Salter v Minister for Home Affairs

[2019] FCCA 1298

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALTER v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1298

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Non-protection visa (Pt 5-reviewable) decisions – whether tribunal was required to act reasonably when questioning witness – where tribunal’s questioning was reasonable – no jurisdictional error demonstrated

Legislation:

Migration Act 1958 (Cth), ss. 116(1)(e), 359(1), 359(2), 359(3), 359B(1),

359B(3), 360(1), 361, 501(2)

Cases cited:

Huynh v Minister for Immigration and Border Protection (2015) 232 FCR 497

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Applicant: SHELDON JAMES SALTER

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1040 of 2018

Judgment of: Judge Jarrett

Hearing date: 10 May 2019

Date of Last Submission: 10 May 2019

Delivered at: Brisbane

Delivered on: 16 May 2019

REPRESENTATION

Counsel for the Applicant: Mr McComber

Solicitors for the Applicant: Sentry Law

Counsel for the First Respondent: Ms Forder

Solicitors for the First Respondent:	Sparke Helmore
The second respondent entered a submitting appearance.

ORDERS

1. The amended application filed on 26 April, 2019 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1040 of 2018

SHELDON JAMES SALTER

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies for judicial review of the decision of the second respondent given on 10 September, 2018. That decision affirmed a decision of a delegate of the first respondent to cancel the applicant’s Class TY (subclass 444) visa pursuant to s.116(1)(e) of the Migration Act 1958.

2. The first respondent opposes the application.  The second respondent has entered a submitting appearance.

3. The original application for review, filed on 10 October, 2018 raised three grounds of review.  However, the applicant has filed an amended application on 26 April, 2019 by which the applicant abandoned one of these grounds.  The first respondent does not oppose the applicant relying upon his amended application.

4. The applicant is a citizen of New Zealand.  He first came to Australia in 1988 and has resided in Australia since 1993.  He was granted the visa on 1 September, 1994. 

5. The applicant has two children, one born in 2008 and the other in 2012.  The children reside with their mother and they live separately from the applicant.

6. The applicant has been charged and convicted of numerous offences on various dates since 1993, including drug and property offences, offences involving serious violence such as grievous bodily harm and repeated contraventions of protection orders made under the domestic violence legislation.

7. The applicant was given a notice of an intention to consider cancellation of his visa pursuant to s.501(2) of the Act in 2005, although his visa was not cancelled at that time.

8. On 23 January, 2018 the applicant was again provided with a notice of an intention to consider cancellation of his visa. He was advised that there appeared to be grounds for cancellation of his visa under s.116(1)(e)(ii) of the Act. That subsection provided:

   116  Power to cancel

   (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:

   (ii)  the health or safety of an individual or individuals;

9. The applicant was interviewed by a delegate of the first respondent.  He provided undated handwritten submissions in response to the notice. 

10. On 23 January, 2018 – so the same day upon which the applicant was given the most recent notice of intention to consider cancellation and he was interviewed by a delegate – the delegate decided to cancel the visa under s 116(1)(e)(ii) of the Act. The applicant was notified on that day of the decision to cancel his visa.

11. Relevantly, the delegate’s decision included the following reasoning (p9 of Court Book):

    The visa holder has been charged with many offences, including those of a violent nature. This indicates not only a disregard for Australian laws, but also disregard for the health or safety of an individual or individuals in Australia.

    Considering the nature of these offences, and the fact that the court has concluded that there is a proper basis to convict and sentence the visa holder, I am satisfied that there appear to be grounds for cancelling his visa under s 116(1)(e)(ii) of the Act.

12. After recording the reasons given by the applicant for not cancelling his visa, the delegate recorded (p11 of Court Book):

    I note that the visa holder has resided in Australia since 1993, having first arrived in 1988, and has immediate family onshore, including a spouse, two sons, parents and sister who is terminally ill.

    However, the numerous charges against the visa holder, including 3 counts of Contravention of Domestic Violence Order, resulting in a total of 47 months’ imprisonment, are serious and violent in nature.

    Based on the visa holder’s extensive criminal history, I am satisfied that his ongoing presence in Australia is or may be, a risk to the health or safety of individuals in a domestic relationship with him. I therefore give this factor little weight in the visa holder’s favour.

