Weight of expectations of AU community offset by children’s best interests?

Federal Court. Can it be said in light of FYBR that "decision-makers are required to have due regard to the government’s views as to the expectations of the Australian community, but that the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter for the Tribunal’s discretion"? If the Tribunal refers in its decision to the submissions made by an applicant, does it necessarily mean that it considered those submissions?

In describing the Tribunal's assessment under s 501(1) of the Migration Act 1958 (Cth), the Federal Court (FCA) summarised the relevant facts as follows:

20    The Tribunal noted that it was bound by s 499(2A) of the Act to comply with Direction 79. The Tribunal summarised the principles set out in paragraph 6.3 and noted the primary considerations required to be taken into account under paragraph 11.

21    The Tribunal then proceeded to consider each of the primary considerations. In respect of protection of the Australian community, the Tribunal found that the risk of the applicant reoffending was very serious and that the risk of harm was so serious as to be unacceptable. The Tribunal concluded that protection of the Australian community weighed very heavily in favour of refusal of the visa.

22    The Tribunal found that refusal of the visa would likely have an adverse effect on the two minor children of his partner from a previous relationship and his own two children. The Tribunal found that the best interests of the children weighed heavily in favour of setting aside the decision to refuse the visa.

23    The Tribunal then turned to the expectations of the Australian community. The Tribunal noted that decision-makers are required to have due regard to the government’s views as to the expectations of the Australian community, but that the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter for the Tribunal’s discretion, citing FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [76] and [97]. The Tribunal then referred to paragraph 6.3 of Direction 79, which sets out principles that must be taken into account in understanding the primary considerations. One of those principles, under paragraph 6.3(7), states that a matter for consideration is the consequences of a visa refusal for minor children and other immediate family members in Australia.

24    Significantly for this application, the Tribunal then assessed the expectations of the Australian community as follows:

111.    The Applicant submits that the expectations of the Australian community ‘generally weigh against’ the Applicant, yet contends that, where the non-citizen’s conduct is not “very serious”, the risk of reoffending is not high and where there is an Australian citizen partner and dependent [minor] children who will be deprived of his presence in the event of removal, this factor should not weight heavily against the applicant.

112.     The Tribunal has assessed the Applicant’s conduct as ‘very serious’, and also assesses the risk of re-offending to be higher than as now submitted by the Applicant. Further, in light of paragraph 6.3(5) of the Ministerial Direction, it is to be observed that the Applicant has only been participating in and contributing towards the Australian community for only a short period of time (having arrived in 2012). In these circumstances - and in particular light of paragraphs 6.3(2) and 6.3(3) in the Ministerial Direction - the expectations of the Australian Community must be assessed as weighing very heavily in favour of visa refusal.

(Citation omitted, emphasis in original.)

25    The Tribunal then went on to deal with “other considerations”, described as the impact of visa refusal on family members and the impact on victims. The Tribunal noted that the applicant’s partner was the primary victim of his offending. It accepted that refusal of the visa would have an adverse impact on the applicant’s partner and other immediate family in Australia, but found that this was outweighed by the primary considerations of protection of the Australian community and expectations of the Australian community.

26    The Tribunal then went on to conclude:

118.     In reaching this conclusion to exercise the power, I have had regard to the considerations referred to in the Direction. With regard to the weight allocatable (sic) to each of these Primary and Other Considerations, I find as follows:

•    [Protection of the Australian community from criminal or other serious conduct] weighs very heavily in favour of exercising the discretion to refuse to (sic) the subject visa;

•    [The best interests of minor children in Australia] weighs very heavily in favour of not exercising the discretion to refuse to grant the subject visa;

•   [Expectations of the Australian Community] weighs very heavily in favour of exercising the discretion to refuse to (sic) the subject visa;

•    Other Considerations (a), (c) and (d) are of either neutral weight or not relevant to this consideration;

•    Other Consideration (b) weighs heavily in favour of not exercising the discretion to refuse to grant the subject visa;

•    The combined weight of [Protection of the Australian community from criminal or other serious conduct] and [Expectations of the Australian Community] B (sic) determinatively weighs in favour of exercising the discretion to refuse to grant the subject visa; and

•    A holistic application of the considerations in the Direction to the evidence therefore militates in favour of this Tribunal exercising the discretion to refuse to grant the subject visa to the Applicant.

119.    In these circumstances those considerations in support of upholding the visa refusal outweigh the considerations in support of revocation of the visa refusal decision, such that the Tribunal determines that the decision of the delegate to refuse the visa is now affirmed.

36    The totality of the Tribunal’s reasoning for its finding that the expectations of the Australian community weighed very heavily in favour of refusal of the visa is found at [112]. The Tribunal referred to the following five matters in making its finding:

      • the applicant’s conduct was very serious;
      • the risk of the applicant reoffending was higher than had been submitted by the applicant;
      • in respect of paragraph 6.3(5), the applicant had only been participating in and contributing to the Australian community for a short period of time;
      • paragraph 6.3(2) (which states that the Australian community expects that the Australian Government can and should refuse entry to non-citizens if they commit serious crimes in Australia or elsewhere);
      • paragraph 6.3(3) (which states that a non-citizen who has committed a serious crime, including against women, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia).

Some of the questions to the FCA were as follows:

Question 1: Can it be said in light of FYBR that "decision-makers are required to have due regard to the government’s views as to the expectations of the Australian community, but that the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter for the Tribunal’s discretion"?

Question 2: If the Tribunal refers in its decision to the submissions made by an applicant, does it necessarily mean that it considered those submissions?

Question 3: Is the inference that the Tribunal overlooked the Applicant's submissions described at [111] of the Tribunal's reasons supported by the fact that, at [112], the Tribunal expressly referred to five factors which included cll 6.3(2), 6.3(3) and 6.3(5), but omitted any reference to the relevant submission, which in turn referred to cl 6.3(7)?

Question 4: The Minister submitted to the FCA that, in the passage at [118] of the Tribunal's reasons where it referred to the "holistic application of the considerations in the Direction", the Tribunal "indicated that it had conducted a final, overall consideration of all the relevant factors, including the relevant submission" concerning cl 6.3(7). Can it be said that "the word “therefore” indicates that the Tribunal was reaching its conclusion on the basis of the matters that it had already discussed in [118]" and that therefore "it did not conduct some free-standing further review of all the relevant factors"?

Question 5: If the answer to Question 4 is "yes", could that answer be seen as implying that the Tribunal could choose between carrying an overall consideration of all the relevant factors at once or offsetting the weight of an individual factor (i.e. impact on minor children) against the weight of another individual factor (i.e. the expectations of the Australian community)?

Question 6: Can it be said that, "as the impact of the decision upon the applicant’s partner and children had already been considered earlier in the reasons, it was unnecessary to consider that issue again at [112]"?

The FCA answered those questions as follows:

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