Waqa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FCA 990
•31 July 2023
FEDERAL COURT OF AUSTRALIA
Waqa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 990
Appeal from: Application for extension of time: Waqa v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 3791 File number: QUD 49 of 2023 Judgment of: LOGAN J Date of judgment: 31 July 2023 Catchwords: MIGRATION – application for extension of time to review Administrative Appeals Tribunal (Tribunal) decision to affirm the Minister’s decision not to revoke the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) – whether there is adequate explanation in respect of delay and whether the proposed judicial review application enjoys sufficient prospect of success to warrant the granting of an extension of time – where the applicant is held in immigration detention with limited access to computer resources and suffered ill health – extension of time warranted – where the Minister does not oppose the extension of time – whether the Tribunal fell into jurisdictional error by failing to take into account the interests of two minor children; the applicant’s siblings – where paragraph 8.3 of Ministerial Direction 90 (Direction 90) requires a decision-maker to address whether non-revocation is in the best interests of a child affected by decision – where the decision maker must consider the best interests of each child individually to the extent that their interests differ including the extent to which the non-citizen is likely to play a positive parental role in the future; the likely effect that any separation from the non-citizen would have on the child; and any known views of the child – where the applicant and minor siblings gave evidence as to the considerations in para 8.3.4 of Direction 90 – where the Tribunal failed to apply the terms of para 8.3 of Direction 90 – whether the error is material in context of the applicant’s criminal offending Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 considered – the applicant need only show a realistic possibility
Held: errors material – Tribunal decision quashed
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 33
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
Cases cited: BDQ19 v Minister for Home Affairs [2019] FCA 1630
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 55 Date of hearing: 31 July 2023 Counsel for the Applicant: Ms Hannah Ryan Solicitor for the Applicant: Kinslor Prince Lawyers Counsel for the First Respondent: Mr B McGlade Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
QUD 49 of 2023 BETWEEN: MELIKISETEKI TEKANI A'TAKIRAU WAQA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
31 JULY 2023
THE COURT ORDERS THAT:
1.The applicant be granted an extension of time to 15 February 2023, to review the decision of the second respondent made on 21 October 2022.
2.The draft originating application as annexed to the affidavit of the applicant, dated 23 June 2023, stand for all purposes as the originating application filed within time with any need to separately file and serve being dispensed with.
3.The decision made by the second respondent on 21 October 2022 be set aside and, in lieu thereof, it be ordered that:
(a)a writ of certiorari be issued quashing the decision; and
(b)a writ of mandamus be issued directing the second respondent to determine the applicant’s application to review the first respondent’s decision according to law.
4.The first respondent pay the applicant’s costs of an incidental to the application, to be fixed by a Registrar in a lump sum if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
Mr Melikiseteki Tekani A’takirau Waqa (Mr Waqa) is a citizen of the Republic of Fiji. He is presently 29 years of age. Mr Waqa came to Australia on 5 August 2010. He was then aged 16. His entry into Australia was lawfully made, pursuant to a Regional Sponsor Migration Scheme. Mr Waqa has remained in Australia ever since save for a brief period of less than three months when he moved abroad. On 27 September 2021, Mr Waqa’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act).
That cancellation was in itself an unremarkable event, flowing from satisfaction on the part of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) that Mr Waqa had a substantial criminal record. That satisfaction was grounded in his conviction and sentencing in the Queensland Magistrates Court on 19 August 2021. At that time he received a head sentence of imprisonment for 18 months in respect of criminal conduct, more particularly described in reasons given by the Administrative Appeals Tribunal (Tribunal) in circumstances I shall shortly relate.
Upon notification of the decision cancelling his visa, Mr Waqa promptly sought, on 13 February 2022, revocation of that cancellation decision pursuant to s 501CA(4) of the Act. A delegate of the Minister decided on 29 July 2022 not to revoke that cancellation.
As was his right, Mr Waqa sought the review of the Minister’s delegate’s decision. He did so by the lodgement of an application on 5 August 2022. In so doing, he engaged a timeline which, for reasons which have commended themselves to Parliament, required the Tribunal to make its review decision in quite short order.
After an initial case management hearing and a deferment for good reason of the initially appointed hearing date, the Tribunal embarked on the hearing of the review application on 19 October 2022. Reflecting the constrained statutory timeline for decision-making under which the Tribunal was obliged to discharge its function, the Tribunal made its decision on 21 October 2022. The reasons for that decision were given afterwards on 9 November 2022.