13. And then the delegate recorded (p11 Court Book):

    I acknowledge that the visa holder and his family may suffer hardship if the visa holder’s visa is cancelled. Of particular note, the visa holder has two children under the age of 18, one six and the other ten years of age.

    I must balance any potential hardship caused by a visa cancellation to the visa holder, their family members against the risk posed by the visa holder to these individuals. The visa holder has been subject 23 convictions since 2014, including three for Contravention of Domestic Violence Order, resulting in sentences of imprisonment totalling 47 months. Based on this information I consider that the visa holder is or may be, a risk to the health or safety of his immediate family members, I therefore give this factor little weight in his favour.

    (my emphasis)

14. It will be seen that one of the matters considered by the delegate was the risk posed by the applicant to his immediate family members (plural) which had been earlier identified to include his young children.

15. On 1 February, 2018 the applicant lodged an application for review of the delegate’s decision.  On 13 April, 2018 the second respondent wrote to the applicant, inviting him to appear at a hearing.  On 21 April, 2018 the applicant, through his legal representative, provided written submissions and supporting evidence to the second respondent.  

16. The hearing of the review was conducted on 23 April, 2018.  The second respondent took evidence from the applicant and Ms Kym Allingham, the mother of the applicant’s children.

17. On 17 May, 2018 the second respondent wrote to the applicant, inviting him to comment on or respond to certain information, namely an updated criminal history for him which had been provided to the second respondent under summons.  In response, on 23 May, 2018 the applicant’s legal representatives provided further submissions addressing the updated criminal history.

18. On 10 September, 2018 the second respondent affirmed the delegate’s decision.

19. As the applicant points out in his submissions, in deciding to affirm the first respondent’s decision to cancel the applicant’s visa, the second respondent found that:

    a)the discretionary power to cancel the applicant’s visa under s.116(1)(e) of the Act had been enlivened;

    b)the last of the applicant’s domestic violence contraventions involved the applicant “tracking and locating his partner and children at a women’s refuge”;

    c)the applicant’s ongoing presence in Australia poses a risk to his partner and children; and

    d)the applicant’s continued presence in Australia poses a risk to his children that outweighs the benefits that might accrue from his contribution to their welfare.

The grounds of review

1. Before discussing the individual grounds relied upon by the applicant, it is as well to set out some matters of principle about which the parties do not appear to disagree.

2. In certain circumstances s.360(1) of the Act requires the second respondent to invite an applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.  Those circumstances existed in the present case and so the second respondent issued a relevant invitation to the applicant, which he took up.

3. The opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review has to be real and meaningful. Moreover, the opportunity afforded to a witnesses nominated by an applicant pursuant to s.361(2) of the Act and from whom the second respondent decides to take evidence, must be real, meaningful and not just an empty gesture.

4. What constitutes a meaningful opportunity to present evidence on the part of either an applicant or a person nominated by the applicant under s.361(2) is fact dependent in each case.  Failure by the second respondent to afford an applicant or a person nominated by the applicant under s.361(2) of the Act (and from whom the second respondent has decided to take evidence) a meaningful opportunity to present evidence amounts to unreasonableness in the legal sense and, therefore, jurisdictional error.

5. The proceedings before the second respondent are inquisitorial and the second respondent is not in the position of a contradictor.  There is no requirement upon the second respondent to question the applicant or any witness in a particular way other than as I have discussed later in these reasons, conduct that questioning reasonably.  Nor does the Act require that the second respondent actively assist an applicant in putting his case or to carry out an inquiry in order to identify what that case might be.  It is for the applicant to advance whatever evidence or argument he wishes to advance in support of his claim that either the discretion to cancel his visa was not enlivened or that the discretion so enlivened should not be exercised in favour of cancellation.  It is for the second respondent to determine whether the claims are made out.

6. The applicant’s entitlement is to present evidence in relation to “the issues arising in relation to the decision under review”: s.360(1) of the Act.  As to what constitutes “the issues arising in relation to the decision under review” for the purposes of s.360(1) of the Act, in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, the High court said:

   34.    Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

   35.    The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

7. None of these matters of principle are in dispute.

Ground 1

1. The first ground of review is in the following terms (errors in the original):

   1. The Second Respondent failed to:

   a. afford the Applicant procedural fairness; or, in the alternatively,

   b. act reasonably in the legal sense,

   by failing to take specific relevant evidence from the Applicant in relation to issues that were relevant to the Second Respondent’s exercise of its discretion to cancel the Applicant’s visa.

