FEDERAL COURT OF AUSTRALIA Umi v Minister for Home Affairs [2020] FCAFC 101 Appeal from: Umi v Minister for Home Affairs [2019] FCA 2148 File number: VID 42 of 2020 Judges: MIDDLETON, WHITE AND BURLEY JJ Date of judgment: 5 June 2020 Catchwords: MIGRATION – appeal from decision of Federal Court of Australia dismissing application for review of decision of Administrative Appeals Tribunal not to revoke cancellation of applicant's visa – material submitted by partner of applicant outside time period prescribed by s 500(6J) of Migration Act 1958 (Cth) – whether decision of Tribunal not to adjourn review hearing denied applicant procedural fairness or was legally unreasonable – whether Tribunal misunderstood its task by failing to correctly construe procedural fairness provisions in Administrative Appeals Tribunal Act 1975 (Cth) – consideration of whether alleged errors material to outcome of Tribunal's review – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 499(1), 499(2A), 500(1)(ba), 500(6H), 500(6J), 500(6L), 501(3A), 501(6), 501(7), 501CA(4), Cases cited: Director of Public Prosecutions v Jody Lee Downe and Saoloapu Umi [2013] VCC 734 DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 Saoloapu Umi v The Queen [2013] VSCA 211 Umi v Minister for Home Affairs [2019] FCA 2148 Date of hearing: 6 May 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 49 Counsel for the Appellant: Ms G Costello SC with Mr A Aleksov Solicitor for the Appellant: Mr Lawson Bayly Counsel for the First Respondent: Ms C Symons Solicitor for the First Respondent: Australian Government Solicitor ORDERS VID 42 of 2020 BETWEEN: SAOLOAPU UMI Appellant AND: MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGES: MIDDLETON, WHITE AND BURLEY JJ DATE OF ORDER: 5 June 2020 THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: INTRODUCTION 1 The appellant is a 44 year old national of Samoa who has lived in Australia since 1995. 2 On 2 February 2017, a delegate of the Minister for Home Affairs (the 'Minister'), acting pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the 'Act'), cancelled the appellant's Spouse Visa. The delegate considered that the appellant did not satisfy the character test set out in sub-ss 501(6) and (7). 3 On 10 May 2019, another delegate made a decision, pursuant to sub-s 501CA(4) of the Act, not to revoke the cancellation. 4 The appellant then applied to the Administrative Appeals Tribunal (the 'Tribunal') for review. His application was unsuccessful. So also was the appellant's application for judicial review of the Tribunal's decision: Umi v Minister for Home Affairs [2019] FCA 2148. Statutory setting 5 The statutory setting pertinent to the appeal can be summarised briefly. 6 By sub-s 501(3A) of the Act, the Minister is obliged to cancel a person's visa if satisfied that the person does not pass the character test by reason of having a substantial criminal record and the person is serving a sentence of imprisonment. At the time of the delegate's cancellation of the appellant's Spouse Visa on 2 February 2017, he was a person to whom sub-s 501(3A) applied. 7 By sub-s 501CA(4), the Minister may revoke a cancellation decision if satisfied that the person does pass the character test or that "there is another reason why the original decision should be revoked". On 10 May 2019, a delegate of the Minister (the 'Delegate') refused to revoke the cancellation decision. 8 By sub-s 500(1)(ba) of the Act, an application may be made to the Tribunal for review of a decision of the delegate under sub-s 501CA(4) not to revoke a decision to cancel. The appellant lodged his application for review with the Tribunal on 21 May 2019. 9 The manner in which the Tribunal was to undertake the review of the delegate's sub-s 501CA(4) decision was circumscribed by a number of provisions in the Act. These included: (1) by reason of sub-s 499(2A), it had to comply with Direction 79 issued by the Minister under sub-s 499(1); (2) it had to make its decision within 84 days of the day on which the appellant was notified of the Delegate's decision not to revoke the cancellation decision (sub-s 500(6L)). If the Tribunal did not make the decision within that time, it would be taken to have affirmed the delegate's decision (sub-s 500(6L)). In this case, the 84-day period expired on 6 August 2019, 15 days after the commencement of the hearing in the Tribunal on 22 July 2019; (3) it could not have regard to any information presented orally in support of the applicant's case unless the information had been set out in a written statement given to the Minister at least two business days before the Tribunal hearing in relation to the decision under review (sub-s 500(6H)); and (4) it could not have regard to any document submitted in support of the applicant's case unless a copy of the document had been given to the Minister at least two business days before the Tribunal hearing (sub-s 500(6J)). Appeal before the Full Court 10 The appellant in the Amended Notice of Appeal relies upon one ground: The Court below erred by finding that: (1) the [Tribunal's] decision not to adjourn the hearing in order to allow [Partner B Material] to be adduced was [not] affected by legal error in that the [Tribunal] failed to act on a correct understanding of the law, or misunderstood its power or failed to accord procedural fairness or its decision was affected by legal unreasonableness; and (2) that none of those errors were material. 