Toia v Minister for Immigration and Citizenship [2009] FCAFC 79 (30 June 2009)

MIGRATION – application for review of decision of Administrative Appeals Tribunal to cancel visa on character grounds under s 501 of the Migration Act 1958 (Cth) – whether appellant was absorbed into the Australian community and therefore held an absorbed person visa – whether appellant was entitled to advance a position in her claim for review which was the opposite to the position taken before the Tribunal – whether Tribunal’s discretion miscarried in finding that the appellant would not suffer hardship if returned to New Zealand – appeal dismissed.

Migration Act 1958 (Cth), ss 501
Migration Amendment Act 1983 (Cth)
Migration Legislation Amendment Act 1994 (Cth)
Migration Reform Act 1992 (Cth)
Migration Reform (Transitional Provisions) Regulations 1994 (Cth), reg 17

Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7; (2003) 126 FCR 152 referred to
Badraie v Commonwealth of Australia and Ors [2005] NSWSC 1195; (2005) 195 FLR 119 referred to
Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; (2003) 38 AAR 55 referred to
Charlie v Minister for Immigration and Citizenship [2008] FCA 1025; (2008) 171 FCR 44 referred to
Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435 referred to
Federal Commissioner of Taxation v Raptis [1989] FCA 381; (1989) 20 ATR 1262 referred to
The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225 referred to
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137; (2004) 136 FCR 494 referred to
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 applied
Lambidis v Commissioner of Police (1995) 37 NSWLR 320 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 applied
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 referred to
Moore v Minister for Immigration and Citizenship [2007] FCAFC 134; (2007) 161 FCR 236 referred to
Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 referred to
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1978] HCA 8; (1978) 139 CLR 231 referred to
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 referred to
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 referred to
Repatriation Commissioner v Warren [2008] FCAFC 64; (2008) 167 FCR 511 referred to
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 referred to
Ex parte Walsh; In re Yates [1925] HCA 53; (1925) 37 CLR 36 referred to
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 referred to

Direction No. 21 – Visa Refusal and Cancellation under Section 501
PATRICIA CAROL TOIA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL
NSD 236 of 2009

MOORE, STONE AND JACOBSON JJ
30 JUNE 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 236 of 2009

BETWEEN:

PATRICIA CAROL TOIA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGES:	MOORE, STONE AND JACOBSON JJ
DATE OF ORDER:	30 JUNE 2009
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using the Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 236 of 2009

BETWEEN:

PATRICIA CAROL TOIA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGES:	MOORE, STONE AND JACOBSON JJ
DATE:	30 JUNE 2009
PLACE:	SYDNEY

1 I have had the benefit of reading the reasons for judgment of Stone and Jacobson JJ in a draft form. I agree with their Honours’ reasons for upholding the judgment of the primary judge and the orders they propose. However I wish to make some observations about the course the proceedings took both in the Administrative Appeals Tribunal and in this Court.

2 The Minister’s decision was made on the premise that the appellant held an absorbed person visa. The appellant sought a review of that decision by the Tribunal. She was plainly entitled to do so. Before the Tribunal, her case was conducted on the footing that she held an absorbed person visa but it should not have been cancelled. Having failed to persuade the Tribunal that the visa should not have been cancelled, she challenged the decision of the Tribunal in this Court in proceedings that are a statutory analog to proceedings under s 75(v) of the Constitution: see s 476A of the Migration Act 1958 (Cth). The appellant challenged the Tribunal’s decision, not on the basis that it had conducted the review in a way or on a basis that manifested jurisdictional error, but rather on the footing that it had no jurisdiction to engage in the review that she had sought and in which she had actively participated, represented by counsel.

3 In the proceedings in this Court both before the primary judge and in the appeal, no point was taken that the appellant’s conduct had any relevant legal effect on either the appellant’s capacity to challenge in these proceedings, the assumption she embraced in the Tribunal (that she had held an absorbed person visa) or that her conduct might bear upon any discretionary power to grant relief, were she otherwise successful. Because no point was taken, it is inappropriate to discuss in detail possible legal consequences of her conduct. All that can be said in this matter is that it is, at the very least, a curious result that the Tribunal’s decision can be challenged by contesting the assumption embraced by the appellant both when initially applying for a review and later in the conduct of the review.