   Particulars

   a. Having invited the Applicant to attend a hearing of his application under s 360 of the Migration Act 1958, the Second Respondent was obliged to conduct its questioning of the Applicant reasonably.

   b. The opportunity for a person to give evidence at a hearing held under s 360 must be meaningful.

   c. The Second Respondent had a discretion as to which questions it asked the Applicant, however those questions must give effect to the requirement that the opportunity to give information is meaningful.

   d. The Second Respondent in its questioning of the Applicant did not put to him the following factual matters which were the subject of findings made by the Second Respondent in its written reasons for decision:

   i. that the Applicant’s continued presence in Australia poses a risk to his children;

   e. The Second Respondent did not explain why it did not put the matters identified above to the Applicant during questioning, or in writing in accordance with s 359A of the Act, despite making findings of fact adverse to the Applicant in relation to those matters in determining to affirm the decision cancelling the Applicant’s visa.

   f. In failing to put the matters identified above to the Applicant during questioning, or in writing in accordance with s 359A of the Act, the Second Respondent denied the Applicant a real and meaningful opportunity to address the issues the Second Respondent considered relevant to the determination of the Applicant’s application for review.

   g. The Second Respondent’s failure to afford the Applicant a real and meaningful opportunity to address the issues the Second Respondent considered relevant to the determination of the review:

   i. resulted in a denial of procedural fairness to the Applicant; or, in the alternative,

   ii. was unreasonable in the legal sense.

   h. In the premises, the Applicant contends that the Second Respondent’s reviewable decision is affected by jurisdictional error.

2. The applicant, by his submissions, made it clear that he does not contend that the second respondent erred in finding that the power to cancel the applicant’s visa had been enlivened. 

3. The second respondent identified and weighed the following matters when determining to affirm the decision under review:

   a)the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ (otherwise unspecified);

   b)the purpose of the applicant’s stay in Australia and his claimed compelling need to remain in Australia to contribute to the raising of his family;

   c)that he first arrived in Australia in 1988 and has resided here since 1993;

   d)that his parents and children are Australian residents and that he has strong family ties to Australia;

   e)that the applicant’s visa had no conditions attached to it and so no question of non-compliance with a condition of the visa arose;

   f)the resumption of criminal offending after the applicant was warned of the possibility that his visa might be cancelled;

   g)that the cancellation of the applicant’s visa would cause emotional hardship to him and his partner and children;

   h)that the applicant has been convicted of 23 offences since 2014, including contraventions of domestic violence orders, which the second respondent had found posed a risk to the health and safety of the applicant’s partner and children;

   i)the risk to the health and safety of the applicant’s partner and children outweighed the emotional hardship that might be occasioned to them by the cancellation of his visa;

   j)the applicant’s financial contribution to the household was significantly limited by the fact and consequences of his offending behaviour;

   k)the subjective factors affecting the circumstances in which the ground for cancellation arose, particularly the stress occasioned by an accident that befell the applicant, the illness of his sister and the death of his son;

   l)that the applicant was forthcoming and cooperative in his dealings with it;

   m)that the applicant was courteous and largely cooperative before the second respondent, but significantly downplayed the facts surrounding his most recent domestic violence conviction until confronted by his partner’s evidence;

   n)that there were no consequential cancellations that would occur as a result of the cancellation of the applicant’s visa;

   o)the effect any cancellation may have on the best interests of the applicant’s children and, in particular, having regard to the evidence of his mother and partner;

   p)that, in the absence of family violence, it is usually in the best interests of children to have access to the care and support of both parents; and

   q)that no other international obligations were relevant.

4. The second respondent recognised that there was tension between the benefits to be derived by children from having access to the care and support of their parents and the need to protect children from the risks posed by domestic violence:

   22. I have given very careful consideration to the affect any cancellation may have on the best interests of Mr Salter’s children and, in particular, have had regard to the evidence of his mother and partner. I acknowledge that, in the absence of family violence, it is usually in the best interests of children to have access to the care and support of both parents. In this case, I must have regard to the proviso and to the significant domestic violence history. On balance, I find that Mr Salter’s continued presence in Australia poses risks to the children and their mother that outweigh the benefits that might accrue from his contribution to their welfare.

