VKTT v Minister for Home Affairs
[2019] FCA 1018
•28 June 2019
FEDERAL COURT OF AUSTRALIA
VKTT v Minister for Home Affairs [2019] FCA 1018
File number: NSD 2140 of 2018 Judge: BURLEY J Date of judgment: 28 June 2019 Catchwords: MIGRATION – application to set aside decision of Administrative Appeals Tribunal – where the applicant’s visa was cancelled on character grounds pursuant to s 501(3A)(b) Migration Act 1958 (Cth) – where the Tribunal affirmed the decision of the Minister not to revoke the cancellation of the visa – whether the Tribunal failed to take into account mandatory considerations required by Ministerial Direction 65 – application granted Legislation: Acts Interpretation Act 1901 (Cth) s 25D
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) s 501(3A), 501(6), 501CA
Cases cited: Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46
Benrabah v Minister for Home Affairs [2019] FCA 521
Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276
Minister for Home Affairs v HSKJ [2018] FCAFC 217; 363 ALR 325
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1
Re Ruddock; Ex parte S154/2002 [2003] HCA 60; 201 ALR 437
Williams v Minister of Immigration and Border Protection [2014] FCA 674; 226 FCR 112
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Date of hearing: 27 May 2019 Registry: New South Wales Division: General National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 67 Solicitor for the Applicant: Zali Burrows Lawyers Counsel for the Applicant: Mr D. Hume Solicitor for the First Respondent: Clayton Utz Counsel for the First Respondent: Ms B. K. Nolan Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 2140 of 2018 BETWEEN: VKTT
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
28 JUNE 2019
THE COURT ORDERS THAT:
1.A writ of certiorari is issued quashing the decision of the second respondent dated 13 September 2018.
2.The matter be remitted to the second respondent, differently constituted, for re-determination according to law.
3.The first respondent pay the applicant’s costs of the proceedings save that the applicant is to pay the first respondent’s costs thrown away by reason of the adjournment of the hearing on 7 March 2019, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
1. INTRODUCTION
The applicant is a citizen of New Zealand aged 40. He first arrived in Australia in 2006 and has lived here since that time on a temporary visa. He has an extensive criminal history. Before he arrived in Australia he had been convicted of 46 criminal offences, including aggravated robbery, burglary and theft, assault with a knife, and threatening to kill or to do grievous bodily harm. On arrival in Australia he did not declare his criminal record. Since being in Australia he has been convicted of numerous other offences.
On 2 June 2016 a delegate of the Minister for Home Affairs cancelled the applicant’s visa pursuant to s 501(3A)(b) of the Migration Act 1958 (Cth) on the basis that the delegate was satisfied that the applicant did not pass the character test set out in s 501(6) of the Act and the applicant was serving a sentence of imprisonment of 12 months or more on a full time basis. In accordance with s 501CA(4)(a) of the Act, the applicant made representations to the Minister requesting the revocation of the decision. On 20 September 2016 a delegate of the Minister decided not to revoke the decision. On 29 December 2016 the applicant applied to the Administrative Appeals Tribunal for a merits review of the decision, and on 13 September 2018 the Tribunal affirmed the decision of the delegate.
The applicant then filed an application under s 476A of the Act in this Court, seeking orders that the decision of the Tribunal be set aside. The application refers to five grounds of review, but in the written submissions and at the hearing they were reduced to the following three (omitting particulars) that are said to reflect jurisdictional error:
(1)The Tribunal erred in failing to consider or properly consider certain matters set out in Ministerial Direction 65 concerning the best interests of minor children in Australia affected by the decision.
(2)The Tribunal erred in failing to have regard to certain matters set out in Direction 65 concerning the strength, nature and duration of ties of the applicant to Australia when it was obliged to do so.
(3)The Tribunal erred in failing to consider or properly consider the evidence of clinical psychologist Mercurio Cicchini when concluding at [36] that the applicant “has not previously taken the initiative to seek treatment for his drug and alcohol condition. There is no cogent evidence before me that the applicant has been rehabilitated and is deterred from drug use”.
In addition to the present proceedings, the appellant has applied for a protection visa in Australia. He claims that if he is returned to New Zealand he would be killed by members of motorcycle gangs or he would end up killing them and be imprisoned for life. On 17 February 2017, a differently constituted Tribunal rejected his protection visa claim. Because of his application for a protection visa, the name of the applicant has been anonymised. The names of the applicant’s children and grandchildren have also been suppressed in the reasons that follow.