4 Whether conduct of this type has any legal consequences will fall for determination if and when the point is taken in similar proceedings if ever they occur. Two possible issues might arise for consideration though there may be others. One might be whether the failure to take the point before the Tribunal that the Minister had wrongly assumed that the applicant had an absorbed person visa (if the point could have been taken) gave rise to an Anshun estoppel in this Court: see Lambidis v Commissioner of Police (1995) 37 NSWLR 320 at 325 but cf. Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 and Badraie v Commonwealth of Australia and Ors [2005] NSWSC 1195; (2005) 195 FLR 119. Another might be whether, for the purposes of s 31A of the Federal Court of Australia Act 1976 (Cth), there is a high probability an application for constitutional writs is likely to fail because writs would not issue as a matter of discretion as the applicant had acquiesced in the invalidity of the decision: see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [52] and [147] and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [80] and [211].

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 236 OF 2009

BETWEEN:

PATRICIA CAROL TOIA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGES:	MOORE, STONE AND JACOBSON JJ
DATE:	30 JUNE 2009
PLACE:	SYDNEY

5 This is an appeal from a decision of Foster J handed down on 27 February 2009: Toia v Minister for Immigration and Citizenship [2009] FCA 166. His Honour dismissed an application for judicial review and/or the issue of constitutional writs to quash a decision of the Administrative Appeals Tribunal dated 20 December 2007 affirming a decision of a delegate of the Minister to cancel the appellant’s absorbed person visa.

6 The appellant is a New Zealand citizen who came to Australia with her family in 1979 when she was 14 months old. She has never left Australia. The evidence suggests that her family unit was highly dysfunctional. They lived in circumstances which seem to resemble those portrayed in the film "Once Were Warriors". The appellant’s evidence portrayed a picture of drug and alcohol abuse, physical and sexual abuse and incest.

7 On 30 July 2004, a delegate of the Minister purported to cancel a "special category" visa, which was the form of visa then thought to be held by the appellant. The delegate cancelled the visa pursuant to s 501(2) of the Migration Act 1958 (Cth) ("the Act") by reason of the appellant’s substantial criminal record. The Tribunal affirmed the delegate’s decision on 2 November 2004.

8 However, on 20 October 2005, the Minister was provided with a Departmental legal opinion stating that, upon the basis of information provided by the appellant about her parents, "Ms Toia probably did hold an absorbed person visa" at the time when the special category visa was cancelled.

9 The opinion stated that the appellant should be regarded as falling within the decision of the Court in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137; (2004) 136 FCR 494. In that case, French J held that the decision to cancel a special category visa, where the purported holder was absorbed into the Australian community so as to entitle him to an absorbed person visa, was a decision affected by jurisdictional error because it was a purported cancellation of a visa not held by the applicant.

10 In light of this, on 27 September 2007, a delegate of the Minister again purported to cancel the appellant’s visa, this time upon the basis that she held an absorbed person visa under s 34 of the Act. The cancellation was again effected under s 501(2) on account of the appellant’s lengthy criminal record. The appellant sought review of this decision by the Tribunal and it was that decision which was the subject of the application before the primary judge.

11 In the proceeding before the primary judge, the appellant did what his Honour called "a complete about face" by contending that she did not hold, and never had held, an absorbed person visa. He permitted her to change her position but rejected the contention that the appellant did not hold an absorbed person visa.

12 No point was taken before the primary judge that the appellant’s about face involved an assertion that she was entitled to depart from the common assumption adopted by the parties before the Tribunal that it had jurisdiction upon the footing that the appellant held an absorbed person visa.

