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Did lack of reference to expert information in Minister's reasons on harm of long term separation amount to failure to form statutorily required state of satisfaction pursuant to Section 501CA (4) of the Migration Act, 1958 (Cth)?

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 (23 September 2021)

Intro:

This is an appeal from decision of primary judge dismissing application for judicial review of Minister who decided not to revoke mandatory cancellation of appellant's visa pursuant to Section 501CA (4) of the Migration Act, 1958 (Cth).

Facts:-

Mr Bettencourt came to Australia from Portugal as an 8‑year old. He has lived here ever since. He is one of 10 siblings and has an extended family in Australia. He is now 41 years of age. He has two young children of his own. They are of primary school age.

Despite living only in Australia since he was a child, Mr Bettencourt has remained a citizen of Portugal. He has resided in this country as the holder of a permanent visa.

In 2019, Mr Bettencourt was convicted of possessing child exploitation material and sentenced to 14 months imprisonment. By reason of the term of his sentence being more than 12 months he failed the character test for the purposes of s 501 of the Migration Act 1958 (Cth). As required by s 501(3A) of the Act, the Minister cancelled his visa. The Minister then invited Mr Bettencourt to make representations about revocation of the original decision. Section 501CA(4) of the Act provides that the Minister may revoke the original decision to cancel a visa under s 501(3A) if representations are made in accordance with such an invitation and the Minister is satisfied that the person passes the character test or is satisfied that 'there is another reason why the original decision should be revoked'.

Lawyers acting on behalf of Mr Bettencourt made detailed representations to the Minister setting out a number of reasons why the original decision should be revoked. The representations took the form of submissions by way of letter (Submissions) and many attachments, including statements of support from a number of family members.

The Submissions were arranged by reference to the terms of Direction No 79 (Direction), being the terms of a direction made by the Minister pursuant to s 499 of the Act. Within the preamble to the Direction, its purpose is described as being to guide decision-makers in performing functions or exercising powers under certain related provisions of the Act. They include s 501CA. The Direction does not bind the Minister in the personal performance of the statutory obligation to form the state of satisfaction required by s 501CA(4) when a person makes representations in accordance with an invitation. However, it is an instrument of policy that is known to be used in such cases and indeed its structure was followed by the Minister in the reasons that he provided in Mr Bettencourt's case.

One of the primary considerations specified in the Direction is the best interests of minor children in Australia. The Direction says that decision-makers must take into account the primary and other relevant considerations relevant to the individual case. It also says that in applying the considerations 'information and evidence from independent and authoritative sources should be given appropriate weight' and that primary considerations 'should generally be given greater weight than the other considerations'.

Under the heading 'Primary Consideration: Best Interests of Minor Children in Australia Affected by the Decision', the Submissions described the circumstances of Mr Bettencourt's two children, including that they share an extremely close relationship with their father. It then set out a number of quotations from the statements of support and from a statement provided by Mr Bettencourt concerning the relationship and the effect of separation that would be the necessary consequence if the visa cancellation was not revoked and Mr Bettencourt was removed from Australia.

The Submissions then said: 'There is a plethora of research that demonstrates the detrimental physical, emotional and psychological impact that ongoing separation from one or both parents has on a young child'. Quotations were provided from three public sources of expert information. They included:

"With prolonged parental absence, children may become passively compliant with care staff, giving the appearance of having 'settled in' to their new environment. Disturbingly, this can signify that the child has detached from the parents and is now living in a perceived state of 'fear without resolution'. Children reunited while they are in the early separation protest phase usually fare well. Children in despair may respond to the reappearance of their parent with hostility or ambivalence, taking many weeks to rebuild their bond. Children who have detached from their parents may reject their approaches or treat them as strangers. Additionally, when children interpret themselves as 'abandoned' by parents, they may develop a profound sense that they have done something wrong to cause their caregiver to leave, igniting shame and complex emotions that can damage the lifelong relationships with themselves and others.

...