The applicant was represented by Mr D Hume of counsel, who filed written submissions in advance of the hearing. The Minister was represented by Ms B Nolan of counsel, who also filed written submissions.
The proceedings were initially listed for hearing on 7 March 2019. However, upon the application of the applicant I adjourned the hearing until 27 May 2019. I reserved the costs of the adjournment, which now fall to be determined.
2. THE DECISION OF THE TRIBUNAL
After setting out some background matters concerning the New Zealand and Australian criminal offences of the applicant, the Tribunal found that the applicant did not pass the character test identified in s 501(6) of the Act. It then proceeded to consider the framework within which decision-makers should approach their task in accordance with Direction 65.
The Tribunal identified as “Primary Consideration A” the protection of the Australian community from criminal or other serious conduct. It noted that the applicant had an extensive history of criminal offending and that over a 20 year period he has been convicted of 46 criminal offences in New Zealand and 16 criminal offences in Australia. In New Zealand he was convicted of a number of firearm offences in 1996, 2000 and 2001. In Australia he continued his involvement with firearms. The Tribunal records that in 2015 the applicant was convicted of unlawful possession of a weapon. In 2016, he was also convicted of the offence of going armed so as to cause fear in enforcing a drug debt. The Tribunal notes that in relation to this offence, the Magistrate remarked: “Now, what makes it difficult for you is that you were the one who drove the car in, you were the one who produced the weapon, you were the one who seemed to lead the class of clowns when you got out of the car”. The applicant responded “Yes” to this statement. The Magistrate also referred to the “strongarm tactics” of the applicant. The Tribunal notes that before it, the applicant confirmed that the weapon he had was a revolver and that the possession of explosives conviction related to his possession of ammunition. The Tribunal noted that in 2016 the applicant was convicted of assaulting a police officer.
The Tribunal said, in relation to the nature of the offences:
26My assessment is that the applicant has certainly been convicted of serious violent offences. He has recently been convicted of the unlawful possession of a firearm, being a revolver, and bullets. That weapon was used by the applicant when he committed his offence of going armed so as to cause fear, and the victim was certainly aware that the weapon was concealed. The dangerous driving offence was an offence of violence because the applicant unlawfully drove the victim’s car and attempted to use the vehicle to harm the victim who was injured.
The Tribunal also noted that the applicant had given false information when he did not disclose his prior criminal behaviour when coming into Australia in 2006 and that on 21 June 2013 he had received a formal warning about the consequences of further offending in terms of his migration status. This letter had been acknowledged by the applicant, but since then the applicant had four further court appearances and was found guilty of serious violent offences after that date.
In relation to the risk to the Australian community, the Tribunal noted that the use by the applicant of dangerous drugs has been one reason why he committed the offences. The following passage is relevant to ground 3 of the appeal:
33The tenor of the evidence of the applicant is that he has been a long-term drug user. In his evidence before the Tribunal he stated that he started using drugs and alcohol when he was a teenager. His misuse of alcohol has caused difficulties as he has been convicted of four charges of driving a motor vehicle over the alcohol limit.
34The hearing of this application was delayed to provide the applicant with the opportunity to submit evidence as to his prospects for rehabilitation. While in immigration detention the applicant was seen by two psychologists (Ms Sonya Patrina and Mr Mercurio Cicchini). The report of Mr Cicchini was tendered in evidence. Mr Cicchini considers that the applicant has mental health issues from his childhood. When giving evidence Mr Cicchini confirmed that he was unaware of the criminal history of the applicant and that his role was not to provide a forensic examination of that criminal history. Mr Cicchini also confirmed that there was no contract to provide the applicant with treatment for drug or substance abuse.
35The applicant told the Tribunal of the assaults that he experienced in prison; he stated that he was assaulted in December 2015, February 2016 and June 2016. He has mentioned that the circumstances of the third assault in prison “changed the outcome of my experience in prison in Australia, that it’s time for me to change my life”. While I appreciate that the applicant has indicated an intention to change his life, which he reaffirmed in his final letter of reply, there is the difficulty in that he has been a long-term drug and alcohol user who has not had treatment for his drug and alcohol condition. While in custody he has undertaken an anger management course and a good health course.
36The applicant has stated that he has enquired with Drug Arm Australasia about services if he is released. However, he has not previously taken the initiative to seek treatment for his drug and alcohol condition. There is no cogent evidence before me that the applicant has been rehabilitated and is deterred from drug use.
