply with an[y] conditions that Child Safety or the police impose regarding my access to my daughter.
It may be noted that the above passage is one of the parts of the material before the Tribunal that it was said that the Tribunal failed to take into account.
(14)The reference to the applicant's statement concerning his relationship with Child C's mother was followed by extracts from documents concerning the requirement that he complete sexual offending programs. The Tribunal then quoted from various documents which recounted unsatisfactory aspects of the applicant's participation in sexual offending programs (paras 47‑49). Again the juxtaposition is significant.
(15)The Tribunal then dealt with certain respects in which the applicant's evidence to the Tribunal was not consistent with the documentary evidence or was otherwise unsatisfactory (paras 54‑55). It was followed by an extensive quotation of the contents of a letter from Corrective Services to Child Safety services which included statements to the effect that the applicant had limited insight into his sexual offending behaviour (para 56).
(16)Next, the Tribunal described the circumstances of the birth of Child C in the following terms (para 57):
… the Applicant's daughter … Child C, was born. The applicant was present at the birth, but Child Protection services became involved shortly afterwards. He last saw her 2 days after her birth. He told the Tribunal that he wants to have contact with Child C if he can and to 'support her'. He maintains that he is not a risk to Child C.
It may be noted that the Tribunal at this point refers to the evidence of the applicant to the effect that he wants to have contact with Child C. Plainly by this statement (and the earlier quotation from the evidence of the applicant), the Tribunal referred to the material which it is submitted was material to which the Tribunal failed to have regard.
(17)The above passage was followed by extracts from a Child Protection note concerning the circumstances of the birth (para 58).
(18)After dealing with driving offending by the applicant and the circumstances of cancellation of his visa (paras 59‑68), the Tribunal then set out detailed extracts from two letters from the Victorian Department of Families, Fairness and Housing (Department). In the quotes extracts the applicant was referred to as RBKG. The first included the following (para 69) (noting that, without meaning any disrespect, the references to the mother of Child C in this and later passages have been changed to refer to her as M):
I would like to confirm the expectation of Child Protection that no contact can occur between [Child C] and yourself, at this time. This includes in person, calls and video contact. [M] is aware of this expectation, and has agreed to this.
The second included the following in which the applicant is referred to as RBKG and his infant child as Child C (para 70):
Child Protection intervention with [M] occurred over several months, ceasing in October 2021. During the investigation, [M] was not able to articulate the risk [RBKG] posed to [Child C], becoming too upset on each occasion discussion was attempted. [M's] continued narrative was that this change to her family life was imposed on her (by statutory authorities). [M] has not acknowledged the role of her decision making in remaining with [RBKG], as contributing to her situation. [M] appears to prioritise family life over any risk to [Child C]. At the commencement of our involvement, [M] had stated her intention to live with [RBKG] in Serbia, should he be deported. [M] later continued to confirm that this would not occur.
…
There are some discrepancies between the parents narrative. [RBKG] informed that he told [M] of his offending, but not the full detail, approximately a month into their relationship. [M] informs she was told by Queensland Child Safety at six months gestation. [RBKG] denies that [M] has been providing him with financial support. This contradicts [M's] assertions that she has been giving him money while he has been in prison and immigration detention. [M] refers to [RBKG] as her ex-partner, [RBKG] states he considers them together, and that [M] is stating this to Child Protection as she is afraid of the consequences.
I am aware that [RBKG] has made several applications to be moved to an Immigration Detention centre in Melbourne, to be closer to [M's] and [Child C]. [M] had not informed Child Protection of these applications, despite being fully aware of them herself. [RBKG's] plan if he is to remain in Australia, would be to live as a family with [M] and [Child C]. He acknowledged this would only occur if Police and Child Protection say this was able to be done, he informed he would not do this illegally.
[RBKG] has not met [Child C] in person. [M] had been allowing video contact with [RBKG] and [Child C] despite previously agreeing to no contact …
Child Protection have substantiated the likelihood of harm to [Child C], and consider [RBKG] as likely to cause this harm. [RBKG] has directly offended against one of his children, and the likelihood of him perpetrating this harm against another of his children, needs to be strongly considered. [Child C] is a very vulnerable child who has no ability to protect herself. The expectations outlined below have been provided to both parents. During this involvement, no applications for Protection Orders were made for [Child C], mostly due to the safety provided by her father remaining in Immigration Detention.
On ceasing Child Protection involvement with [Child C], Child Protection have left both parents with the expectation that no contact can occur between [Child C] and her father, [RBKG]. This includes in person, calls and video contact.
For Child Protection to consider a review regarding a possible change to the above expectation, Child Protection would require specialist assessments and intervention of [RBKG] to be completed. I am aware that he is unable to complete these as he is currently in Immigration Detention. Both parents have been informed that reviewing his risk assessment, does not mean that the recommendations made by Child Protection will change.