Studies have shown that if a child suddenly loses a parent, either through death, abandonment, or a prolonged separation, the child experiences intense fear, panic, grief (a combination of sadness and loss), depression, helplessness and hopelessness. The child has lost his lifeline, and often his sense of self. The world, and life, become disorganized and terrifying ... Children actually blame themselves for a parent's disappearance. The child naturally concludes: 'I must have done something wrong, otherwise my parent wouldn't have left. I must be bad.' The child feels tremendous rage at the parent for leaving, but since it cannot be expressed to the parent, it becomes a constant ache inside or depression (anger turned against the self) or the child will act out aggressively. A child who suddenly loses a parent finds it hard to trust others in relationships; finds love dangerous; (the person could leave), and feels constant longing for the parent."

Manifestly, the Submissions advanced the expert materials to support the claim that prolonged and long term harm to the two children would result from their permanent separation from their father and that was 'another reason' why the cancellation of Mr Bettencourt's visa should be revoked. Based on that (and other) claims it was submitted that the best interests of the children 'weigh heavily' in favour of revocation.

The decision by the Minister

The Minister was not satisfied that there was another reason why the cancellation of Mr Bettencourt's visa should be revoked. The Minister concluded that as he was not so satisfied, the statutory power to revoke the visa cancellation was not enlivened. Reasons were provided by the Minister (there being a statutory requirement to provide reasons for a decision to not revoke a decision to cancel a visa: see s 501G of the Act).

Issue:-

a) Did the primary judge err in finding that the Minister had considered in a proper, genuine and realistic manner, the adverse impact of long term separation of a child from a parent despite lack of reference to expert information in Minister's reasons?

Analysis:-

As the decision was made by the Minister personally, the statutory administrative review on the merits that would have been available if the decision was made by a delegate of the Minister did not apply. Mr Bettencourt sought review of the Minister's decision in this Court on the basis of alleged jurisdictional error. The jurisdiction to be exercised was that circumscribed by s 476A of the Migration Act and therefore, relevantly for present purposes, was confined to review for jurisdictional error. Mr Bettencourt's application alleged two errors, one of which was to the effect that the Minister failed to exercise his statutory jurisdiction by failing to give proper, genuine and realistic consideration to the representations made as to the likelihood of the children suffering long term harm due to a lack of a meaningful relationship with their father if he were removed from Australia.

It is important to note that the appeal concerned the quality and character of the consideration given by the Minister to that 'other reason' advanced. It was not claimed that there had been no consideration given to the reason at all or that it had been completely ignored or overlooked by the Minister. Rather, it was submitted that the material relied upon demonstrated long term consequences of such magnitude that a failure to refer to those consequences in any meaningful way in the reasons supported the finding that the seriousness of the harm to the children had not been considered in the way that was needed in order for the Minister's state of satisfaction to be formed by undertaking a meaningful engagement with the reason advanced. In effect, the state of satisfaction was disconnected from consideration of the true content of the reason advanced as to why the visa cancellation should be revoked, namely the serious, long term, lifetime of harm to the children that would result.

Considered within the statutory context, the Minister's statutory power conferred by s 501CA(4) has been determined to have the following characteristics:

(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.

(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.

(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.

(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.

(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.

(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.

The Court will recognise that there is no obligation upon the Minister to refer to every piece of evidence or every contention: ETA067 v The Republic of Nauru [2018] HCA 46 at [13].

In addition to the above matters, an understanding of what is required by s 501CA as to the nature and quality of consideration to be undertaken by the Minister in any particular case is informed by the subject matter of the power and takes its form and shape from the terms, scope and policy of the statute. The principle of legality also means that its nature and extent are not taken to interfere with fundamental values anchored in the common law unless the statute does so explicitly. Therefore, as stated by the Chief Justice (Markovic and Steward JJ agreeing) in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3], the following general description pertains to the character and quality of consideration that must be undertaken by the Minister in forming the required state of satisfaction for the purposes of s 501CA(4):

"The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament."