13 The principal ground of appeal is that the primary judge erred in finding that the appellant was absorbed into the Australian community by the relevant date prescribed by s 34 of the Act. That question is one of fact but it is "an evaluative metaphor which invites consideration of a variety of factors": see Johnson at [45].

14 Here, where the appellant came to Australia as a child, the case before his Honour involved a consideration of whether the appellant’s parents had been absorbed into the Australian community within the principles stated by French J in Johnson and by a Full Court in Moore v Minister for Immigration and Citizenship [2007] FCAFC 134; (2007) 161 FCR 236: see Johnson at [46]-[47] and Moore at [50], [53]. The gravamen of the appellant’s argument in the present case was that the dysfunctional nature of the family unit and the tangential economic connection with the Australian community was insufficient to constitute absorption within those principles.

15 However, this ground of review raises a practical dilemma for the appellant because even if she is successful on it, the only other form of visa to which she could be entitled under the Act is a special category visa. As we have said, that visa was cancelled by the Tribunal in 2004.

16 Thus, if the appellant were to succeed on the non-absorbed person ground, she would be an unlawful non-citizen who must be removed from Australia under s 198 of the Act.

17 Notwithstanding this, Mr McHugh SC, who appeared for the appellant, submitted that if he were successful on this point, the appeal would not be an exercise in futility, although he conceded that the only practical course that would appear to be open is to seek leave out of time to review the Tribunal’s 2004 decision.

18 The only remaining ground of appeal argued before us was that the primary judge erred in failing to find that the Tribunal’s exercise of discretion miscarried because it failed to consider, or to give appropriate weight to, the hardship caused to the appellant by cancellation of her visa.

19 This ground also raises a dilemma for the appellant because it only arises if the non- absorption ground fails. Moreover, the effect of Mr McHugh’s submission on this point was that the Tribunal was bound to give greater weight to the hardship ground for an absorbed person than for the holder of a special category visa. This is because the cancellation of the visa of a person who has been absorbed into the Australian community is likely to have a greater impact on the person than on someone who has not been absorbed.

21 The effect of reg 17 of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) is that if a New Zealand citizen present in Australia has not been taken to have been granted an absorbed person visa by operation of s 34 of the Act, or a visa of another category listed in reg 17, the person is taken to have been granted a special category visa.

23 The relevant legislative history was discussed by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [10] ff.

24 Their Honours explained the "tortuous legislative history" and the constitutional foundations of the provisions of the Act which deal with the issue of visas. They referred to the shift between the constitutional power over immigration and emigration (s 51(xxvii)) and naturalisation and aliens (s 51(xix)).

25 They also referred to the amendments to the Act which were introduced by the Migration Amendment Act 1983 (Cth) ("the 1983 Amendment Act") and took effect on 2 April 1984, and to the shift from a permit based system to a visa based system of entry. They pointed out that the amendments introduced by the Migration Reform Act 1992 (Cth) and the Migration Legislation Amendment Act 1994 (Cth) ("the 1994 Amendment Act"), both of which came into force on 1 September 1994, had the effect that any non-citizen who was not a "lawful non-citizen" was an "unlawful non-citizen" liable to mandatory detention and removal. A person could only be a lawful non-citizen if he or she held a visa.

26 It was these amendments that introduced s 34 of the Act. Gummow and Hayne JJ explained at [19] that the rationale of s 34 appears to be to confirm the legal status of certain persons who had unintentionally been rendered prohibited non-citizens by the 1983 Amendment Act: see [19]-[20].

27 Their Honours pointed out at [21] that Parliament decided not to exempt persons who had ceased to be immigrants prior to 2 April 1984, that is to say persons who had been absorbed into Australia before that date, from the visa system, but instead to make it a universal visa system.

28 Thus, persons who had ceased to be immigrants before 2 April 1984 were taken to have been granted an absorbed person visa on the date of commencement of the 1994 Amendment Act, namely 1 September 1994.