Child Protection are not agreeable for [RBKG] to live with [Child C] throughout her childhood. If any contact were agreed to occur, it would likely be for fully supervised sessions consisting of a few hours, and would likely occur not even on a weekly basis. [M] has been assessed as not appropriate to supervise any contact between [Child C] and her father. Child Protection would also recommend similar assessments and intervention for [M], as she does not acknowledge the risk [RBKG] poses to [Child C].
(original emphasis)
(19)The Tribunal then referred to the applicant's past employment (para 71).
(20)The Tribunal quoted from parts of the documents concerning the applicant's drug and alcohol abuse (paras 73‑74).
(21)The Tribunal concluded the part of its reasons headed 'Background Facts' with the following two paragraphs (paras 76‑77):
If the Applicant were to be released into the community, he would like to return to working as a tiler and would want to be with [M] and Child C. This would only happen if it was permitted. The evidence set out above suggests that this is most unlikely. His relationship with [M] has been poor, but it is now alright again, according to him. He has no other family in Australia, aside from his estranged former wife, Child A and Child B.
The Applicant has a significant criminal history, The most serious offending relates to [child exploitation material] as discussed above. A copy of his record of convictions is annexed hereto and marked 'B'.
(22)The Tribunal then dealt with the 'Legislative Framework' and the Direction (paras 78‑ 86).
(23)The Tribunal addressed the factors in the Direction (paras 87‑178). In the course of doing so it made the following findings as to the best interests of the applicant's infant child (paras 133‑135):
Child Protection authorities regard the Applicant as a danger to Child C.
If the Applicant were to re-establish his relationship with [M], it is likely that Child C may be the subject of an intervention by child protection authorities, possibly including being removed from [M's] care. This would not be in Child C's best interests. The Applicant has been assessed on being a risk to Child C.
If the Applicant were to remain in Australia, it is most likely that his only contribution to Child C would be limited to whatever financial support, he may offer.
It was submitted for the applicant that in the section of its reasons headed 'Background Facts' the Tribunal was doing no more than reciting the material that was before the Tribunal without making any evaluative determination as to whether that material was accepted and without making any factual findings for the purposes of its later reasons. For the following reasons, I do not accept that submission.
Firstly, the heading indicates that it is the section of the reasons where the Tribunal is making factual findings.
Secondly, it is clear from the Tribunal's opening finding as to the applicant's credibility and the way in which that is expressed that in the subsequent section headed 'Background Facts' the Tribunal was doing two things. It was making findings as to the relevant facts that provided the context or background for the statutory task which concerned whether the power conferred by s 501CA(4) should be exercised in favour of the applicant and it was also explaining (as it had foreshadowed in para 6) why the evidence of the applicant was not accepted to the extent that it was inconsistent with the findings as to those background facts.
Thirdly, the section headed 'Background Facts' is almost entirely a chronological narrative account in the course of which the Tribunal states many matters in terms that must be read as findings. There are many such instances which provide contextual character to the quotations from the materials before the Tribunal. Read in that context, those quotations amount to findings as to the contents of those documents and the views expressed in them which provide the basis for the later reasoning as to the matters to which the Tribunal is required to have regard by the terms of the Direction. The quotations from the applicant's own account that form part of that narrative must be read in the context of the opening finding as to his credibility.
Therefore, the submission for the applicant to the effect that the Tribunal in the section headed 'Background Facts' was doing no more than recounting the material before the Tribunal should be rejected. In particular, it should not be accepted that the reasons referred to at [15](21) above were no more than a record of the evidence. Rather, the Tribunal was finding that it was most unlikely (on the basis of the earlier findings that it had made by accepting the matters stated in the material referred to in the reasons) that the applicant would be permitted to be with Child C.
Further, there was a finding by the Tribunal (as recounted at [15](23)) and as based upon those Background Facts that the protection authorities (that is, the Department) regarded the applicant as a danger to Child C. This finding was supported by the material to which the Tribunal referred irrespective of any submission by the applicant to the effect that he sought to have some form of relationship with Child C or that the best interests of Child C would be harmed if the applicant was removed from Australia.
Finally, as has been explained, in its reasons the Tribunal referred to the material which recorded the claim that the applicant says was not brought to account. Therefore, it is not the case that the Tribunal ignored or overlooked the claim by the applicant that he wished to be a part of Child C's life and provide support to Child C's mother by living together as a family to the extent that he was permitted to do so.
It follows that the Tribunal had regard to the claims and materials advanced by the applicant concerning the relationship that he sought to have with Child C. The case advanced for the applicant seeks to cavil with the considered conclusions reached by the Tribunal on the basis of the findings that it made in the section of its reasons headed 'Background Facts'.
Use of pseudonym
It appears that the applicant has been identified by pseudonym by reason of the nature of his offending and the risk that the identity of minor children may be disclosed with consequent harm to those children. In those circumstances, I am satisfied that the applicant should continue to be identified in these proceedings by pseudonym and that references to those involved should be anonymised.
Conclusion and orders
For the reasons that have been given, the application must be dismissed. It was accepted by the applicant that costs must follow the event. Therefore, there should also be an order for the costs of the Minister to be paid by the applicant.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate:
Dated: 3 May 2023
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