Having regard to the criminal history of the applicant, the fact that he has been subject to a number of community-based orders and probation orders and also the fact that he had received a warning letter from the Department but nevertheless continued to offend, the Tribunal assessed that the protection of the Australian community from criminal or other serious conduct “weighs more heavily in favour of not revoking the cancellation of the applicant’s visa, due to the nature and seriousness of the applicant’s conduct and the risk to the community should the applicant commit further offences”.
The Tribunal then considered “Primary consideration B – the best interests of the children”. The reasoning of the Tribunal is relevant to ground 1 of the application and is set out below in full:
43Paragraph 13.2 of the Direction requires me to consider whether the revocation of the cancellation decision is in the best interests of minor children in Australia affected by the decision. [footnote referring to Direction 65 at 13.2(1)]
44The applicant has two minor children and two minor grandchildren in Australia. The applicant has been providing both financial and emotional support to his children. The children live with their mothers who provide a parental role under the Direction ([13.2(4)]). The youngest child of the applicant, a daughter, is aged 8 years of age and the applicant stated that he has decided not to be in touch with her mother who has a new partner. The applicant informed the Tribunal that he has not been in touch with the child since he was in the detention centre. The other child, a son, is aged 17 years and will soon become an adult if he is not already an adult. The applicant informed the Tribunal that he called his son every week. He last saw his son a year ago.
45I consider that the revocation of the visa cancellation is in the best interests of the children.
The Tribunal considered that “Primary consideration C – Expectations of the Australian community” weighed heavily in favour of not revoking the cancellation of the applicant’s visa, largely because of the long and repeated history of the criminal offending of the applicant and his failure to act on warnings about the consequences to his migration status should he reoffend. The Tribunal then considered Australia’s non-refoulement obligations, concluding that whilst Direction 65 required them to be taken into account, there was no plausible evidence that he would be in danger if he returned to New Zealand.
In considering the strength, nature and duration of ties that the applicant has to Australia, the Tribunal noted that he has lived in Australia for some 11 years, since he was 27 years old and that his mother, children and grandchildren live in Australia, as well as other relatives. The Tribunal said:
57A number of witness statements were provided in support of the applicant. These statements were submitted by family members, friends, previous colleagues and other acquaintances, and were indicative of the fact that the applicant has strong ties to the Australian community and has the support of his friends and family. The son and daughter of the applicant also gave evidence to indicate their support for the applicant, as did his first cousin and her husband.
It concluded that the strength, nature and duration of the applicant’s ties to Australia weighs “somewhat” in favour of the revocation of the cancellation of the visa. The Tribunal then considered that the extent of impediments that the applicant would face in New Zealand if required to return there did not weigh in favour of the revocation of the cancellation of the visa before ultimately concluding that overall, revocation of the visa should not be cancelled.
3. GROUND 1: FAILURE TO CONSIDER THE BEST INTERESTS OF CHILDREN
3.1 The arguments
In ground 1, the applicant contends that the Tribunal unlawfully failed to consider a number of matters set out in cl 13.2(4) of Direction 65, relating to the best interests of the child. He submits that the Tribunal’s fundamental duty is to conduct a “review” of the delegate’s decision pursuant to s 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act) and in doing so must consider the evidence before it, citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (Robertson J) at [103] – [115]. He submits that the bests interests of the child loomed large in the revocation decision, that the delegate had made a number of important findings in respect of the applicant’s children and grandchildren, and that the Tribunal also had before it a letter from the mother of the applicant’s younger daughter (being the applicant’s former partner) regarding the relationship between the applicant and her autistic son. Despite this, the Tribunal’s reasoning failed to address or consider a number of aspects of the requirements of Direction 65. In these reasons I call the applicant’s adult daughter “A”, her two daughters “DD” and “EE”, his 18 year old son “B”, his minor, 7 year old daughter “C”, and the autistic son of C’s mother “F”.