5. The applicant submits that the second respondent’s findings in relation to the risk posed by the applicant to his two minor children were significant and material findings central to the second respondent’s ultimate decision to affirm the cancellation of the applicant’s visa.  I accept that submission.

6. However, the risk posed by the applicant to his two minor children was an issue that arose in relation to the decision under review.  The paragraphs from the delegate’s decision that I have extracted above make that clear.  The delegate identified that the applicant had a partner and two minor children as members of his family.  The delegate recognised that the exercise to be carried out involved weighing the risks posed by the applicant to “these individuals”.  That phrase – these individuals – was a direct reference to the applicant’s family members earlier identified as including his two minor children.  Further, the delegate considered that the visa holder was or might be, a risk to the health or safety of his “immediate family members”.  His immediate family members plainly included his minor children. 

1. The delegate’s finding about the risk the applicant posed to members of his immediate family, which necessarily included his two minor children, was central to the delegate’s decision.  The issues dealt with by that finding were clearly issues arising in relation to the decision under review.  I accept the first respondent’s submission that the applicant was on notice that the risk of harm to his children was an issue arising in relation to the decision under review, because it was an issue considered dispositive by the delegate.

2. The applicant submits that when conducting its review the second respondent did not at any stage put to the applicant, or otherwise raise the possibility that his past conduct indicated that his ongoing presence in Australia might present a risk to his two minor children.  He argues that whilst he anticipated that his past convictions for contravening domestic violence might result in a finding that his ongoing presence in Australia might pose a risk to the aggrieved persons listed in those orders (Kym Allingham and Nicole Dunbar), he did not anticipate an argument that he posed a risk to his minor children.  That is despite the fact that his two minor children were named in the protection order in which Ms Allingham was named as the aggrieved person.   He advanced contentions relating to the risk to the nominated adults, but not the children. 

3. The applicant argues that he did not anticipate that the second respondent might find that his ongoing presence in Australia might pose a risk to his two minor children and, therefore, he did not advance written submissions or other material that would have been relevant to that matter.

4. But that is not to the point.  It is for the applicant to address the issues arising in relation to the decision under review in the way in which he sees fit.  I accept the first respondent’s submission that there is nothing in the second respondent’s conduct that could have indicated to the applicant that the finding as to the risk of harm to the applicant’s children would not be one of the issues arising in relation to the decision under review.  I accept that the second respondent did nothing that would reasonably lead to the conclusion that issues arising in relation to the review were limited to the risk of harm to the two aggrieved persons listed in the domestic violence orders, but not the other persons named in at least one of the orders – namely the applicant’s minor children.

5. The applicant identifies three opportunities the second respondent had to raise with him the risk of harm that it thought he might pose to his minor children – the examination of the applicant at the hearing of the application for review, the second respondent’s letter dated 17 May, 2018 inviting the applicant to respond to documents produced under summons by the Queensland Police Service and the invitation from the applicant found in his response to that letter for the second respondent to provide particulars of matters it considered relevant arising out of the Queensland Police Service material.

6. The second respondent was not required to discuss with the applicant its potential reasoning as to how or why it may disagree with him as to who might be at risk.  It was for the applicant to advance his case as he saw fit in light of the delegate’s decision and the issues arising in relation to that decision.  I accept the first respondent’s submission that the applicant was given every opportunity to address whether his continued presence in Australia was a risk to the people identified by the delegate in the delegate’s decision. 

7. In my view, the second respondent was not obliged to question the applicant about, or put to him, the risk that the second respondent thought existed to the applicant’s two minor children from him.  That was a matter that was clearly live in the review and able to be addressed by the applicant should he have chosen to do so.  The failure of the second respondent to directly question the applicant about that matter, or seek out his views on it, did not result in a failure of the second respondent carrying out its statutory task of review, nor did it result in any want of procedural fairness.

8. Moreover, having regard to the matters to which the second respondent turned its attention, the decision that it reached on the materials before it is not unreasonable in the legal sense.  It cannot be said, in my view, that no reasonable decision maker could not have arrived at the same decision as the second respondent reached here.