On 15 February 2023, Mr Waqa filed in this Court an application for an extension of time within which to seek the judicial review of the Tribunal’s decision. The application was originally listed for hearing in May this year. However, for good reason, associated with an unfortunate decline in Mr Waqa’s health and wellbeing, that hearing was adjourned.
At the same time, the Court made a pro bono referral order. There is no right to legal aid in a case such as the present. All that the court can do is, in accordance with its practice, identify cases where assistance would be desirable and rely upon the goodwill and public spirit of the Bar and the solicitor’s branch to provide representation pro bono. This has been amply undertaken by Ms Ryan of counsel and her instructing solicitor, to their enduring credit. That is not to say, of course, that the Minister has been other than well-represented, only to note the assistance offered by Mr Waqa’s counsel and solicitor to the administration of justice by their taking on his case.
The question as to whether or not an extension of time should be given always involves an interplay between whether or not there is an adequate explanation in respect of the delay and whether the proposed judicial review application enjoys a sufficient prospect of success to warrant the granting of an extension of time. It is clear from an affidavit made by Mr Waqa and read in support of the extension of time application that a combination of inadequacy, it must be said, of access to computer resources while in immigration detention and his self-health situation, not indifference to seeking to challenge the Tribunal’s decision provide the occasion for the delay.
Further, having regard to the grounds as specified in the proposed originating application, as developed carefully in the related outline of submissions prepared by his counsel and filed in the proceeding, I am well-satisfied that each of the elements I have mentioned is such that an extension of time is warranted. Indeed, the Minister, with respect, very fairly, did not oppose the granting of an extension. That may well reflect recognition on the Minister’s part both as to the adequacy of the explanation and that, at least one of the grounds, if not others, was sufficiently arguable.
That is not to say that the Minister conceded any ground, quite the reverse. Issue is joined in respect of each of the grounds.
The grounds of review as specified in the proposed application are as follows:
1. There was a constructive failure to exercise jurisdiction.
a.A decision-maker can commit jurisdictional error by acting on a misunderstanding of evidence or Direction 90.
b.In the context of considering paragraph 8.1.1(1)(b)(ii), the Tribunal took into account Applicant’s offending that do not fall under offences against government representatives. i.e. contravene direction or requirement are not offences against the government representatives.
c.In so doing, the Tribunal took into account irrelevant consideration [36]-[38] and made an error of law, which was material.
2. The Tribunal had regard to an irrelevant consideration.
a.The applicant repeats and adopts Ground 1 for the purposes of this ground.
3.There was a constructive failure to exercise jurisdiction.
a.By statutory force of s 499 of the Migration Act 1958 (Cth), the Tribunal was mandatorily required to have regard to the applicant’s health when considering the extent of impediments if removed from Australia consideration.
b. First, before the Tribunal [52] - [77]:
•The applicant gave oral evidence that main reason behind his offending has derived from his problems with drugs and alcohol in the past;
•that he has had a significant problem with drugs and alcohol in the past and that he has abused those substances as a means of supressing his emotions;
•he agreed that his difficulties with alcohol are greater than those he has with illicit drugs;
•he agreed that when he drinks too much alcohol he becomes both angry and violent;
•with reference to rehabilitative treatment, the applicant agreed that be better more equipped if I do finish the courses.
c.Secondly, the Tribunal found [77) that the Applicant has had, and continues to have significant issues with alcohol and illicit drug abuse. He is barely at the start of any rehabilitative program or process.
d.In the context of considering the other consideration of the extent of impediments if removed from Australia, the second respondent was mandatorily required to consider the applicant’s health under paragraph 9.2(1)(a) of Direction 90.
e.The second respondent failed to consider the applicant’s health issues related to unresolved and sustained alcohol/drug abuse problems.
f.Moreover, regardless of what the applicant claimed, an unarticulated claim might “clearly emerge” before a decision-maker from their own findings and the material before them upon which the findings are reached.
4.The Tribunal failed to give, proper, genuine, and realistic consideration to the merits of the applicant’s case.
(a)The Tribunal was mandatorily required to have regard to the extent of impediments the applicant would face if removed to his home country.
(b)The applicant repeats and adopts Ground 3 for the purposes of this ground.
[sic]
It is convenient to commence with the ground which alleges jurisdictional error on the part of the Tribunal by a failure to take into account an integer of Mr Waqa’s representation, namely, the interests of two of his siblings who are minors, and related to that, an alleged failure to take into account a relevant consideration flowing from para 8.3 of a direction, Direction 90, issued by the Minister pursuant to s 499 of the Act.