The respondent submits in answer that the contentions of the applicant are premised on a failure to consider clauses 13.2(4)(b), (c) and (f) of Direction 65 on the basis that there are no specific findings on those issues. However, the Minister submits that it was plainly pivotal to the Tribunal’s decision that the applicant did not provide a parental role to his minor children and that he had decided not to be in touch with the mother of his minor daughter, who had a new partner. The applicant had not been in touch with his minor daughter, C, since he been in detention. While the Minister accepts that any determination by the Tribunal about the best interests of a child should be the result of a reasoned assessment of material of sufficient probative value that the determination be a considered one, he submits the grounds of review relied upon by the applicant seek to draw the Court into an impermissible merits review. In order to complete its jurisdictional task, the Tribunal was not required to expressly record and comment upon each particular item of information or material before it, and is not obliged to set out every detail of the reasoning process which it eventually employed, citing Re Ruddock; Ex parte S154/2002 [2003] HCA 60; 201 ALR 437 at [54] (per Gummow and Heydon JJ). The choice of and weight to be given to competing information was a matter for the Tribunal: Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46 (Spender, Moore and Foster JJ) at [45]. In oral submissions, the Minister contended that even were it to be considered that the Tribunal mentioned some, but not all mandatory considerations, the outcome could not be any different because of the finding of the Tribunal at [45] that revocation of the visa cancellation is in the best interests of the children.
3.2 Consideration of ground 1
The foundation for ground 1 lies in the contention that the Tribunal failed to adhere to the requirements of Ministerial Direction 65, which is a direction made under s 499(1) of the Act. There is no dispute that failure to comply with Direction 65 may amount to jurisdictional error; Williams v Minister of Immigration and Border Protection [2014] FCA 674; 226 FCR 112 (Mortimer J) at [34] – [35]; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (Mortimer J) at [35], [36]; Minister for Home Affairs v HSKJ[2018] FCAFC 217; 363 ALR 325 (Greenwood, McKerracher and Burley JJ) at [41].
Direction 65 stipulates at cl 7(1)(b) that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Part C includes cl 13, which provides in (1) that under subsection 501(3A) of the Act, the Minister must cancel a visa if satisfied that the person does not pass the character test, but if a non-citizen who has had his or her visa cancelled requests revocation of the decision under s 501CA, the discretion to consider revocation is enlivened and the decision-maker must consider whether to revoke the cancellation. In so doing, (2) provides that the three considerations designated “primary” are: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) the expectations of the Australian community.
Ground 1 focuses on the best interests of minor children in Australia. Clause 13.2 provides that decision-makers must make a determination about whether revocation is or is not in the best interests of the child, where that child is, or would at the time when the decision is made, be under 18. Clause 13.2(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration, to the extent that their interests may differ.
Clause 13.2(4) relevantly provides as follows:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child....
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant contends that the Tribunal failed to consider the best interests of his daughter C, his grandchildren DD and EE, and the autistic child of C’s mother F. The evidence before the Tribunal shows that the applicant has three children. The eldest, A, is an adult and lives at the home of the applicant together with her two infant children and the applicant’s mother. The decision of the delegate records these family relationships. The delegate states that B and C do not live with the applicant but that he sees them regularly and provides financial support for them. The delegate also notes that his adult daughter A lives with him and that he has a close relationship with her two daughters.
These findings are supported by the evidence of the applicant before the Tribunal. For instance, the relevant relationships are stated in his Detention Client Interview and his Personal Details Form provided to the Department of Immigration and Border Protection.
In a number of letters to the Department, provided in support of his application for revocation of the decision to cancel his visa, the applicant refers to his desire to be permitted to remain in Australia so that he can continue what he characterises as his close relationship with his children and grandchildren. In these letters he identifies the unhappiness and stress that his children suffer at the prospect of his leaving Australia. This contention was amplified in the oral evidence given by the applicant at the hearing before the Tribunal. He says that he has a good relationship with C’s mother but “She’s with a new partner, and I decided not to be in touch with her because of her new partner. I think – well the situation with me being in here and with her new partner and my daughter, [C], that I find that difficult to be in touch with my daughter [C]”.
In a letter dated 15 June 2016, the applicant’s daughter A refers to 19 month old DD and 5 month old EE. She says that the applicant helped to raise her from a child and that he provides support to her and her children. In oral evidence before the Tribunal, A says that she can see a role for the applicant in her children’s lives.
The applicant’s young daughter C also wrote a letter, which was before the Tribunal, about how she misses him and hopes to see him soon.
The applicant’s son B also provided a letter to the Department saying that he relies on him emotionally. He amplified that evidence orally before the Tribunal.
Separately, the applicant’s former partner, who is the mother of C and F, set out the following matters in a letter to the Department, which emphasise the concerns for C’s well-being should the applicant be removed to New Zealand:
I... am writing to ask for the effects on our daughter [C], myself and also another child I have from a previous relationship who [the applicant] is very involved with to be taken into consideration when considering [the applicant’s] future here in Australia.