29 The legislative history was also explained by French J in Johnson at [21] ff. His Honour observed at [33] that the phrase "ceased to be an immigrant before 2 April 1984" is a statutory criteria which involves a constitutional question, namely:

30 In Johnson at [33] ff, French J explained the statutory criteria of
s 34(2)(b) of the Act for the deemed grant of an absorbed person visa. The section includes a requirement that the grantee be a non-citizen who has, before 2 April 1984, "ceased to be an immigrant". His Honour referred to the constitutional underpinnings of the concept and to early authorities of the High Court which explained it.

31 French J observed at [34] that a feature of the criteria for immigrant status, as explained in Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, is whether or not, at the relevant time, the person is a constituent part of the community known as the Australian people.

32 His Honour referred again at [35] to Potter v Minahan and at [36] to Ex parte Walsh; In re Yates [1925] HCA 53; (1925) 37 CLR 36. The effect of those authorities was that the immigration power does not authorise Parliament to legislate with respect to persons who have made Australia their permanent home and have become members of the Australian community.

33 French J set out at [46] a list of nine non-exhaustive factors relevant to the consideration of whether a person has become a member of the Australian community. He said that in making the evaluative judgment, it is necessary:

34 In making the necessary judgment, it is permissible to consider the family’s history after 2 April 1984 to the extent that it may form an assessment of their pre-existing degree of commitment to Australia: see Johnson at [60]. In Johnson at [61], French J said that there is no "bright line" for determining the minimum period of time which must elapse from the date of entry before a person ceases to be an immigrant; it is part of the evidence but the evidence must be taken as a whole. The question was said to be one of substance, although the period of three and a half years:-

35 In Moore, Gyles, Graham and Tracey JJ said at [50] that absorption occurs when there has been an acceptance of the Australian way of life, and:

36 Their Honours did not specify a minimum period but said, at [54], that absorption will "require the passage of a considerable period of time" to elapse after entry.

37 A convenient summary of the relevant authorities on the question of absorption can be found in the decision of Branson J in Charlie v Minister for Immigration and Citizenship [2008] FCA 1025; (2008) 171 FCR 44 at [22]- [34].

38 The Tribunal was constituted by a Deputy President, Mr Julian Block. The Deputy President observed at [5] that the earlier decision of the Tribunal was affected by jurisdictional error because the appellant held an absorbed person visa, rather than the special category visa which was the subject of the decision in 2004.

39 The Tribunal noted at [7] that the appellant conceded that she did not pass the character test under s 501(7)(d) of the Act, in light of her lengthy criminal record which included terms of imprisonment in excess of the prescribed periods. The Tribunal then turned to the evidence before dealing with the question of discretion. That question was the only one before the Tribunal.

40 The Tribunal set out in full the appellant’s statement of 28 November 2007. The appellant also gave oral evidence in chief before the Tribunal which was referred to at [14] ff.

41 It is sufficient to say that the evidence painted a tragic picture of sexual abuse of the appellant as a young child, including some incidents which may have occurred before 2 April 1984, although that date was of no relevance to the task before the Tribunal. The picture included drug and alcohol abuse at an early age, and, later, psychiatric problems.

42 The Tribunal also referred to the appellant’s evidence of her then current family ties. Both of her parents were dead. She had no contact with two of her siblings (who were in New Zealand) and no apparent relationship with another sister who was living in Queensland. She was in a relationship with a Mr McLelland, who was addicted to drugs, including heroin.

43 The Tribunal found that the Appellant’s evidence was disjointed, sometimes incoherent and at times, illogical, as well as, in some aspects, untruthful. Whether this was because she had been addicted to heroin (although she was at the time a participant in a methadone program), was not mentioned by the Tribunal.

45 The primary judge had before him the whole of the Tribunal record. There were no transcripts of the proceeding in the Tribunal but his Honour of course had the Tribunal’s statement of reasons which included the discussion of the evidence to which we have referred.

46 Before his Honour, additional evidence was tendered which consisted of incoming passenger cards completed by the appellant’s parents when they arrived in Australia in 1979 and other departure and arrival cards for flights taken by the appellant’s parents.