The contents of such directions are relevant considerations. Paragraph 8.3 of Direction 90 requires a decision-maker, and this includes the Tribunal standing in place of a delegate of the Minister, to address whether non-revocation is in the best interests of a child affected by the decision. Moreover, para 8.3 requires that to be done by reference to the best interests of each such child individually to the extent that their interests differ. In amplification, para 8.3.4 identifies particular factors which must be considered where relevant. These include the nature and duration of the relationship between the child and the non-citizen:
…
(b)the extent to which the non-citizen is likely to play a positive parental role in the future
…
(d) the likely effect that any separation from the non-citizen would have on the child [and];
…
(f)any known views of the child …
In this case, as in so many concerning successive stages in administrative decision-making that later fall for scrutiny on judicial review, it is important to understand the administrative decision-making continuum. In terms of the alleged jurisdictional error under present consideration, that continuum materially commences with Mr Waqa’s application for revocation of the visa cancellation dated 13 February 2022 and the contents of the Personal Circumstances Form completed by him.
In response to the pre-printed question on the form, “Describe your relationship with each of your minor children above including how you contact/see the child/ren and the role you play in your life.” Mr Waqa stated:
‘JONE’ & ‘KASA’ ARE MY 2 YOUNGEST SIBLINGS, WE SHARE A BOND LIKE ANY TYPICAL BROTHER & SISTER. ‘JONE’ TRYS TO BE BETTER THAN ME AT ANYTHING, WHILE WE’RE BEING PROTECTIVE ELDER BRO’S TO ‘KASA’. I SEE THEM EVERY WEEK WEATHER IT’S WEEKDAYS OR WEEKENDS; FROM SCHOOL DROP OFFS – PICKS UPS, RANDOM DINNER DATES @ MY DAD’S/MUM’S PLACE – SUNDAY LUNCHES & TRADITIONAL GATHERS, RUGBY AND NETBALL TRAINING I SEE & MAKE TIME FOR THEM AS MUCH AS I CAN. I PLAY 2 ROLES IN BOTH THEY’RE LIVES; A BIG BROTHER FIRST & ALSO A FATHER. SINCE WE ALL SHARE THE SAME ALCOHOLIC FATHER, I KNOW & UNDERSTAND EVERYTHING THEY GO THROUGH, OUT IN PUBLIC & BEHIND CLOSED DOORS. OUR FAMILY IS A BROKEN ONE, WITH OUR MOTHER LIVING IN SYDNEY NSW & OUR FATHER LIVING IN BILOELA QLD. THEY/WE DON’T HAVE THE LUXURY OF HAVING BOTH PARENTS THERE IN PERSON WHEN WE GO THROUGH THE ‘LEMONS LIFE HAS TO OFFER’ BUT WITH A GOOD SIBLING BOND WE HAVE, WE’RE ABLE TO BE THERE FOR ONE ANOTHER. EVEN BEING IN HERE & JAIL I’M LUCKY ENOUGH CALL THEM EVERY NOW & THEN JUST CATCH UP & OFFER AS BEST LIFE LESSONS AS I CAN. AND MAKING SURE THEY DON’T GO DOWN THE PATH I WENT DOWN DUE TO NOT HAVING A POSITIVE PARENTAL SUPPORT OR BIG BROTHERS ADVICES LIKE I GOT FROM THE BIG BROTHERS I MADE IN JAIL & HERE; WHICH I WISH I HAD BEFORE THINGS WENT WRONG.
[sic]
In response to the question, “Describe any current impact of the other minor children, and/or any likely impact on them in the event of a negative s501 decision outcome (i.e. a non-revocation or visa cancellation/refusal decision)”, Mr Waqa stated:
AS I DESCRIBED ABOVE I REKON I PLAY 2 ROLES TO MY SIBLINGS AND WHICH EXTENDS TO ALL THE CHILDREN IN MY LIFE; WHICH IS A BIG BROTHER & A FATHER. A BIG BROTHER; BY PROVIDING GUIDANCE & PROTECTION. A FATHER; AS BEING MY YOUNGER SIBLINGS KEEPER IN THE MIDST OF OUR PARENTS DIVORCE.