....
[C] and myself have visited [the applicant] regularly while he has been incarcerated and when we cannot make it up to visit, [he] contacts us either via phone or via letters back and forth at least once a week.
[The applicant] is a huge part of our lives. As a co-parent, friend and also financially... I have had a rough time lately as my son was recently diagnosed with Autism and [the applicant] has been a great comforter and someone to lean on for support. [He] is great with our daughter who adores her dad and also amazing with my son who is very close to [the applicant]. The effects on my children if [the applicant] was no longer there would be tremendous. I have had to inform our daughter of her father’s current situation and she is greatly distressed... the effects on my son would also be worrying because due to his Autism he doesn’t handle change well and [the applicant] has been one of the only consistent men in his life... If [the applicant] was removed from Australia we would struggle without him. We wouldn’t be able financially to visit often if not at all and our daughter would lose that relationship with her father...
It may be noted that in her letter, C and F’s mother also raises the interests of F, who has recently been diagnosed with autism, as a child whose interests will be affected by non-revocation. In a further letter, she refers to a plan that the applicant has to move to Perth. She supports this, and says that C could go to visit for school holidays. She says that if he goes to New Zealand, where he has no family or other support, she would not feel comfortable sending C to visit.
These materials indicate that the Tribunal had before it four relevant children whose interests it should take into account in accordance with Direction 65: his daughter C, his grandchildren DD and EE, and F.
The reasons given by the Tribunal in relation to the best interest of children are set out at [13] above.
The reference to “two minor children” in [44] of the Tribunal’s reasons is plainly to the applicant’s son B and daughter C (although by the time of the decision of the Tribunal, B was no longer a minor). The reference to the two minor grandchildren is to DD and EE. Although the grandchildren are mentioned in the first sentence, they are not further referred to in the balance of the paragraph. The reference to “children” that follows is clearly enough a reference to the applicant’s children. To the extent that this is otherwise unclear, it is apparent from the content of the second sentence (given that B and C live separately from the applicant and with their mothers whereas the grandchildren and their mother live in the applicant’s home) and from the balance of the paragraph.
The following matters inform my conclusion that the Tribunal has failed to discharge its obligation by misapplying paragraph 13.2 and thereby constructively failed to exercise jurisdiction.
First, a claim was expressly advanced in the evidence before the Tribunal going to the adverse effects of a decision not to revoke cancellation upon the grandchildren or the son of the applicant’s former partner. Clause 13.2(3) requires that the best interests of each child should be given individual consideration. The reasons evince no consideration of any of the factors set out in cl 13.2(4), whether by way of reference to the nature and duration of the relationship between the children and the applicant (a), the extent to which the applicant is likely to play a positive parental role in the future (b), the likely effect that any separation from the applicant would have on the child (d) or any known views of the child (e).
Although the applicant’s own children are mentioned, the circumstances of the relationship between the applicant and his young daughter C, including the effect of separation on C, her own wishes in relation to the separation from her father; and the likely effect of separation, are not discussed.
The Tribunal was obliged to give reasons for its decision pursuant to s 43(1) of the AAT Act. That duty attracts s 25D of the Acts Interpretation Act 1901 (Cth) which requires, relevantly, that its reasons also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. This obligation was considered in the context of cl 13.2 of Direction 65 by Mortimer J in YNQY:
34The structure of para 13.2 is that para 13.2(1) imposes a positive obligation on decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. The use of the phrase “make a determination” is unequivocal. It requires a positive finding or conclusion to be made. So much is also apparent from the use of the phrase “whether revocation is, or is not…”. The decision-maker (here, the Tribunal) must reach a conclusion, one way or the other, on this matter. Combined with the Tribunal’s obligation to provide reasons for its decision, including its material findings of fact and the evidence or material on which those findings were based (see s 430 of the Act), it is clear that the Tribunal’s task will involve it examining the evidence and material before it in order to make this determination, and then reasoning out, in a written form, what its findings and conclusions are on this determination. Recognising how this determination function will be performed, and what reasoning process the Tribunal would need to adopt, and set out in its reasons, is important in resolving the Minister’s contentions about the consequence of the Tribunal’s error.