Ground 2

1. The second ground of review is in the following terms:

   2. The Second Respondent failed to:

   a. Afford the Applicant procedural fairness; or, in the alternative,

   b. act reasonably in the legal sense,

   by failing to take specific evidence from Kim Allingham and Jennifer Salter (the Witnesses) in relation to issues that were relevant to the Second Respondent’s decision to exercise its discretion to cancel the Applicant’s visa.

   Particulars

   a. Pursuant to s 361(2) of the Migration Act 1958, the Applicant gave the Second Respondent written notice that he wanted the Second Respondent to obtain oral evidence from the Witnesses.

   b. In having exercised its discretionary power to agree to the Applicant’s request that the Witnesses give information orally at hearing, the Second Respondent was obliged to conduct its interview of the Witnesses reasonably, including by asking question which gave effect to the requirement that the Witnesses’ opportunity to give information be real and meaningful.

   c. The opportunity afforded to the Witnesses to give information orally must be real and meaningful and not just an empty gesture, and it was the responsibility of the Second Respondent to ensure that the Witnesses’ opportunity was real and meaningful.

   d. The Second Respondent had a discretion as to which questions it asked the Witnesses, however those questions must give effect to the requirement that the opportunity to give information is meaningful.

   e. The Second Respondent in its questioning of the Witnesses did not put to them the following factual matters which were the subject of findings made by the Second Respondent in its written reasons for decision:

   i. that the Applicant’s continued presence in Australia poses a risk to his children;

   …

   f. The Second Respondent did not explain why it did not put the matters identified above to the Witnesses during questioning, despite making findings of fact adverse to the Applicant in relation to those matters in determining to affirm the decision cancelling the Applicant’s visa.

   g. In failing to put the matters identified above to the Witnesses during questioning, the Second Respondent denied the Witnesses a real and meaningful opportunity to address the issues the Second Respondent considered relevant to the determination of the Applicant’s application for review.

   h. In the premises, the Applicant contends that the Second Respondent’s reviewable decision is affected by jurisdictional error.

2. Ms Allingham is the mother of the applicant’s two children.  Whilst the applicant’s amended application refers to the second respondent’s questioning of Ms Kim Allingham and Ms Jennifer Salter, the applicant’s written and oral submissions refer only to Ms Allingham.

3. I accept that having elected to exercise its discretion to take oral evidence from Ms Allingham, the second respondent’s questioning of Ms Allingham was required to give her a real and meaningful opportunity to give that evidence and not be merely an empty gesture.  The second respondent’s questioning of Ms Allingham was required, in the circumstances, to be reasonable.  So much it is apparent from the decision of the Federal Court of Australia in Huynh v Minister for Immigration and Border Protection (2015) 232 FCR 497. That case concerned an application for a partner visa by a Mr Le who resided and was outside Australia at all relevant times. His application was unsuccessful. Because he was outside Australia, he had no right to apply for a review of the decision to refuse him a partner visa. His sponsoring spouse, however, was within Australia and she had a right to apply for a review of the refusal to grant Mr Le a partner visa. She made such an application and thus, the sponsoring spouse was the applicant on the review. Griffiths J held that Mr Le, although the visa applicant, was not an applicant for the purposes of the review application before the tribunal or the review application before his Honour.

4. Mr Le’s credit was in issue.  Mr Le gave evidence by way of two written statements to the tribunal.  The tribunal also obtained oral evidence from him but it’s questioning of him was perfunctory.  At [33] Griffiths J identified a number of matters that were relevant to the review application before the tribunal and about which Mr Le might have been expected to be able to give some evidence.  However, he was asked about none of those matters when he gave his oral evidence.

5. Griffiths J considered the statutory scheme established by Division 3 of Part 5 of the Migration Act (that part of the Migration Act which is relevant here) (at [69] – [77]). His Honour then considered the tests for legal unreasonableness as explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280. After considering those matters, his Honour held that:

   [86] Although neither Li nor Singh dealt directly with the Tribunal’s power under s 359(2) to invite a person to give information which the Tribunal considers relevant to its review, or the related duty which arises under s 359(1) to have regard to information which the Tribunal gets, the principles established in these decisions are relevant to the operation of those and other related provisions in the circumstances here.