The second of Mr Waqa’s answers is also in respect of his only natural child. The Jone and Kasa referred to in the other answer are his two younger siblings. Jone was born on 8 October 2006, Kasa on 16 January 2009. Mr Waqa has two older adult sisters.
Annexed to Mr Waqa’s application for revocation was a letter of 29 October 2021 apparently authored by Kasa but authored not only on her own behalf but also on behalf of Jone. That letter states:
Respected authorities,
Hello, my name is Kasa Waqa, I am 12 years old and I have four siblings all older than me. Mell is my eldest brother and as you know he is in jail and might be getting deported back to Fiji. Although Fiji is a great place, I need my older brother. It’s not the same to be talking on the phone than it is talking in person. He’s been my rock ever since I came back to Biloela, he’s helped me through tough times at home, and always held my hand through everything. Meli had made some bad decisions and I understand that, but he is my older brother and I can’t loose him. Not again. The first time my other 15 year old brother Jone and I found out Meli would be in jail we couldn’t believe it. We had just come back from not seeing him for 5 years and rebuilt our relationship with him, then found out he was being taken away from us. It was a shock but the thought of still being able to visit him and see him was treasured in our minds, but now we can’t treasure that thought anymore, because of the expenses even if we did get the Covid vaccine I still wouldn’t be able to see my brother as often as I need. Take away the bad decision making and the tough looks Meli is a really soft person with a great personality. He’s trustworthy, reliable and even if he hasn’t realised it, he is a great person. I miss him more than anything right now and I can’t imagine how I would feel if he were to go back to Fiji.
Sincerely, Kasa and Jone
[sic]
At that time, that is October 2021, the material before the Tribunal disclosed that Jone and Kasa were then living with their and Mr Waqa’s father in Biloela. The material also disclosed that the occasion for the gap in seeing Mr Waqa for five years was the result of a marital breakdown between their mother and father which had seen their mother move with them to Sydney. It was in the context of the differing impact as between New South Wales and Queensland of public health restrictions associated with the then COVID-19 pandemic that Kasa and Jone had moved back to Biloela.
In terms of the continuum, the next document of relevance is Mr Waqa’s statement of facts, issues, and contentions lodged by him with the Tribunal. Mr Waqa appeared on his own behalf in the review proceedings before the Tribunal. That quality is evident in the statement of facts, issues, and contentions. Significantly, the document is responsive to the Minister’s earlier lodged statement of facts, issues, and contentions. It materially updates the factual position concerning Kasa and Jone.
In that document, Mr Waqa states, and this is at p 251 to 252: -
Even though I missed out on precious family with my son I wished I had come to jail earlier in life so that it could have made me realise earlier in life I was doing life all wrong. But I believe everything happens for a reason and I’m in here so I can show my son, my partners kids, my minor siblings and any other kids life I come across that I’m here to listen to them and help nurture them into future leaders of this land and this planet.
[sic]
In that document, at p 252, Mr Waqa also states:
Your honour concerning my siblings care; they don’t live with my father any more due to his unwillingness to take AA meetings and a need to quit drinking alcohol. Family means alot to me, and if I was out there they would be at my house again living there like they did last time my father did on an alcoholic binge. They will not be going anywhere with our father. Till he knuckles down, and quits alcohol all together like I have.
[sic]
A little earlier in that same document at p 248 of the court book, at para 3 on that page, Mr Waqa stated:
Early 2014 my parents divorced due to unsolved family matters that is not mine to tell, so I’m helping my mum and younger siblings move out and having to step up to the plate being the man of the family at only 20 years old, with no advice from anyone I could look up to, trying my hardest not to go down the same path my father went down to avoid what I feared the most (becoming like him). I always told myself when I grew older and stronger I’d be able to protect my mum and siblings from him but when faced with the opportunity to lay my hands on him I froze with the thought in my head; “if I did I would have been just like him” as he laid his hands on his own father, Thus repeating the cycle, which I firmly wanted to stop.
[sic]
Mr Waqa gave oral evidence at the Tribunal’s hearing. During that oral evidence, he was the subject of a very searching cross-examination indeed by the Minister’s representative. To make that observation does not, I emphasise, carry with it any adverse criticism. But it is a noteworthy feature of that cross-examination, thorough though it was, that there was no suggestion in it that Mr Waqa was in any way inaccurate in his statement of facts, issues, and contentions, with respect to the statements made by him concerning Kasa and Jone.