The Court is also conscious in cases like the present that the repository of the power is the Minister and it is the Minister's state of satisfaction that determines whether there is power to revoke the visa cancellation. It is not for the Court to usurp that authority entrusted by Parliament in the Minister and clothe a view as to the merits of the reasons advanced by way of representation to the Minister with language said to manifest jurisdictional error. In order for there to be jurisdictional error of the kind alleged in the present case there must be a finding that the duty to perform the statutory task was not carried out, not that there is disagreement, even strong disagreement with the reasoning and conclusion reached. Put shortly, the Court must not do anything that would substitute its state of satisfaction for the Minister's state of satisfaction in the present case.

Reasons for allowing the appeal

It may be noted that the relevant academic material referred to in the Submissions relied on by Mr Bettencourt to support the reason for revocation is not referred to and is therefore not questioned or doubted in the Minister's reasons.

The primary judge reasoned that the Minister's failure to refer to this material indicated implicit acceptance that long term separation was likely to be harmful and 'strongly favoured revoking the visa cancellation': at [29]. We are respectfully unable to agree with those findings by the primary judge. The following aspects of the Minister's reasons lead us to conclude that whilst the Minister recognised that there would be harm to the children and that, as a result, cancellation of the visa was in the best interests of the children, it is not possible to take the further step of concluding that the Minister implicitly accepted that long term separation was likely to be harmful and formed the view that the reason strongly favoured revocation. Rather, the conclusion to be reached from a consideration of the reasons is that the Minister failed to form the required state of satisfaction by reference to the information before him as to the seriousness of the harm to the children that was likely if the visa cancellation was not revoked, information which, as we have said, in this appeal the Minister accepted was compelling. The Minister thereby failed to form the required state of satisfaction.

First, there is no reference to the terminology used in the material in the Submissions which described the seriousness of the harm to the children that was likely in the long term.

Secondly, there is no finding by the Minister in the reasons concerning the quality or character of likely harm to the children. Rather, the only reference is to taking account of a submission by the maternal grandmother of the children that they will be 'mentally and physically affected should their father be removed from Australia'. Significantly absent is any description of the nature, extent or duration of such effect. Also absent is any conclusion as to the nature and extent of harm. The reason advanced in the Submissions was not simply that there would be a mental and physical effect. The reason was that the magnitude of the harm to the children would be substantial and ongoing. Further, and importantly, it was founded not on the views of a family member (which the form of reasons would suggest) but on expert views not adverted to in the reasons.

Thirdly, the language used in the reasons focusses upon distress and upset to the children at the time of separation rather than ongoing harm.

Fourthly, the key conclusion by the Minister that the best interests of the children would be served by the revocation of the original decision is expressed blandly without any qualitative evaluation of a kind that would indicate that the Minister accepted that there would be serious harm to the children if the decision was not revoked. In particular, there is no language in the conclusion (or elsewhere in the reasons) to support the finding by the primary judge that the Minister concluded that the interests of the children 'strongly favoured revoking the visa cancellation decision'.

Fifthly, in order for the Minister to form the required state of satisfaction it was necessary for the Minister not only to form a view as to whether the matters raised meant that the best interests of the children would be served by the revocation of the cancellation decision but to evaluate the significance of those matters. Only then would the representations as to the seriousness of the matters relied upon be considered in forming the required state of satisfaction. There is no indication in the language of the reasons that such an evaluation was undertaken by the Minister.

Sixthly, if executive power is to be exercised with a conscious understanding that it will result in the long term separation of a child from a loving and supporting parent with likely long term harm to the children then, given the nature of the obligation to give reasons in the present case, it is to be expected that the seriousness of that consequence and its consideration would both be manifested expressly in the reasons of the Minister.

For completeness we note that the Minister did not gainsay the proposition that if error of the type contended for by Mr Bettencourt is established, then such error was sufficiently material to warrant a conclusion of jurisdictional error.

Conclusion

For the reasons we have given, the appeal should be allowed with costs. There should also be an order in favour of the appellant in respect of the costs of the proceedings before the primary judge. It is appropriate in the interests of efficiency for provision to be made for lump sum assessment of costs by a registrar if the quantum of costs is not agreed.

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