11 Whilst the ambit of the appeal is relatively confined, it will be necessary to rehearse the Tribunal's reasons and the primary judge's reasons in a little detail to explain our final conclusion. RELEVANT FACTS 12 Shortly after arriving in Australia, the appellant commenced a relationship with an indigenous woman described in the Tribunal and by the primary judge as "Partner A". He married her in 2007 and remains married to her. He has had four children with Partner A who, at the time of the Tribunal decision, were aged 9, 11, 19 and 21. 13 In 2000, the appellant commenced a relationship with another woman, referred to in the Tribunal and by the primary Judge as "Partner B". He fathered a child with Partner B, who was born in 2002. 14 The appellant has a formidable criminal record. Of present relevance, the appellant was sentenced in the County Court in Victoria on 29 May 2013 in respect of a number of offences including armed robbery, making a threat to kill, possessing a firearm while a prohibited person, assault and using a drug of dependence. He was sentenced to imprisonment for a total term of eight years with a non-parole period of five years: Director of Public Prosecutions v Jody Lee Downe and Saoloapu Umi [2013] VCC 734. On appeal, the total effective sentence was reduced to a head sentence of seven years and six months imprisonment with a non-parole period of four years and six months: Saoloapu Umi v The Queen [2013] VSCA 211. The appellant was still in prison at the time of the Tribunal hearing in July 2019. 15 As indicated above, the Tribunal's review was subject to the "84-day rule" under sub-s 500(6L) of the Migration Act 1958 (Cth), which deemed the primary decision (adverse to the appellant) to be affirmed if the Tribunal did not decide the review within 84 days of notification of the primary decision. The review was also subject to the "two-day rule" under sub-ss 500(6H) and 500(6J), which required that any evidence or document to be relied upon by an applicant be set out in writing and given to the Minister with two business days' notice prior to a hearing. 16 As alluded to already, the final hearing of the matter was listed with two weeks left before the 84th day. 17 On the morning of the hearing, the Tribunal received documents from Partner B (the 'Partner B Material') 18 The email which had attached the Partner B Material stated: From: [Partner B] Sent: Monday, 22 July 2019 8:57:07 AM To:Melbourne.Registry@aat.gov.au <Melbourne.Registry@aat.gov.au> Subject: 2019/2807 Dear Andrew Nikolic, Please find attached my support letter and supporting documents for Saoloapu Umi. I only found out yesterday that the hearing is today, as Saoloapu has very limited understanding of the whole legal process. Please, please consider my evidence 🙏 Kindest regards, [Partner B] 19 The Tribunal refused to consider the Partner B Material and did not look at its content even on a preliminary basis. 20 The email and Partner B Material provided to the Tribunal from Partner B was adduced into evidence by the appellant before the primary judge. 21 The Partner B Material sent by Partner B comprised: (1) a three page letter which was mostly a submission that the appellant should be permitted to remain in Australia after his discharge from prison, but did contain some matters of evidence; (2) copies of eight letters or Christmas cards sent by the appellant from prison to his 17 year old daughter and to Partner B; and (3) a copy of the 17 year old daughter's birth certificate, which confirmed that the appellant was her father, and Partner B, her mother. 