6. Griffiths J found that the tribunal had acted unreasonably in the relevant legal sense by failing to ask Mr Le questions relating to any of the relevant matters earlier identified by his Honour.  There were ten reasons why his Honour reached that conclusion.  Significantly, the reasons included the following matters:

   a)at [89], that having determined to exercise its discretionary power under s.359(2)of the Act to invite a witness to give information orally and having complied with the requirements in s.359B(1) and (3), the tribunal was obliged to conduct its interview of the witness reasonably in the sense explained in cases such as Li and Singh.  Whilst the tribunal has a discretion as to the questions which it will raise with a person whom it invites to give information at an interview, those questions must give effect to the requirement that the opportunity to give information is meaningful.  What amounts to a “meaningful opportunity” to present evidence “will be fact dependent in each case”: Singh at [51];

   b)at [90], that the operation of the principles established in Li and Singh relating to the presumption that statutory powers and duties must be exercised reasonably in a legal sense was not confined in the circumstances of the case before his Honour to the tribunal’s initial decision to have the witness give evidence. “If the requirement of reasonableness in the legal sense does not also extend to the tribunal’s subsequent questioning of [the witness] at interview, the opportunity afforded to him to give oral evidence could be nothing more than an empty gesture.”; and

   c)at [91], the opportunity afforded to Mr Le by the tribunal’s request to give oral evidence had to be “real and meaningful and not just an empty gesture”.

7. Griffiths J thought that it was relevant to note that Mr Le was the primary visa applicant and not merely a disinterested witness.  At [100] is Honour observed: “It was his application for a visa which set in train the events which ultimately resulted in his wife seeking a review of the delegate’s decision.  Mr Le’s prominent role in the matter is also reflected in the fact that he was interviewed by the delegate as well as the tribunal and that he provided two separate written statements in support of his visa application.  The delegate’s decision refusing him a partner visa plainly had an adverse affect on the rights and interests of both his wife and himself.”

8. The first respondent sought to distinguish Huynh from the present case on two grounds.  First, the first respondent emphasised the particular circumstances of the case and the inability of Mr Le to apply on his own behalf for a review of the primary decision refusing him a partner visa.  That gave him a special status which attracted the operation of the principles explained by Griffiths J.  Second, it was said that the issues in the application for Griffiths J concerned questions of credibility relating to Mr Le and such considerations did not arise; here the case was quite different.

9. In my view, neither of those matters are a sufficient basis to distinguish Huynh.  The principles discussed by Griffiths J in that case are of much broader application than the first respondent suggests.  The way in which those principles were applied by Griffiths J was not a function of Mr Le’s status as the primary visa applicant.  He was treated as a witness (albeit a not disinterested witness) who had been required to give evidence by the tribunal pursuant to s.359 of the Act.  Ms Allingham and Ms Salter bear the same character.  Further, that the matter in issue in Huynh was the credibility of Mr Le does not detract from the applicability of the principles discussed by Griffiths J in that case to the present.  The witnesses might have been expected to give evidence about matters that were relevant to the matter under review.  On the facts of the present case, that did not concern the credibility of the witnesses who gave the evidence but other relevant matters. 

10. The questioning of Ms Salter and Ms Allingham by the second respondent in the present case was not perfunctory.  It ranged over a number of matters all of which were relevant to the second respondent’s determination.  However, as the applicant contends, the second respondent did not put to either of those witnesses directly that the applicant posed a risk of harm to his two minor children.  In the circumstances of this case, in my view it did not need to do so. 

11. First, the second respondent is not required to put to the applicant and, even less any witness, its thought processes, subjective appraisals or preliminary views: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18].

12. Second, the purpose of questioning the witness is to illicit the witness’s response to those questions.  If the witness has already given evidence in relation to the issue of concern, questioning cannot be said to be necessary.  As the first respondent points out, Ms Allingham did give evidence about the risk of harm to her children.  She gave evidence about the children witnessing the applicant in a drug induced psychotic episode at the family home and that it was “scary for my children to see”.  She gave evidence about the circumstances in which the applicant found she and the children when she was staying at a refuge.  The applicant had given his own evidence about that and it led to the second respondent causing a summons to be issued to the Queensland Police Service for the production of material that bore on that issue.