The written reasons may be taken to be a statement of those matters adverted to, considered, and taken into account by the decision-maker, and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [16] (Allsop CJ and Katzmann J). In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 (Katzmann, Griffiths and Wigney JJ), the Tribunal’s failure to address a particular letter provided by the applicant was held to give rise to jurisdictional error. The Court at [34] made observations as to the nature of the exercise in determining whether a matter is considered by the Tribunal or not:
34The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
This passage has since been adopted by another Full Court in HSKJ at [46].
The Court can more readily infer that a matter has not been considered when there is information before the decision-maker addressing that issue, but it is not referred to in the reasons. In Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276 at [23], Basten JA (Leeming and Whit JJA agreeing) said:
23Where there is apparently credible and relevant material before the decision maker, which appears to engage with a mandatory consideration, and there is no reference to that material in the reasons provided by the decision-maker, it may be inferred that no regard was had to it. That may allow the inference that no regard at all was had to the mandatory consideration.
In the present case there is ample scope to arrive at the inference that the Tribunal failed to take into account a number of the considerations set out in cl 13.2. I am able comfortably to conclude that the best interests of the grandchildren DD and EE, and F, son of the applicant’s former partner, were not given individual consideration having regard to the factors set out in cl 13.2(4). It is true that consideration of the particular factors as set out in (4) is limited to only those children considered to be “relevant children” by the Tribunal. But the absence of any reference beyond the mention in the first sentence of [44] to the grandchildren persuades me that it is not to be inferred from the reasons given by the Tribunal that it considered the best interests of the grandchildren in the manner required. Further, although the Tribunal may well have regarded the potential role of the applicant in relation to F to be slight, the absence of any mention of that child in the Tribunal’s reasons indicates that his interests were not the subject of consideration at all.
In relation to the applicant’s daughter C, the position is more nuanced. The Tribunal at [44] recognises that the applicant has been providing her with financial and emotional support. It states that he has decided not to be in touch with her mother, who has a new partner, and has not been in touch with C since he was put in detention. However, nowhere does the Tribunal advert to considerations of: whether the applicant is likely to play a positive parental role in the future (cl 13.2(4)(b); the likely effect any separation would have on her (cl 13.2(4)(d)); or any known views of the child (cl 13.2(4)(f)). Having regard to the whole of the reasons of the Tribunal, I am not able to infer that this was because it did not consider such matters to be irrelevant, but that it failed to take them into account.
The Minister correctly points out that the Tribunal was not required expressly to record and comment on each particular piece of information or material before it. Nor is it obliged to comment on why it rejected a particular item or attributed less weight to it than another item. The choice of, and weight to be given to competing information is a matter for the Tribunal. However, it was obliged to have regard to the mandatory considerations reflected in cl 13.2, which, for the reasons set out above, I consider that it failed to do.
Nor is it an answer, as the Minister asserts, that in [45] of its reasons the Tribunal considered the revocation of the visa cancellation to be in the best interests of the children. That finding is not a panacea for a failure on the part of the Tribunal to consider matters properly, or to comply with Direction 65. The obligations of a decision-maker, as set out in s 25D of the Acts Interpretation Act and the authorities to which I have referred above, make clear that the giving of reasons is to be regarded as a window into the thought process of the Tribunal. Material matters that are raised on the evidence or made mandatory under Direction 65 must form part of the process of weighing considerations. It is not for this Court to disentangle those complex considerations and deem that by reaching a conclusion such as that in [45] they have been taken into account. To do so would be impermissibly to drift into a merits review. The question for the Court upon review is to consider whether the Tribunal performed its statutory task. For the reasons stated, I find that it has failed to do so.
Accordingly, ground 1 of the application must succeed.
4. GROUND 2: FAILURE TO TAKE INTO ACCOUNT STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
4.1 The Arguments
In ground 2, the applicant contends that his ties to Australia and the effect of revocation on his immediate family were important issues. He submits that the applicant’s relationship with his family is close, and that there was a potential adverse impact on family members if the cancellation was not revoked. The Tribunal addressed the strength, nature and duration of the applicant’s ties to Australia at [56] – [ 59] but, it may be inferred, failed to have regard to the mandatory considerations set out in Direction 65 at cl 14.2(1)(b) and accordingly fell into jurisdictional error.
The Minister makes similar submissions in answer to ground 2 as for ground 1. He submits that the Tribunal is only obliged to consider the matters raised in Direction 65 cl 14(2)(1)(b) where it forms the view that those matters are relevant and it is not obliged to consider afresh, in every case, all possible issues presented by an applicant’s claim, citing HSKJ at [52], [54].