22 One particular matter addressed in Partner B's letter should be separately mentioned. It is the following passage which speaks to Partner B's aspirations as to the future: Sar has good work prospects as he has a lot of experience in warehouse operations and looks to work straight away to help support his family. He needs to stay in Australia so that he can work to pay child support for his children as Australia does not have a reciprocal child support agreement with Samoa. Removing his VISA further punishes myself and the other mother of his kids as we have already had full financial responsibility of his children and would have to continue with this financial burden. I believe it is Sar's children's choice on whether they involve him in their lives and that right should not be taken away from them. He has served his time for his crimes, to deport him would be a life sentence because Sar would lose any hope at being able to rebuild a strong relationship with his children and lose any hope at seeing his grandchildren grow up. Our daughter, [redacted] has hopes in attending the University of Melbourne next year and will be staying at home as she will need extra support with paying for her studies, first car, and other purchases as she becomes a young adult. There is no doubt that Sar's other children will need further financial support in the years to come as they grow up. 23 To understand the context in which the Tribunal dealt with the Partner B Material, it is necessary to set out in full the description of the circumstances set out in the Tribunal's reasons at [76]-[80]. 76. Approximately an hour before the hearing commenced, the Tribunal's Registry received an email from Partner B. The email was sent at 08:57am and stated: 'I only found out yesterday that the hearing is today…Please consider my evidence.' An unsigned letter was attached to the email, which the Tribunal did not read. At the commencement of the hearing Mr Brown objected to the letter being taken into evidence given the requirement of s 500(6H) of the Act. The Tribunal's Registry staff subsequently advised that Partner B had sent a further email at 09:09am on the morning of the hearing attaching further documents, which the Tribunal did not read. 77. The Tribunal notes by way of background that following a Telephone Directions Hearing ("TDH") on the morning of 29 May 2019, which was approximately eight weeks prior to the commencement of the hearing, Mr Umi was invited to give to the Tribunal and the respondent by 4:00pm on 26 June 2019: (a) a witness statement from any witnesses proposed to be called at the hearing; (b) all reports, records and any other documents on which the Applicant intends to rely at the hearing; and (c) a Statement of Facts, Issues and Contentions. 78. Mr Umi was also informed both verbally during the TDH, and in subsequent written directions, that under the two-day rule contained in sections 500(6H) and 500(6J) of the Act, the Tribunal could only have regard to information presented orally at the hearing, if that information was set out in a written document given to the Tribunal and to the respondent by no later than two full business days before the hearing commenced. 79. After it was noted no materials were lodged by Mr Umi prior to 26 June 2019, the Tribunal sent him an email reminder on 28 June 2019. Mr Umi did not lodge any further materials in support of his application prior to the hearing. 80. The Tribunal declines to consider the correspondence from Partner B lodged on the morning of the hearing because: (a) It is precluded by s 500(6H) of the Act; (b) It is procedurally unfair to the respondent that the Tribunal accepts a witness statement and other documents on the morning of a hearing, given that the respondent's case preparations were concluded in the absence of such materials; (c) Mr Umi has been on notice since 29 May 2019 about the hearing dates and due dates for submitting material he intended to rely upon. Mr Umi has not requested more time at any stage or the pre-hearing process to lodge further materials; (d) Mr Umi's application is an expedited matter in which a decision must be made by 6 August 2019. There was insufficient time to adjourn the hearing by two days to enable the Respondent to consider the new material, and to comply with the requirements of s 500(6H). Moreover, an adjournment on this basis may be seen as an attempt to circumvent a statutory provision of the Act; and (e) Mr Umi remains imprisoned and it is important that the outcome of his application be determined as soon as possible, while ensuring procedural fairness to both parties. 24 It is to be noted that the Tribunal member's reference to sub-s 500(6H) in [80(a)] was mistaken, and should have been a reference to sub-s 500(6J). It was not suggested that this was an error of any consequence. 25 It is apparent from the above reasons of the Tribunal that the appellant had been on notice since 29 May 2019 about the timelines with which any further material was to be provided. 26 In addition, the Tribunal noted that, following a telephone directions hearing on the morning of 29 May 2019, the appellant had been invited to give to the Tribunal and to the Minister by 4 pm on 26 June 2019 various relevant documentation. 27 Then, the Tribunal member noted that the appellant had been informed during the telephone directions hearing and in subsequent written directions about the "two-day rule" contained in sub-ss 500(6H) and 500(6J) of the Act, and noted that, as the appellant had not lodged any materials prior to 26 June 2019, the Tribunal had sent him an email reminder on 28 June 2019. 