In the course of that cross-examination, the following interchange occurred (at p 50):
So, you haven’t say down with Ellysha and said, “Look, Ellysha, I’ve got my visa back now. I went and saw my mother for a couple of weeks and now I'm back at Biloela”?---Yes.
“So, how about we put the child in a car for four and a half hours and you just drive up here to see me”, you haven’t put any of that to Ellysha; have you? ---No, not yet.
So, you don’t know what her reaction is going to be to that?---No.
All right.
MR KYRANIS: Do you think, if you’re released into the Australian community, that the current arrangement that you have, the every Wednesday afternoon phone call, that will continue for a fair bit of time whilst you go to Sydney, come back, find a place in Biloela or find a job; do you think that that Wednesday afternoon arrangement will continue for a fair bit of time until you and Ellysha can come to some kind of agreement for you to see your son?
---Yes.
Yes. You mentioned that your siblings are one of your closes ties to Australia, essentially, that they’re family members that you’re closest to?
---Yes.
Your two younger siblings?---Yes.
Your brother, his name is Jone; is it?---Jone.
Jone?---Yes.
What’s his date of birth?---8 October 2006.
And he is living with your dad in Biloela?---Not anymore.
Where does he live with now?---He’s living with a family friend.
Does his sister live with them as well?---Yes.
Who’s the family friend?---Joobs and Diane.
When you say family friends· are they relatives of yours?---No. They’re just friends of the family.
Very good friends it seems if they’re caring for your siblings?---Yes.
How long have they been living with Jules and Diane for?---I’m not too sure. Somewhere before 26 September.
So, it’s a recent thing; is it?---Yes, it’s a recent thing.
About in the past month they’ve gone to live with them?---Yes.
Your sister said in her statement to the department, in the G documents, that when you went to gaol you had just started to rebuilt your relationship with her after five years?---Yes.
So, is it the case that you didn’t see each other for five years?---Yes.
Why is that?---My mum moved with all my younger siblings down to Sydney. The only reason I couldn’t go was because my son was in Biloela.
When did your mum and your siblings move from Biloela to Sydney?---I’m not too sure. Around 2017 maybe.
And you didn’t see your younger brother or sister in that five years or speak to them it seems?---No, we spoke online and everything, over the phone.
But, you didnt see them for five yeais?---No.
Why did your siblings move back up to live with your father after moving down initially in about 2017 to live with their mother?---Because when the COVID kicked in they said they were going to be home schooled and my mum couldn't be home to home school them or supervise them. And Queensland had a different law with COVID so they could still go to school. That’s why they moved up.
Jules and Diane - - - ?---Joobs and Diane.
Joobs. Are they a couple?---Yes.
Do they have any kids of their own?---Yes.
How many kids do they have?---To themselves they’ve got one - together they have one but Diane has got three kids and Joobs has got, yes, another three kids but they all live different. Diane’s kids live with them.
Okay?---Which is why my younger siblings wanted to go there.
So, in Jules (sic) and Diane’s house there’s your two younger siblings?---
Yes.
Who else is there presently?---Lani, the daughter they had together, and another daughter that’s Kasa’s age, another son that’s Jone’s age and the eldest son. He’s a bit older I think he’s 18 now.
You said that your siblings wanted to move in with Joobs and Diane?---Joobs and Diane, yes.
So, I take it that they’re happy? Happier than what they were living with your father?---Yes.
They it seemed chose to move in with Joobs and Diane?---Yes.
Diane has a child that’s of similar age to your siblings; is that right?---Yes, two; one boy and one girl.
So, they have children their age group to associate with?---Yes.
If you’re released into the Australian community, you won’t be providing the day to day care and support of your siblings; will you?---If I find a job and find a house, yes.
But, will you really? It seems that you’ve got a lot on your plate. You’re still recovering from a drug and alcohol problem, you don’t have a place to live in Biloela, you need to find a job, you’ve got this ongoing issue with caring for your son with Ellysha; do you really think that you can take on and provide parental support to your teenage siblings?---Yes. Because, they listen to me. I try and avoid them from going down the same path I went down.
Does Joobs and Diane know that this is what your plan is?---No.
Have any of your two siblings discussed this with you?---Yes, they know.
They want to move in with you; do they?---Yes.
If and when you moved back to Biloela?---Yes. Because, they want to stay up in Central Queensland. Wherever their schooling is it’s better. But, if was up there they’d be with me.