47 The appellant did not give oral or affidavit evidence before the primary judge. Nor was she cross-examined on the statements that were tendered as part of her evidence.

48 The primary judge comprehensively reviewed the authorities dealing with the proper construction and application of s 34(2)(b) of the Act. The reasons for his findings that the appellant was an absorbed person are to be found at [214] to [220] as follows:

49 In the course of argument we raised with the parties the question of whether it was open to the appellant to advance a position in her claim for judicial review which was the opposite of that which she took before the Tribunal.

50 In particular, this raises the question of whether a decision-maker can fall into jurisdictional error by acting in accordance with the jurisdictional basis asserted by the applicant, but from which that person then seeks to depart in an application for judicial review.

51 We were assisted by short written submissions provided by counsel for the appellant and the Minister. The effect of both sets of submissions was that the appellant was not precluded on judicial review from changing her position, but the change of position is a factor to be taken into account in the exercise of the court’s discretion.

52 In Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 342-343, Bowen CJ was of the view that a party is not necessarily precluded by the conduct of his or her case before the Tribunal from arguing on an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), matters conceded before the Tribunal.

53 Although his Honour was there considering an appeal on a question of law, it seems to us that his statement of the principle applies equally to the position which applies on judicial review: cf Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; (2003) 38 AAR 55 at 60.

54 This is because Kuswardana was concerned with an error of law which consisted of a failure of the Tribunal to consider the central question that arose in the case, namely whether the applicant was an immigrant: see also The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225 at 231-232.

55 Moreover, Bowen CJ made express reference to cases dealing in general terms with questions argued in appellate courts that were not argued below. He went on to say that the issue is one of the interests of justice, particularly where the consequences of not correcting the Tribunal would be exceptionally serious to the appellant.

56 In Federal Commissioner of Taxation v Raptis [1989] FCA 381; (1989) 20 ATR 1262, Gummow J said at 1267 that there "must be some difficulty" in finding an error of law in the failure of the Tribunal to make a finding that was first raised on an appeal under s 44(1) of the AAT Act.

57 The observations of Bowen CJ in Kuswardana and of Gummow J in Raptis were referred to in a statement of the relevant principles in Repatriation Commissioner v Warren [2008] FCAFC 64; (2008) 167 FCR 511 at [78]. That was also an appeal on a question of law but the statement of principles seems to us to apply equally to the present matter.

58 It is to be noted that the Full Court said in Warren that the courts will more readily permit a matter to be raised for the first time where the matter:

• goes to a misapprehension that was shared by the parties before the Tribunal;

• goes to a condition precedent to the exercise of the power which will have a serious impact on the individual.

59 The Minister did not argue that these principles have no application where the change of position involves a complete reversal of that which was adopted before the decision-maker. Nor did the Minister argue that the course which was adopted was barred by Anshun estoppel. Thus, the change of position was, in effect, consented to. In those circumstances we are prepared to accept that it was open to the appellant to seek to depart from the jurisdictional basis which she asserted before the Tribunal.

60 Mr McHugh presented a compelling argument that the primary judge was in error in finding that the appellant was an absorbed person at the relevant date. However, we have come to the view that we cannot accept it because, in our view, there was no appellable error in the finding made by the primary judge.

61 It is true, as Mr McHugh’s argument made clear, that there was a body of evidence which was not referred to by the primary judge, that paints an even more graphic picture of the degradation of the family unit than that which was described by the Tribunal. The evidence was, for the most part, contained in a Statutory Declaration of the appellant dated 15 September 2004 which was apparently in evidence for the first Tribunal hearing.

62 But the short answer to Mr McHugh’s submissions is that, having regard to the course permitted by his Honour, the appellant bore the onus of establishing that the basis upon which the Tribunal proceeded, namely that the appellant held an absorbed person visa, was wrong.