28 In addition to these sources of information, the document accompanying the Delegate's letter of 14 May 2019 (by which the appellant was informed of the decision not to revoke the cancellation decision and to his rights to apply to the Tribunal for review), had informed the appellant of the effect of sub-ss 500(6H) and (6J) as well as of the 84-day rule. 29 There was no dispute before the primary judge or on the appeal to this Court about the accuracy of the above matters noted by the Tribunal. CONSIDERATION 30 The underlying submission of Counsel for the appellant was that the Tribunal should have adjourned the hearing on 22 July 2019 so as to allow for compliance with the two-day rule. The premise on which the sole ground of appeal was based was that, although the Tribunal member had said that the five matters listed in [80] set out above were reasons for declining to consider the Partner B Material, they were in truth reasons for the Tribunal member refusing an adjournment so as to allow for compliance with the two-day rule. Based on that premise, the appellant's Counsel then submitted that the five matters indicated an incorrect understanding of the law affecting the procedure on the review. 31 However, in our view, the premise for the appellant's argument is not sound. The matters listed by the Tribunal in [80] were, as the chapeau in the paragraph indicates, the reasons for the Tribunal member declining to consider the Partner B Material. As part of those reasons, the Tribunal member referred to the possibility of adjournment of the hearing and gave two reasons why he considered that was inappropriate in [80(d)]. 32 The primary judge focussed in this context on the adjournment and concluded, when similar arguments as put in this appeal were put to her, as follows: [53] … The real issue, as all counsel accepted in the way they approached the argument, is whether the Tribunal's own failure to adjourn the hearing occurred because of a misunderstanding of its powers, or constituted a denial of procedural fairness, or was legally unreasonable. [54] It is true that aspects of the Tribunal's explanation for not adjourning the review can be criticised. It misstated the applicable section of the Migration Act. The applicant's counsel in this proceeding properly accepted nothing of substance turns on this, especially given the preclusory effect is the same. The Tribunal made something of the procedural unfairness to the Minister if the Tribunal had regard to the late submitted information, when it is apparent that, first, the Minister's legal representative had in fact seen the material the day before, and second, he told the Tribunal he intended to cross-examine the applicant on matters which were in substance the same as the information contained in what Partner B had said: see the extract at [26(b)] above. Finally, it might be difficult to see how the fact that the applicant was imprisoned (see (e) in the extract at [18] above) counted one way or the other in circumstances where what was at stake before the Tribunal was whether he would be able to remain in Australia when he was released. If these had been the only three justifications for the refusal of an adjournment, then (and without speculating about what the ground might have been) it might have been arguable that the Tribunal's exercise of power had miscarried in a way which affected its jurisdiction to decide the review. [55] However, two of the explanations given by the Tribunal were substantive, intelligible and reasonable, and are sufficient to provide a lawful foundation for the Tribunal's refusal to adjourn the review, and to proceed to determine whether the cancellation decision should have been revoked. [56] The first of those was the Tribunal's reference to the procedural steps which had been undertaken during the review. While I accept that the applicant was at some disadvantage because he had no legal representation, and his English language ability was only moderate, I consider it is apparent from the evidence (for example, the transcript of the review hearing and the applicant's letters to the Minister and to his family) that he had sufficient comprehension to understand what the Tribunal had told him in both the directions hearing, and in the follow-up emails when he filed nothing ahead of the review hearing. I note the applicant is also familiar, over a long period of time, with court processes. I infer he realises there are timetables, orders made about filing material and the like. I do not accept he is unaware of what is supposed to happen when an entity like the Tribunal makes directions about what he should do to progress his review. Further, he responded within the 28 day time period to the cancellation