13. Finally, Ms Allingham in fact gave evidence about the risk that the applicant posed to his children.  Although she did not directly address that issue in terms, her evidence was, at pp.181 – 182 of the transcript (in reference to the applicant’s psychotic episode):

    MEMBER: Yep, so how bad was that episode?

    MS ALLINGHAM: Um, it was, yeah it was something that I would never like to see again, but I think he was really just having, it wasn’t, he wasn’t aggressive or anything like that, I think he had obviously just had a lot of bottled emotions and was, yeah, he was just trying to completely wipe those feelings obviously, and he put himself in a state where he had to be hospitalised and removed from the house, and that was scary for my children to see obviously and I couldn’t cope with that at the time, because I’d just had a child that had passed away with him, I was feeling the same emotions, but yeah, I had to do what I had to do and so I didn’t see Sheldon for a little while, but we still remain in contact and my children still look up to him as their father obviously and, um, after spending a period of time in prison, um, I have taken the children to see him, when he was, um, in the Pinkenba Detention Centre

    MEMBER: Yep

    MS ALLINGHAM:  Um, just because I didn’t want them going into that environment, when he was in prison, um, because they don’t cope very well with their ASD.

    MEMBER: Yes.

    MS ALLINGHAM: Yeah, I just didn’t visit the prison, but it was a bit more relaxed so I took them to see him at Pinkenba and they were really happy and yeah, I’d like to work on having him back in their lives again, it’s very important for them.

    (my emphasis)

14. And again at pp.184 – 185 of the transcript:

    MEMBER: All right, now as I understand it, you are - and we spoke, I think, Ms Allingham, briefly the last time, that you’re willing to consider reconciliation albeit its early days yet and you’re taking it slowly, is that right?

    MS ALLINGHAM:  Yes, there’s definitely work to be done on our marriage, um, he’s a wonderful father, but as far as it goes with our marriage, then it’s early days. So, I’d like to see him go through some steps, um, to, you know, to get things going again and know he’s got the support there of his sister and brother-in-law at the moment, but then obviously it’ll be, um, his brother-in-law when Kylie passes, who are very supportive. So, they’ve always been very close and he’s very much like I am - we don’t have contact with Sheldon when he has on the occasion done the wrong thing or slipped up, but when he’s on the right track and we’re there to help him yeah. So, yeah, it’s definitely something that I’d like to see 100%, happen in the future, is to just have our family back, the way it used to be.

    (my emphasis)

15. Mrs Salter also gave evidence that bore upon the risk posed by the applicant to his minor children.  At p.169 of the transcript she is recorded as saying:

    MRS SALTER:    And, um, I think, you know, I can understand why Kim did that, she was just trying to protect her little boys. Not because Sheldon would hurt them, but just, I think because, you know, they were fighting and that sort of thing. I mean, Sheldon’s a good dad and he loves his little boys. He would never do anything to hurt them.

    (my emphasis)

16. These passages, and those parts emphasised by me, bear on the question of the risk posed by the applicant to his children.  Ms Allingham’s evidence was that she saw the applicant as a “wonderful” father and that it was important for the children to have him back in their lives.  She had taken them to visit the applicant while he was in immigration detention.  She wanted to see the family back together.  The clear import of her evidence was that the father did not pose a risk to the children generally, except for when he had “done the wrong thing or slipped up”.  On those occasions her evidence was that “we don’t have contact with Sheldon”.

17. The applicant’s mother’s evidence was that the applicant was “a good dad” and that “He would never do anything to hurt them”.  In light of that evidence, it is not at all clear what was to be achieved by the second respondent putting to Ms Salter directly that the applicant posed a risk of harm to his children.

18. Having regard to those matters, in my view it was not unreasonable in the legal sense for the second respondent not to seek specific evidence from Ms Allingham or Ms Salter about whether the applicant’s ongoing presence in Australia might be a risk to the health or safety of her children or to put that proposition directly to them.  I do not accept that the second respondent constructively failed to exercise its jurisdiction to review the delegate’s decision.

Conclusion

1. The applicant does not establish that the second respondent’s decision is affected by jurisdictional error.  His application must be dismissed with costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date: 16 May, 2019