[sic]
The Tribunal did not ignore Kasa and Jone in its reasons. They feature under the heading The Applicant’s Minor Siblings, at [130] to [132]:
130.I will, out of an abundance of caution, mention the Applicant’s two minor siblings who comprise a brother, currently aged 16 years and a sister currently aged 13 years. Both of these siblings are primarily parented by their father. There is little or nothing in the evidence to suggest their father has parented these children in a way that has been neglectful nor that the Applicant’s time in criminal custody and immigration detention has adversely affected them.
131.There is reference in the material to the Applicant visiting his father’s home for a meal and, on occasion, accompanying his two minor siblings to co-curricular activities. Even so, there is no contention made by the Applicant that he plays any type of parental role in their lives. There is little or nothing to cavil with the proposition (and finding) that either or both of these minor siblings will be able to establish non-personal contact with the Applicant in the form of telephonic and/or electronic means were he to be removed to Fiji.
132.In the circumstances, I will afford a moderate level of weight to the Applicant on the basis that it is in the best interests of these two minor siblings for his visa status to remain in Australia being resorted to him.
The Tribunal has, with respect, got the ages of the two children right but very little else concerning them as a matter of then contemporary fact. The Tribunal’s task was to conduct a hearing afresh by reference to the factual position as disclosed by the material before it, not the past.
The following errors of fact are evident from the evidence which Mr Waqa had given as well as affirmative statements made by him in his statement of facts, issues, and contentions, the accuracy of which was never contested as the time of the Tribunal’s hearing. Neither Kasa nor Jone was primarily parented by their father; they were living with friends. There was evidence to suggest that their father had parented them in a way that had been neglectful. They were living with friends because of his continuing difficulties with alcohol.
The applicant’s time in criminal custody and immigration detention had adversely affected them. They said as much in their letter of 29 October 2021. It had interrupted a resumed inter-sibling relationship with Mr Waqa as older brother having, as he had said, “Stepped up” to undertake not just an older brother but fatherly roles. The statement that, “There is no contention made by the applicant that he plays any type of parental role in their lives”, was just wrong; it was quite the reverse of the position that Mr Waqa had put.
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021), at [24] to [28]:
24Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
26Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
27None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
Decision-makers’ approach to non-refoulement
28Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
[footnote and citations references omitted]
It is singularly important having regard to what is stated in the joint judgment in Plaintiff M1/2021 that there be no reversion by this Court to a line of authorities expressly disapproved in that case. In particular, judicial review is not an occasion for judges, in the exercise of original jurisdiction, treating an application as if it were some kind of general warrant enabling the substitution for the authority to whom merits review is consigned of differing views held by the court. All that said, it is incumbent upon those to whom a merits review function is entrusted by Parliament to engage with the case as made by an applicant. Manifestly, the Tribunal has failed to do this in relation to Mr Waqa’s case concerning his siblings, Kasa and Jone. In so doing, the Tribunal has also failed to apply the terms of para 8.3 of the Minister’s direction.
It is, with respect, not hard to see how this might have occurred given the terrible pressures of time under which the Tribunal was obliged to make its review decision. It may be, as was put on Mr Waqa’s behalf by Ms Ryan of counsel, that the Tribunal under those pressures forgot the changed circumstances and looked only to the historic position as related in the Minister’s statement of facts issues and contentions.
However that may be, and notwithstanding an earnest endeavour on behalf of the Minister by Mr McGlade of counsel to persuade me that there had been an engagement, I am just not satisfied. Of course it is for Mr Waqa to discharge an onus of proof in relation to whether or not his representation for revocation and supporting evidence has been taken up. But, in this case, he has discharged that onus.
It is necessary also to remember that the Tribunal is not bound by the rules of evidence: see s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) and Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555. Mr Waqa’s statements of facts, issues and contentions was authored by him as applicant. It had probative as well as assertive quality for the purposes of administrative decision-making.
Were there any doubt about the statements which he made, that was removed by his oral evidence and the particular way in which the Minister chose to conduct his case before the Tribunal. As I have already observed, there was no challenge to statements which Mr Waqa made affirmatively concerning the then domestic living arrangements of his two younger siblings and the role which he had played and intended to play, parentally, in their lives.
Of course, error alone is not sufficient to make that error jurisdictional and it is for the applicant to show that the error is material such that it is jurisdictional. In that regard, recent authority namely, Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 (Nathanson), is instructive. Flowing from the joint judgment in Nathanson at [1], [2], [30], [32], and [33], the following propositions emerge. An applicant need only show a realistic possibility, but it is for the applicant to show that. Further, the standard of reasonable conjecture concerning that reasonable realistic possibility is, “undemanding”.