decision, and he made substantive, handwritten representations on his own behalf, and indeed the handwritten answers he gave to the notification of the original cancellation decision, over a large number of pages and at considerable length, demonstrate a more than adequate capacity to express himself. I find on the evidence the applicant had a reasonable level of understanding about the need to file material and comply with processes, and on that basis there was nothing procedurally unfair about the Tribunal's expectation that if he had material he wished to put forward, he should have done so in a way which did not engage the preclusory provisions in s 500(6H) or s 500(6J). [57] Second, the Tribunal was entitled to rely upon the need for it to complete its review within the 84 day time period, and a supervising Court should, as Kenny J found in NZA, take the existence of this time period into account in determining what does, and what does not, constitute a reasonable and meaningful opportunity for a person to be heard in the Tribunal's review, and to put forward material to the Tribunal. Although the unstated premise of the applicant's submissions was that there would have been no difficulty in the Tribunal adjourning the review for a minimum of two days, and then reconvening, there was no evidence at all to support such a premise. There was a period of approximately two weeks to run before the 84 day time period would expire. The hearing was listed for two days, so that the Tribunal would have needed to find an additional two days within that two week period, as well as leaving itself enough time to write a decision. This would have needed to occur in the midst of what is a pressing and constant workload for the Tribunal. Counsel's suggestion in oral submissions that the Tribunal could have issued a decision without reasons is contrary to s 43(2) of the AAT Act, which imposes a mandatory obligation on the Tribunal (subject to exceptions which are not presently relevant) to give reasons, either orally or in writing. This review was plainly not appropriate for the giving of oral reasons. Further, to suggest that the Tribunal could act in a procedurally fair way only by deliberately electing not to comply with its obligation to give reasons is not a suggestion which should be accepted. [58] The Tribunal was entitled to, and indeed it was appropriate for it to, plan to leave enough time after the review hearing to write its decision and deliver it within the 84 day time period. … [60] Separately from my findings above, and separately from the reasons given by the Tribunal for failing to adjourn the review, in my opinion there was no denial of procedural fairness to the applicant because he was, in substance, given a meaningful opportunity to address the matters which were in the late submitted material. That is because, in substance (rather than in form), most of those matters were already amply raised before the Tribunal by the material the applicant had already submitted to the Minister, and by what the applicant said at the review hearing. Others were objectively of no or marginal relevance to the outcome of the review. 33 We can see no error in the primary judge's approach in dealing with the Tribunal's reasoning and her affirming the correctness of the Tribunal's decision. In any event, there did not seem to be an attack in the appellant's submissions as to the findings of the primary judge; the focus of the attack was on the refusal of an adjournment by the Tribunal. However, we need to make two observations. 34 First, the appellant argued that the grounds relied upon by the Tribunal in [80] must be viewed as a whole, each contributing to the view held by the Tribunal in declining to consider the Partner B Material; the argument being that the whole of the consideration of the Tribunal at [80] was infected by the grounds that the primary judge found to be of no substance at [54] of her Honour's reasons. Reliance was placed by analogy upon the approach taken to credibility findings as referred to in a number of authorities, recently summarised by Beach J in DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [51] to [52]: [51] I have sought to simplify the discussion for illustrative purposes only. But more generally there is force in the observations of Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44] and [45] that: It is not realistic to put the various aspects of the appellant's evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] "an assessment of credibility is not necessarily linear". Put another way, although it is not accurate to say that the Hospital Evidence was minor, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, "[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive." … To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]: …decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light. [52] Moreover, and on a related aspect, one must be cautious in taking the carefully expressed linear reasoning of the Tribunal and arguing that a later credibility finding in the sequence of the written reasons cannot have affected a credit finding earlier in the sequence. The logic, structure and flow of reasons does not necessarily dictate how in reality credibility findings on one aspect may or may not have consciously or subconsciously informed another aspect. 