4.2 Consideration of Ground 2
In light of my findings in relation to ground 1, it is not necessary to address ground 2 in detail.
By clause 14 of Direction 65 the Tribunal is required, in deciding whether to revoke the mandatory cancellation of a visa, to take into account “other considerations”, one of which is the strength, nature and duration of the applicant’s ties to Australia. Relevantly, cl 14.2 requires the Tribunal to have regard to:
(b)The strength, duration and nature of any family or social links with Australian citizens, Australia permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The family links identified include links to children, even if those children are 18 by the time of the decision; Benrabah v Minister for Home Affairs [2019] FCA 521 (Steward J) at [36].
The Delegate found that the applicant has resided in Australia for 10 years and has family and social ties by way of his mother, two sisters, two brothers, an adult daughter and son, one minor child and two grandchildren, a point that is also emphasised in the applicant’s evidence before the Tribunal, as well as in letters to the Department that were before Tribunal from his mother, older sister, younger sisters and younger brother and cousins.
The Tribunal’s reasoning in relation to this point was as follows:
Strength, nature and duration of ties
56The applicant has lived in Australia from the age of 27 years. At the date of the hearing he was 38 years of age. His mother, children and grandchildren live in Australia. He also has a number of relatives in Australia.
57A number of witness statements were provided in support of the applicant. These statements were submitted by family members, friends, previous colleagues and other acquaintances, and were indicative of the fact that the applicant has strong ties to the Australian community and has the support of his friends and family. The son and daughter of the applicant also gave evidence to indicate their support for the applicant, as did his first cousin and her husband.
58The respondent relies upon para 14.2(1)(a) of the Direction which states that decision-makers are to have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent
contributing positively to the Australian community.59It is apparent from the applicant’s criminal history that he began offending three years after his arrival in Australia. This requires me to afford less weight to the factor regarding length of time he has resided in Australia. I consider that the applicant has positively contributed to the Australian community by his employment. My consideration of the strength, nature and duration of the applicant’s ties to Australia weighs somewhat in favour of the revocation of the cancellation of the visa.
It may immediately be noted that in its reasons the Tribunal did not quote or refer to cl 14.2(1)(b) of Direction 65. Of course, that is not conclusive evidence that it did not have regard to the strength, duration and nature of any family or social links of the applicant with Australian citizens, including the effect of non-revocation on the applicant’s immediate family in Australia, but it is not a promising start. Indeed, nowhere in the Tribunal’s reasons may specific reference to, or consideration be found of:
(a)hardship to his adult children, his daughter A and his son B, who both gave evidence as to the adverse effect on them of deportation;
(b)the effect on the mother of C who gave evidence of the support that the applicant provides to her, and to her autistic son F; or
(c)the effect of non-revocation on the applicant’s mother who lives in Sydney, while the applicant lives in Brisbane.
The Minister submits that the reference at [57] to statements submitted by family members suggesting that he has “strong ties to the Australian community” and the “support of friends and family” should be understood as referring to all members of the applicant’s family and reflect an understanding of the content and tenor of the evidence before it. He submits that the only reasonable inference to be drawn from the conclusion at [59] that the “strength, nature and duration of the applicant’s ties to Australia weigh somewhat in favour of revocation of the cancellation” is that the Tribunal understood that the effect of revocation would be adverse to each of the applicant’s relatives in Australia.
The statement in [57] that the applicant has strong ties to the Australian community and has the ‘support’ of his friends and family, including his son and daughter, does not engage with the requirement of cl 14.2(1)(b) that the Tribunal have regard to the strength, duration and nature of any family or social links, including the effect of non-revocation on the non-citizen’s immediate family in Australia. Indeed, the reasons provide no indication of any consideration of the nature of the applicant’s links with his daughter A, son B or his mother, three people who gave evidence that they would suffer adverse effects if he were deported. Having regard to the authorities identified in [43] – [46] above, I am not able to infer from the reasoning set out in the decision of the Tribunal that it regarded such considerations to be irrelevant. I conclude that the Tribunal failed to have regard to these considerations at all.
Accordingly, ground 2 succeeds.