For all that, it was put on behalf of the Minister that having regard to the particular finding made by the Tribunal after a survey of Mr Waqa’s offending history, that there was no realistic possibility of any different outcome. The Tribunal cites Mr Waqa’s history of offending at [24] to [27]. The history starts on 24 June 2015 with an offence of common assault. It culminates with a series of convictions on 19 August 2021 in respect of assault occasioning bodily harm, unlawful use of motor vehicles, unlawful entry of a vehicle, or committing an indictable offence, dangerous operation of a vehicle when adversely affected by an intoxicating substance on two occasions, possession of utensils or pipes for use, and possession of dangerous drugs.
In-between those two dates of conviction, there are multiple offences in respect of assault, wilful damage, stealing, contravention of a domestic violence order, assault in the context of a domestic relationship. At [78], the Tribunal stated:
78.The third factor relates to the Applicant’s claim that familial responsibility in the form of his son and broader family will somehow act as bulwarks against his future recidivist risk. The fatal difficulty with such contention is that such claimed protective factors did feature in the Applicant’s past and did absolutely nothing to prevent him from very seriously offending. As will be demonstrated later in these Reasons, the state of the Applicant’s relationship with his minor son is not suggestive of a parent who has any great or significant interest in the welfare of that child. I am not convinced by this argument generally nor am I convinced that on any specific basis, the Applicant will return to the life of his minor son and play any kind of parental role that could not be accepted as a factor militating against his recidivist risk. The contention must be rejected in its entirety.
The difficulty with accepting the Minister’s submission is that the Tribunal ultimately engaged, as necessarily the Tribunal had to, in a balancing exercise of factors which told against revocation as well as factors which told in favour. The Tribunal was undoubtedly entitled to have singular reservations concerning Mr Waqa. But, in turn, Mr Waqa was entitled to have those reservations measured against a proper understanding of the interests of minor children. It is, as was put on his behalf, instructive to compare the detailed understanding which the Tribunal brought to bear in respect of Mr Waqa’s natural child with the abject, with respect, lack of understanding which the Tribunal brought to bear in respect of the minor siblings: Kasa and Jone.
This was always a case where Mr Waqa’s offending history would necessarily provoke on the part of any administrative decision-maker very particular concerns such that on a balancing exercise the interests of children might well make a difference. Mr Waqa is entitled to have that difference understood in that balancing exercise. This has not occurred to date.
I am satisfied that the errors in understanding Mr Waqa’s case for revocation as it stood at the time of the hearing as well as the related errors in understanding the requirements of the Minister’s direction are such that these errors are material.
For this reason alone, this is reason enough in itself to quash the Tribunal’s decision.
There were other grounds which were pressed on behalf of Mr Waqa. Given the conclusion reached in respect of the ground already covered, I propose to deal in a somewhat more cursory fashion with these other grounds.
It was alleged that the Tribunal had denied Mr Waqa procedural fairness in respect of the understanding of his rights on a review hearing. I rather suspect that this ground was not at the time of pleading informed by the transcript of the earlier interlocutory stage of the Tribunal’s proceeding. The affidavit of Ms Maker of the Minister’s solicitor puts that in evidence. It is apparent from this that the Tribunal, with respect, commendably, went to some length to explain the procedure and Mr Waqa’s right to introduce oral evidence. Further, as the Tribunal recites in its reasons, the Tribunal, notwithstanding the compressed timeframe, adjourned the hearing so as to ensure that Mr Waqa was not constrained by the terms of s 500(6L) of the Act.
There is a difference between an opportunity to be heard and availing oneself of that opportunity. This case may well highlight that difference. It is not hard to see how, if represented by the quality of representation that Mr Waqa enjoyed on the judicial review application, much official material including oral evidence might have been adduced. But there was no right for legal representation before the Tribunal either. Mr Waqa did as well as he could within the limits of his understanding and education. That was, for reasons I have already given, quite sufficient to expose why it was, as matters stood, he sought revocation.
But the Tribunal did, in my view, afford him procedural fairness in terms of offering an opportunity. The denial of procedural fairness which did occur was one which was of a like kind to that described in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, that is the Tribunal failed to understand the integers of Mr Waqa’s claim for revocation as they stood at the time of the Tribunal’s hearing and decision. That is another way of describing the jurisdictional error committed by the Tribunal.