35 We do not see this discourse on the approach to be taken to credibility findings as being relevant to our consideration of the distinct grounds relied upon in [80] by the Tribunal in declining to consider the Partner B Material. Those grounds were independent considerations and did not involve an impressionistic assessment, which by its nature relies upon a careful consideration of all of the evidence. As the primary judge found, there were two valid (standalone) reasons for the view taken by the Tribunal in [80], which themselves justified the position taken by the Tribunal in not adjourning and not taking into account the Partner B Material. 36 The second matter to mention was an issue not considered by or taken into account by the primary judge: the fact that the Tribunal did not consider at all, before making its decision, the Partner B Material. One would normally expect that before refusing to receive potentially relevant material for its deliberation, the Tribunal would at least look at that material and assess its relevance and probity. The Tribunal itself referred to the lack of corroborating evidence produced by the appellant, which potentially at least the Partner B Material may have provided: see the references in the Tribunal's reasons at [113], [115] and [119]. 37 It was not argued before us by either party that the operation of s 500(6H) and s 500(6J) prevented the Partner B Material being considered by the Tribunal for the limited purposes of the Tribunal determining whether to adjourn, or to consider the Partner B Material in its final deliberations. 38 However, we consider that it was not necessary for the Tribunal to consider the Partner B Material even on a preliminary basis. In the circumstances confronting the Tribunal (as we have described above), and accepting the two explanations given by the Tribunal at [80] for refusing to consider the Partner B Material and relied upon by the primary judge (being "substantive, intelligible and reasonable" (at [55])) we cannot conclude that the Tribunal's exercise of power had miscarried in a way which affected its jurisdiction to decide the review. 39 However, without delaying any further on this matter, we turn to the issue of materiality. In our view, this issue is dispositive of this appeal in favour of the Minister. 40 There was no dispute that the primary judge applied the appropriate test in considering the issue of materiality. At [71] to [73] of the primary judge's reasons, her Honour stated: [71] Even if, contrary to the conclusions I have reached, there was a denial of procedural fairness to the applicant, in order for such a denial to be characterised as affecting the jurisdiction of the Tribunal, the denial would need to be of a nature which deprived the applicant of the "realistic possibility" of a different outcome on his review: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [24] and [31]. It is usually a question of fact on which an applicant bears the onus of proof: see SZMTA at [45]-[46]. [72] In other words, if the Tribunal had, as the applicant submits it should have, adjourned the hearing and considered the material from Partner B, has the applicant established, as a matter of fact, that there was a "realistic possibility" the Tribunal might have reached a different conclusion on the review? [73] That question needs to be addressed not simply by considering the remainder of the Tribunal's reasoning as it is expressed. The "realistic possibility" test (as with the approach in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147, reaffirmed by members of the High Court in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [43], [53] and [60]) is a hypothetical exercise. Here, it involves considering what might have happened if, before the hearing started, the Tribunal had taken the information from Partner B into account, and ultimately, what effect the subject-matter of the documents she provided was likely to have had on the Tribunal's reasoning process and its opinions about the correct or preferable decision on the review. 41 In applying this test, the primary judge carefully considered the reasoning and findings of the Tribunal and the Partner B Material which was before her in evidence. 