63 The authorities to which we referred on the question of the change of position provide some guidance on this. What may be gleaned from them is the need for the clearest and most cogent evidence to depart from a position taken below, especially where, as here, it provided the jurisdictional basis upon which the matter was dealt with in the Tribunal.

64 The observations of Barwick CJ in Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1978] HCA 8; (1978) 139 CLR 231, to which Bowen CJ referred in Kuswardana at 342, were made in the context of a point taken for the first time on appeal. But they also inform the considerations which apply when a party seeks to contend for an opposite finding to that which was initially sought and obtained. The interests of the administration of justice to which Dixon CJ referred in Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 at 641 and Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435 at 444 also underlie the consideration of such evidence.

• the findings, and the evidence on which they were based, were inadequate to justify the ultimate finding that the appellant had ceased to be an immigrant; and

• certain of his Honour’s factual findings could not reasonably be arrived at on the evidence.

66 In particular, Mr McHugh pointed to the short period of time during which the appellant and her parents had been in Australia before 2 April 1984 (a period of four and a half years); the cultural and social separateness of the family unit from the broader Australian community; the absence of economic ties; and, finally, the degradation of the family’s circumstances which showed a failure to accept minimum Australian standards.

67 Whilst it is true that the evidence suggests that the family’s social connections were largely within a segment of the Maori community, we do not consider that there was appellable error in the primary judge’s finding that the appellant’s family did not see themselves culturally as Maori.

68 But even if the appellant’s parents retained their Maori cultural heritage, the observations made by French J in Johnson suggest that this would not be inconsistent with absorption into a multicultural Australia society: cf Moore at [50]. Importantly, the primary judge found, upon a consideration of contemporaneous immigration records, that the family intended to settle in Australia and live here permanently.

69 The same observation seems to us to apply to the degradation of the circumstances in which the family lived. Whilst there is much to be said for the proposition that the family’s circumstances, including the abuse suffered by the appellant, showed a total disregard for acceptance of Australian standards, and indeed for Australian laws, we do not think that this of itself was sufficient to demonstrate appellable error in the primary judge’s finding of absorption.

70 There was force in the attack on the primary judge’s finding that the evidence did not support a conclusion that the appellant had suffered "regular physical violence or abuse", but there are questions of degree involved in such a finding. We are not persuaded that it is wrong, but in any event, it is only a part of the overall "evaluative metaphor" which is required to be carried out.

71 The other matters to which Mr McHugh referred, including the evidence as to absence of economic or family ties, were not sufficiently clear to warrant overturning the evaluative metaphor arrived at by the primary judge.

72 There was no error in the finding that four and a half years was a sufficient period of time to reside in Australia in order to justify the finding of absorption. It is within the bounds referred to by French J in Johnson. We do not see that there can be a rigid five year minimum as was contended by the appellant. In any event, it is only one factor to be taken into account in assessing the question of absorption.

73 In our view, the unexplained change of position of the appellant was also a matter to be taken into account in considering the evidence on the question of absorption. The primary judge was correct in saying at [203] that the change of position must be taken into account in evaluating such evidence as there was on the question of absorption.

74 Ultimately, it seems to us that, in the light of the history of the matter before the Tribunal and the generality of some of the evidence contained in the Statutory Declaration, in spite of the graphic nature of the material, it cannot be said that the appellant has discharged her onus of establishing that the primary judge arrived at the wrong evaluative determination. We have reached this conclusion, notwithstanding that the primary judge did not refer to the details which we have considered in the appellant’s Statutory Declaration of 15 September 2004.

75 Mr McHugh submitted that the primary judge erred in failing to find that the Tribunal’s exercise of discretion miscarried in finding that the appellant would not suffer hardship if returned to New Zealand.

76 This issue was raised as a ground of review before the primary judge but it was argued as a no evidence ground.

77 The gravamen of the argument before us involved three steps. First that, by definition, the impact of removal from Australia upon an absorbed person is greater than the impact on a non-absorbed person. This argument focuses upon the concept of absorption and the factors referred to by French J in Johnson at [46].