It was also put that the Tribunal had misunderstood a statement in the Minister’s direction at para 8.1.1(1)(b) which provides:
8.1.1 The Nature and seriousness of the conduct
(1) …
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
The Tribunal stated, at [34], that Mr Waqa had at least two convictions for committing offences against Government representatives or officials in the performance of their duties. The Tribunal went on to describe three offences. On 15 November 2015, Mr Waqa failed to stop walking when told by police to stop and refused to state his full name an address when so directed by police. He was convicted of assaulting or obstructing a police officer and also of contravening a direction or requirement and fined $500 and $300 respectively. In 2020, he was convicted of contravening a direction or requirement after failing to report to a police station by an appointed time. For this, he was fined $150.
The Tribunal found, at [40], that it was, “Satisfied that the totality of the applicant’s conduct captured by this paragraph is militative of a finding that the totality of his conduct has been of a serious nature more likely very serious”. That statement though appears to have been made with reference to an overall assessment of offending conduct.
I was taken to a judgment of Kerr J, BDQ19 v Minister for Home Affairs [2019] FCA 1630 (BDQ19).
In BDQ19, Kerr J had occasion, at [134], and by way of what is strictly obiter to make these observations concerning an earlier version of a like specification of a consideration in a Ministerial Direction. His Honour stated:
134In the Court’s opinion, in that context, the offence of failing to comply with a request made by the police to supply personal details, per se, is not relevantly a “serious offence”. It is not, on its face, an offence committed against government representatives or officials due to the position they hold, or in the performance of their duties. The position is more doubtful with respect to the offence of resisting arrest. In the Court’s view, a conviction for resisting arrest might or might not fall within that language. The issue would seem to turn on the precise terms of the statute (in respect of which there was no information before the Tribunal) and the facts of any conduct constituting that offence. There may be circumstances in which a person will have committed such an offence “against” a public official in the performance of his or her duties.
[emphasis in original]
His Honour was obviously grappling with the import of the word “against” in that part of the Direction. One has to be a little careful in reading a Minister’s Direction as if it were authored by a Parliamentary draftsman and appearing in an Act of Parliament. A Direction is meant to give guidance. Much might depend on the level of abstraction against which one construes para 8.1.1(1)(b). With respect, the construction adopted by Kerr J is certainly open but it might just be that, if viewed at a slightly more general level of abstraction, what the Minister is endeavouring to describe are offences which entail defiance of or a failure to comply with aspects of public administration including law enforcement. So viewed, Mr Waqa’s offending conduct would fall within that description.
But, in any event, even taking into account what is stated in Nathanson concerning materiality, I am not, as I note was not Kerr J in BDQ19, persuaded, that, if it be an error on the part of the Tribunal in characterisation, that that error was in any way material. Particularly, that is so having regard to [78] of the Tribunal’s reasons already quoted. The Tribunal was, when all is said and done, looking at an overall picture presented by offending conduct and making a value judgment as to risk presented by that.
I do not see that any error of characterisation made any material difference to the Tribunal’s ultimate balancing exercise and resultant decision.
That then leaves for consideration an alleged lack of rationality and reasonableness in the conclusion that was reached by the Tribunal with respect to risk of reoffending. The Tribunal’s reasons, as I was reminded on behalf of the Minister must be read as a whole and without an eye for error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It is important singularly, that what was stated in that case translate into a principled restraint on the part of the judicial branch in discerning any jurisdictional error on the part of an administrative decision-maker. Mr Waqa presented material which disclosed that he had made particular endeavours to resist, while in detention, consumption of alcohol or drugs. There was nothing to suggest otherwise. But the Tribunal’s reasons reveal an overall assessment of a very unfortunate and lengthy association indeed, manifested on occasion in offending conduct, between Mr Waqa and alcohol and, on occasion, drugs. The Tribunal was entitled, in my view, rationally and reasonably, to express the conclusion which it did at [78]. I do not see any particular merit at all in this basis of challenge to the Tribunal’s decision.
What follows from the foregoing is that Mr Waqa has established jurisdictional error on the part of the Tribunal such that the Tribunal’s decision must be quashed. It bears repeating because I am so very conscious of the burden which the Tribunal had, flowing from the time constraint, that the error which I have discerned may well flow from the demands which that constraint placed on the Tribunal’s ability readily to assimilate the whole of the case as it had come to be made. However, judicial review is concerned with jurisdictional error, not with an explanation as to how that occurred.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 21 August 2023
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