42 At [75] the primary judge said: Assessing whether there was a realistic possibility of a different outcome for the applicant presents a particular challenge when, as here, the particular factor to which the jurisdictional errors are said to relate (the best interests of the applicant's children) was a factor which the Tribunal said favoured revocation. In other words, in terms of its contribution in the Tribunal's reasoning to the outcome of the review, the factor of the best interests of the applicant's children was already weighed by the Tribunal in favour of the outcome which the applicant sought. 43 The primary judge concluded (at [89]) that the Tribunal gave "considerable weight" to matters related to the appellant's family throughout its reasoning, which the Partner B Material was addressing. 44 In our view this cannot be denied, looking at the various paragraphs in the reasoning of the Tribunal: at [115], [155]-[156] and the conclusion ([158] to [165]): 115. The ex-partners Mr Umi refers to were not called as witnesses during the hearing and could not be cross-examined. No documentary evidence was before the Tribunal from the children or caregivers of the children whose interests Mr Umi invokes. That said, the Tribunal is satisfied, from the attendance of four of Mr Umi's five biological children at the hearing, that he has a close and continuing relationship with them and that the love they share is genuine. These children may want to have a continuing relationship with Mr Umi in the future, which would be significantly complicated if he were repatriated to Samoa. … 155. The Tribunal acknowledges that if returned to Samoa, Mr Umi would lose easy physical access to the family and friends he has in Australia, and to income support and other payments. He would also be subject to the stresses of re-establishing himself in a country he last lived in at the age of 19. That includes trying to re-connect with relatives, securing stable accommodation, and maintaining basic living standards. His aspiration to play a more prominent parental role in the life of his children would also be significantly complicated, potentially causing Mr Umi tangible distress. Under such circumstances, his psychological health may be impacted. 156. The Tribunal accepts that there are impediments confronting Mr Umi in re-establishing himself in Samoa and this consideration weighs in favour of revocation. … CONCLUSION 158. Mr Umi does not pass the character test and his visa was liable for mandatory cancellation under s 501(3A)(a)(i) of the Act. In determining whether the conditional discretion under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa should be exercised, the considerations at Part C of the Direction have been applied to the specific circumstances of his case. 159. Mr Umi's criminal offending has caused harm to members of the Australian community. Despite previous lenient treatment by the courts and frequent rehabilitative opportunities, Mr Umi continued to re-offend. He received multiple custodial sentences between 2004 and 2013, and was sentenced as a serious violent offender at his most recent court appearance. Mr Umi's conduct reflects a disturbing propensity for violence and a lack of respect for Australia's law enforcement framework. 160. If Mr Umi were to repeat his violent offences, the harm that may be inflicted is potentially very serious, encompassing serious injury or death. The Tribunal is unpersuaded by his claims about rehabilitation, noting that despite attendance on a number of courses and programs over the years, he has consistently re-offended. Moreover, the incidents of misconduct recorded against him during his current sentence do not reflect someone with persuasive insight, remorse and an intention to live a law-abiding life. Mr Umi's risk of reoffending is real and the potential harm caused by his recidivism is so serious that it constitutes an unacceptable risk to the Australian community. 161. Mr Umi clearly loves his children and aspires to reconnect more meaningfully with them in the future. Notwithstanding a dearth of evidence from his minor children or their guardians, the Tribunal is satisfied Mr Umi's children reciprocate his love and want him to remain in Australia. The Tribunal finds this primary consideration weighs in favour of revoking the cancellation of Mr Umi's visa, but less so given Mr Umi's role in the lives of his children can be considered sporadic and unreliable at best since his imprisonment in 2012. The interests of the two youngest children Mr Umi has with Partner A are given most weight given the specific circumstances of this case. These children may most benefit from a close and meaningful paternal relationship with Mr Umi. 162. Mr Umi's serious and prolonged criminal conduct is at odds with the reasonable expectations of the Australia community. Informed of the specific circumstances of his case, the broad middle ground of Australian society would expect that Mr Umi should not hold a visa. 163. The Tribunal is satisfied that the strongest family and social ties Mr Umi has are in Australia and this consideration weighs in favour of revocation. 