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

Summary of outcome 8 For the following reasons, jurisdictional error in the making of the Minister's decision has been demonstrated and the relief sought should be granted.

The issues 9 The following issues arise on the application: (1) What was the nature of the representation that the Minister is alleged to have failed to properly consider? (2) What was the Minister's statutory task when it came to considering the representation? (3) Did the Minister fail to perform the statutory task?

Issue 1: The representation to the Minister 10 A detailed submission by way of representation in support of a request for revocation of the cancellation of his visa was emailed to the Minister by migration lawyers acting for Mr Dunn. Under the heading 'Extent of Impediments if Removed', the submission stated: Mr Dunn is a 59-year-old man who has lived in Australia since he was four years old. As a result of sustained systematic abuse, Mr Dunn never received the education the State was obligated to provide. He has managed to maintain employment through skills he has developed however as is clear from the evidence before the decision-maker, Mr Dunn requires support which can only be provided to him in Australia by his family. 11 The submission then described the lack of family and social support that Mr Dunn would have available in the United Kingdom if he was not allowed to remain in Australia. The submission then addressed what were described as the 'mental health concerns' of Mr Dunn. It began: Friends and family are committed to ensuring that Mr Dunn receives the support he needs in Australia. They all have grave fears for his mental and physical health if he were to be removed from Australia. After three suicide attempts and diagnoses of Post-Traumatic Stress Disorder (PTSD), anxiety, depression and probable borderline personality disorder, their fears are well founded. 12 The submission then referred to an extract from a report provided by Dr Brann (enclosed with the submission). Dr Brann is a psychiatrist. The quoted opinion was as follows: In my opinion it would absolutely be contrary to Mr. Dunn's psychological health to be deported from Australia, as it is clear that his only sense of positive emotional connection in his whole life, is with the few family members that he associates with and that still visit him and try to assist him. It is my opinion that Mr. Dunn would be at grave risk of self-harm if he were to find himself completely isolated or taken away from the few supports he has. 13 By self-harm it is apparent from the content of the report and the submission that Dr Brann means that Mr Dunn would be at risk of taking his own life. 14 The submission then stated: Mr Dunn needs family support to manage his trauma symptoms. His family are desperate to be able to provide this support and they fear for Mr Dunn's life if he is unable to receive this support. 15 Dr Brann diagnosed Mr Dunn as having a clearly developed Dissociative Identity Disorder (a condition previously known as Multiple Personality Disorder) which was 'a consequence of the innumerable experiences of sexual and physical abuse perpetrated against him … at Castledare Orphanage and Clontarf Orphanage'. 16 A separate report by Dr Watts, a clinical psychologist, also referred to in the submission concluded that Mr Dunn 'clearly has PTSD and there are opinions that he also has dissociative identity disorder'. Dr Watts based his opinion on a tele-health consultation, a personality assessment inventory administered by a prison staff member and a review of other reports including the report of Dr Brann. Dr Watts' report includes the following: Mr Dunn explained that the victim of his actions was a younger person he had met at a service station and they had organised to get together for drinks and playing on the Play Station. Mr Dunn explained that he had been taking drugs and drinking alcohol while this young man was present in the home. He said that he did not remember what he did, but the next day the young man was telling him what had transpired which is the matter as charged. Mr Dunn explained that after he was charged he drove and parked at his favourite beachside spot and slashed his wrists with a carving knife. He said that he was hoping to die, but somebody else found him in time for this to be addressed. He explained he was flown by Royal flying Doctor Services to Perth for surgery on his wrists. There is sufficient information in the Sentencing Remarks to get the nature of the sexual assault and related charges. This eventually went to Trial and Mr Dunn was sentenced to his current sentence. His visa has been revoked as a result of these offences. Mr Dunn explained that he is exceptionally remorseful about what occurred. This includes his initial reaction as to be excessively suicidal, but also just in general cognitive functioning. He said that there has not been a day he does not think about what he did. He speaks of the shame associated in doing what he hated being done to him. From what Mr Dunn has described to me, and what I have read about the offence characteristics in the documents, it seems Mr Dunn had what is called a catathymic reaction. This is where somebody subject to serious abuse bottles those feeling up, and then at some point the issue is triggered and the entire feelings come to the surface. Clearly, this was the case. Mr Dunn explained right from his suicide attempt immediately after the incident through to the current day, suicidal thoughts have been quite significant. He struggles with the idea of living. He says he nearly died and was resuscitated at the time.