78 The second step is that Direction No. 21, made under s 499 of the Act, is said not to require the decision-maker to consider the question of hardship.

79 The third step is that, in purporting to deal with the question of hardship, the Tribunal based its finding on the statement that if the appellant returned to New Zealand she would suffer no significant hardship because she "is a Maori".

80 It was submitted on behalf of the appellant that this statement not only lacked evidentiary support but, in effect, represented a narrow mono-cultural assumption which ought to be rejected.

81 Plainly, the decision to cancel any form of visa held by a permanent resident has profound effect upon the visa holder. It is true that the decision to cancel a visa of a person who has satisfied the test for an absorbed person visa may be thought to be at the higher end of the scale of seriousness. But the seriousness of a decision to cancel a visa is not confined to the holder of absorbed person visas under s 34: see Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7; (2003) 126 FCR 152 at [24], [65].

82 In our view, there is nothing in s 34 or in s 501 of the Act which gives any statutory indication of the weight to be given to the impact of the decision on the visa holder. Accordingly, subject to the matters referred to in Direction No. 21, it was for the decision-maker, not the court, to determine the appropriate weight to be given to the matters to be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 41.

83 Direction No. 21 is entitled "Direction – Visa Refusal and Cancellation under Section 501". It was made pursuant to s 499(1) of the Act. It provides that if a non-citizen does not pass the character test, decision-makers are to exercise the discretion whether or not to cancel the visa, taking into account primary and other considerations. Part 2 of the Direction provides directions on what the considerations are and the weight to be given to them.

84 The issue in this case is not concerned with the "primary considerations", but with other considerations set out in Part 2. The Tribunal made express reference to the primary considerations commencing at [65] of its reasons.

85 There are two paragraphs of Direction No. 21 which might be thought to raise the question of hardship. One of them is in [2.17(a)] which refers to the extent of disruption to the non-citizen’s family, business and other ties to the Australian community. The other is [2.17(c)] which refers to the degree of hardship which would be caused to immediate family members lawfully resident in Australia.

86 We therefore reject the submission that the decision-maker was not bound to consider the question of hardship to the appellant’s family or to other people with whom the appellant has ties.

87 It seems to us that although the Tribunal did not say so expressly in the terms of [2.17] of Direction No 21, it did consider and give some weight to the question of hardship. It referred to this specifically in the passages we have set out above.

88 In addition, whether or not the Tribunal is bound to consider hardship to the applicant himself or herself as a factor in the exercise of its discretion, it is clear that in the present case, the Tribunal did take into account the potential hardship to the appellant resulting from her deportation. In particular, at [72] – [74] of its reasons, as set out above, the Tribunal took into account medical treatment available to the appellant in New Zealand (compared to that available in Australia); the appellant’s family ties (or lack thereof) in Australia; her relationship with Mr McLelland and his willingness to join her in New Zealand; and the significant period of time that the appellant has lived in Australia.

89 The Tribunal’s statement that the appellant is a Maori, "so that" her return to New Zealand should not cause hardship, suggests a causal connection. The statement is, at best, a broad and generalised one. However, it is not the sole basis upon which the Tribunal addressed the question of hardship.

90 It follows in our view, that there was no jurisdictional error on the part of the Tribunal in its consideration of the hardship to the appellant.

91 This is a tragic case but as Allsop J said in Ayan, at [65], feeling sorry for, or sympathetic to, an appellant is not part of the judicial process.

92 For the reasons set out above, the appeal must be dismissed, and costs must follow.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone and Jacobson.

Counsel for the Appellant:	Mr R. McHugh SC with Mr J. Spinak

Solicitor for the Appellant:	Chang, Pistilli & Simmons

Counsel for the Respondents:	Mr S. Lloyd SC with Ms A. Arunothayam

Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	13 May 2009

Date of Judgment:	30 June 2009

Federal Court of Australia - Full Court

Toia v Minister for Immigration and Citizenship [2009] FCAFC 79 (30 June 2009)