164. The Tribunal accepts there are impediments confronting Mr Umi in re-establishing himself in a country he left as a 19-year-old. That includes locating stable accommodation, employment and basic living expenses. His unchallenged evidence is that he has no family or friendship networks to draw on in Samoa, because his mother lives in American Samoa. On balance, the Tribunal finds this consideration weighs in favour of revocation. 165. Having weighed all of the considerations individually and cumulatively, the weight of evidence supports a finding there is not another reason why the decision to cancel Mr Umi's visa should be revoked. That is because 'Protection of the Australian community' and 'Expectations of the Australian community' weigh very strongly against revocation. These considerably outweigh the primary consideration of 'Best interests of minor children in Australia,' and the other considerations of 'Strength, nature and duration of ties' and 'Extent of Impediments if removed,' which favour revocation. 45 However, the appellant did not accept that the primary judge gave sufficient weight to the Partner B Material, and its 'corroborative' nature of the appellant's own position. In particular, the appellant did not accept that the primary judge correctly characterised the effect of the letter as expressed at [24] of the reasons of the primary judge: During oral argument, the Court asked counsel for the applicant some questions about how this aspect of the letter should be understood, this being an important aspect of the letter for the applicant's ground of review and the need for him to establish that any legal error was material to the outcome of the review. Despite the submissions made by counsel, in my opinion, the correct understanding of these passages is that Partner B is saying to the Tribunal that she has aspirations that the applicant will provide financial support for his children in the future. Partner B is not asserting that he was currently providing financial support, or that she or Partner A were at the time reliant on any financial support from the applicant. The absence of any reliance, at the time of the Tribunal's decision, by Partner A or Partner B on financial support from the applicant, was a factual finding the Tribunal made: see [113(c)] of the Tribunal's reasons. 46 In our view, the primary judge did correctly characterise the Partner B Material. In the main, the Partner B Material was aspirational, and was concerned with the position of Partner B and her expectations for the future. Then it is to be recalled that the Tribunal concluded, already appreciating the close relationship between the appellant and the children, that the appellant had not always had his children's best interests in the forefront of his mind. The Tribunal had to make a prediction as to the future support that may be given to the children. There was material already before the Tribunal substantially similar to the information in the Partner B Material for the Tribunal to be able to make this prediction. 47 After considering all the material before the Tribunal and the Partner B Material, the primary judge concluded at [94] and [95]: [94] In summary, although Partner B's letter is eloquent and sincere, and raises a number of aspirations Partner B has for the applicant, and for the applicant's children (not only for her own but also Partner A's children), the plain fact of the Tribunal's reasons is that it was sceptical about the applicant's capacity to change by avoiding re-offending (including avoiding further domestic violence offending) and by avoiding drug-taking. It took a dimmer view of the applicant's conduct in the past, and likely conduct in the future, than Partner B put forward in the letter. The Tribunal did so despite its recognition in its reasons of the love and support the applicant's family had shown towards him. [95] The Tribunal's conclusion was that the negative findings it made "considerably outweigh[ed]" the factors favouring revocation. There is no objective basis to find that if the Tribunal had considered Partner B's letter and the attached documents, there was any possibly, let alone a realistic one, that the Tribunal would have decided to revoke the visa cancellation. We agree. CONCLUSION 48 The appeal should be dismissed, with costs. 49 Both senior and junior counsel for the appellant accepted a referral pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) to act on behalf of the appellant. The Court was assisted by their submissions, and expresses its gratitude. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Middleton, White and Burley. Associate: Dated: 5 June 2020