Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 23 September 2021
• Neutral Citation: [2021] FCAFC 172
• Date: 23 September 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

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

Appeal from:	Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162
File number:	WAD 70 of 2021
Judgment of:	BURLEY, COLVIN AND JACKSON JJ
Date of judgment:	23 September 2021
Catchwords:	MIGRATION - appeal from decision of primary judge dismissing application for judicial review of Minister - where Minister decided not to revoke mandatory cancellation of appellant's visa - where terms of direction require information from authoritative sources to be given appropriate weight in applying relevant considerations - where appellant made representations providing expert information of impact on children of long term separation from parent - whether Minister failed to form statutorily required state of satisfaction concerning whether another reason why original decision should be revoked - whether Minister failed to give proper, genuine and realistic consideration to representations concerning best interests of children - whether lack of reference to expert information in Minister's reasons indicated implicit acceptance of harm of long term separation - appeal allowed
Legislation:	Migration Act 1958 (Cth) ss 476A, 499, 501, 501CA, 501G
Cases cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 ETA067 v The Republic of Nauru [2018] HCA 46 GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 Navoto v Minister for Home Affairs [2019] FCAFC 135 Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	50
Date of hearing:	12 August 2021
Counsel for the Appellant:	Mr G Barns SC
Solicitor for the Appellant:	Estrin Saul Lawyers
Counsel for the Respondent:	Mr G Johnson with Mr D Helvadjian
Solicitor for the Respondent:	MinterEllison Lawyers

ORDERS

		WAD 70 of 2021
BETWEEN:	JOSE ROBERTO BETTENCOURT Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	BURLEY, COLVIN AND JACKSON JJ
DATE OF ORDER:	23 september 2021

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the primary judge on 2 March 2021 in WAD 258 of 2020 be set aside and in lieu thereof it be ordered that the decision of the respondent dated 13 October 2020 be set aside and the matter be remitted to the respondent for determination according to law.

3. The respondent do pay the costs of the appeal and of the proceedings before the primary judge such costs to be assessed by a registrar on a lump sum basis in accordance with the Court's Costs Practice Note (GPN-COSTS) if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. 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.

2. 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.

3. 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'.

4. 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.

5. 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.

6. 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'.

7. 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.

8. 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...