5. GROUND 3: FAILURE TO CONSIDER PSYCHOLOGIST EVIDENCE
In ground 3, the applicant contends that the Tribunal erred in failing to consider or properly consider the evidence of a clinical psychologist. In his oral evidence, Mr Cicchini gives the following evidence:
And it was not your remit to treat [the applicant] for any drug or alcohol issues that he may have? --- Well, when one engages in treatment, one doesn’t exclude anything. But certainly, there was no contract, or – to engage in treatment of alcohol or substance use, or any other – what I’m saying, though, is when one engages in treatment, those issues are pertinent, and they get addressed.
The applicant submits that the statements made at [35] of the Tribunal’s reasons that the applicant has “not had treatment for his drug and alcohol condition”, and at [36] where it says that he has not previously “taken the initiative” to seek treatment for his drug and alcohol condition, and that there was “no cogent evidence” before it that the applicant has been rehabilitated and is deterred from drug use, were contrary to cogent and probative evidence. The applicant contends that this evidence was not considered, and accordingly reflected jurisdictional error.
The evidence that the applicant relies upon in support of this ground is a letter in which the psychologist says that the applicant has a “strong desire to rehabilitate himself by distancing from antisocial activities and peers”. The applicant also relies on the passage of oral evidence above where the psychologist accepts in cross examination that when he was engaged to treat the applicant in relation to his mental health issues, there was no contract to treat alcohol or substance use, but notes that this kind of treatment “doesn’t exclude anything” and that “when one engages in treatment, those issues are pertinent and they get addressed”.
This ground appears to be a challenge to the weighing of the evidence conducted by the Tribunal, which is not a matter appropriate for review by this court. I would not infer from the content of the reasons of the Tribunal that it did not take into account the evidence of Mr Cicchini. In [34] of its reasons, the Tribunal refers both to Mr Cicchini’s written report and also his oral evidence concerning the terms of his contract of engagement.
Accordingly, ground 3 must be dismissed.
6. COSTS AND DISPOSITION
At the hearing, the Minister sought an order for costs on the basis of the adjournment of the hearing on 7 March 2019. I directed that the parties file short written submissions on the subject. They each rely on evidence, the Minister on two affidavits affirmed by Aaron Moss who is employed by the solicitors representing the Minister, and the applicant on an affidavit from his solicitor, Zali Burrows.
It is my view that the Minister is entitled to an order that the applicant pay the costs thrown away by reason of the adjournment, to be assessed if not agreed. The applicant made a late application that the hearing fixed for 7 March 2019 be adjourned. The reasons given for the application were because counsel briefed in the matter was unable to appear, and because the applicant did not have the funds to pay alternative counsel. No explanation was provided by the solicitor as to whether or not counsel came to be unavailable at short notice or why. The adjournment was opposed. Because of the significance of the proceedings to the applicant, and the danger that he would not be represented by counsel if it was refused, the adjournment was granted. However, the costs thrown away should not be borne by the Minister.
The Minister contends that an order for indemnity costs in the amount of $6,354.10 should be made, that being a lump sum assessment of the costs incurred. That lump sum includes fees identified in Mr Moss’s affidavit evidence, and includes: (a) preparation, filing and service of a list and bundle of authorities; (b) preparing for final hearing on 7 March 2019, including the cost of preparing and settling written submissions; (c) reviewing and responding to the request for adjournment; (d) considering what is characterised as non-compliance with court orders; (e) correspondence about the contents of the court book; (f) drafting and settling the affidavits seeking costs; (g) a half day brief on hearing.
I cannot see how the costs described in (a), (b), (d) and (e) are related to the question of the adjourned hearing. The costs in (f) are some 55% of the solicitors’ costs claimed and suggest that the present application for costs is somewhat out of proportion to the inconvenience caused by the adjournment. It might be regarded as an example of over-egging the pudding. The costs in (g) should not be borne by the applicant. For these reasons, I do not consider that the lump sum so assessed is a reliable indication of the costs thrown away by reason of the adjournment. Nor do I consider that the conduct of the applicant in seeking the adjournment was such as to warrant an order for indemnity costs.
Having regard to the reasons set out above, the orders that I will make are:
(1)A writ of certiorari is issued quashing the decision of the second respondent dated 13 September 2018;
(2)The matter be remitted to the second respondent, differently constituted, for re-determination according to law;
(3)The first respondent pay the applicant’s costs of the proceedings save that the applicant is to pay the first respondent’s costs thrown away by reason of the adjournment of the hearing on 7 March 2019, to be assessed if not agreed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 28 June 2019
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