Issue 2: The Minister's statutory task 17 The Minister has a discretion to cancel any visa if the Minister reasonably suspects that the visa holder does not pass the 'character test'. The circumstances in which a person will not pass the character test include where a person has a substantial criminal record. Amongst other instances, a person who has been sentenced to a term of imprisonment of 12 months or more has a substantial criminal record for the purpose of the provision. These matters are provided for in s 501 of the Migration Act. 18 In addition, the Minister must cancel a visa if the Minister is satisfied that the person does not pass the character test because the visa holder has a substantial criminal record and the person is in custody serving a term of imprisonment on a full-time basis for an offence under Australian law. These matters are provided for in s 501(3A). 19 In the present case, Mr Dunn's visa was cancelled under s 501(3A) by a delegate of the Minister. 20 If the Minister 'makes a decision' under s 501(3A) then s 501CA applies: s 501CA(1). The reference to the making of a decision appears to reflect that aspect of the terms of s 501(3A) which depends upon the formation of a state of satisfaction by the Minister as to whether the person meets the requirements of the provision. If that state of satisfaction is formed, the legislation requires the Minister to cancel the visa. In those circumstances and in that respect there is no decision to be made by the Minister. Rather, there is a statutory requirement to cancel the visa. 21 If a person's visa is cancelled under s 501(3A) then the Minister must, as soon as practicable, give the person a written notice that sets out the decision (as well as certain required particulars) and 'invite the person to make representations to the Minister … about revocation of the original decision': s 501CA(3). Thereafter, the Minister may revoke the 'original decision' if the person makes representations and the Minister is satisfied that the person passes the character test or there is 'another reason' why the original decision should be revoked: s 501CA(4). A decision not to exercise the power conferred by s 501CA(4) is not amenable to statutory administrative review: s 501CA(7). 22 The Migration Act requires that steps be taken to deport a person who is not an Australian citizen and who is in Australia without a visa. 23 Therefore, where s 501(3A) applies it is only at the stage of deciding whether to revoke the visa cancellation that consideration may be given to particular circumstances that bear upon whether the person should be deported. 24 By both imposing a requirement to invite representations and then enlivening a power on the part of the Minister to revoke the decision to cancel the visa if representations are made, the provisions as just described have been construed as giving rise to two statutory obligations on the part of the Minister. 25 First, if representations are made, the Minister has an obligation to make a decision whether to revoke the decision to cancel the visa and must revoke the cancellation if satisfied that there is 'another reason' why that should occur: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [3] (Reeves J), [73]-[74] (Colvin J). 26 Second, in making that decision the Minister has a statutory duty to form the required state of satisfaction whether to revoke the visa cancellation by reference to the material in the representations: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at 34. 27 It is important to be clear as to what is mean by the second obligation. The following matters may be taken from Omar at [34]-[41]: (1) although the representations as a whole are a mandatory relevant consideration such that a decision made without taking into account the representations in any way would be reviewable for jurisdictional error, it is not the case that each representation can be so described; (4) therefore, a failure to bring to account particular matters raised in the representations in forming the state of satisfaction as to whether there is another reason why the cancellation should be revoked is not a failure to conform to the requirements of the statute; (5) rather, in making the decision that is required by s 501CA(4) to be made, the Minister must consider significant and clearly expressed matters raised by the representations that are of such a kind that they may influence the formation of the required state of satisfaction by the Minister; (6) the obligation to consider extends to matters expressed in the representations that may, with other matters, carry sufficient weight or significance to satisfy the Minister to revoke the cancellation where it is evident that those matters are advanced in the representations as being significant; (7) the obligation to consider does not extend to an obligation to bring to account particular matters raised by the representations when making the decision; (8) a state of satisfaction formed without considering such matters is not a state of satisfaction of the kind required; (9) in deciding whether the required state of satisfaction has been formed by considering the representations, helpful guidance may be obtained from those cases where a requirement to consider is used explicitly and in that context it has been said that the decision-maker must obtain an understanding of the facts and contentions advanced such that the decision-maker knows what they say and, for that purpose, the decision-maker cannot simply rely on an assessment made by others; (10) to consider the matters expressed in the representations that may satisfy the Minister to revoke the cancellation requires an active intellectual process whereby there is regard to the representations and the mind of the Minister is brought to bear in evaluating whether they have significance for the Minister in forming the required state of satisfaction; and (11) there is danger in using terminology such as 'proper, genuine and realistic consideration' to express the nature of the statutory task because it may encourage the Court to evaluate the merits of the reasoning and whether a matter should be regarded as relevant rather than focus upon whether matters that have been expressed as significant in the representations are considered. 28 In Omar the above aspects were summarised at [37] as an obligation on the part of the Minister 'to engage in an active intellectual process with [the] significant and clearly expressed relevant representations made in support of a revocation request'. It was an obligation that was said to be consistent with the following statement by the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] (Markovic and Steward JJ agreeing): … 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. 29 For present purposes, I would emphasise two points that follow from the above summary of the nature of the statutory task to be performed by the Minister when making a decision under s 501CA(4). 30 First, the significance of a particular matter for the outcome of the decision to be made by the Minister is not determined by the manner in which it is expressed in the representations. A matter that is given emphasis or importance by the person seeking the revocation of the visa cancellation decision may be a matter which is not considered to assume significance by the Minister. The language used to express the representation cannot elevate its significance in the evaluative process to be undertaken by the Minister. Evaluation of the relevance, importance and persuasive force of a particular representation is a matter for the Minister. The statutory power to revoke the cancellation of the visa is conferred without specifically defined criteria or considerations to be taken into account. The Minister is entitled to form his own view as to what may be sufficiently significant to constitute 'another reason' for revoking the cancellation of the visa and in doing so may be guided by any relevant government policy which is not inconsistent with the provisions or the objects of the Migration Act. 31 Therefore, simply because a matter does not feature prominently in the reasons given by the Minister or is not treated in those reasons with the same significance or weight that the matter is given in the representations does not mean that the Minister has not considered the matter in forming the state of satisfaction as to whether there is another reason to revoke the cancellation. It may reflect a view that the matter does not bear the significance attributed to it by the representations. 32 Put another way, care must be taken not to treat matters raised by way of representation as relevant considerations which must be brought to bear by the Minister in reaching the required state of satisfaction as to whether there is 'another reason' to revoke the visa cancellation. 33 Second, in order for the Minister to undertake the required task personally, the Minister must be briefed with an accurate and sufficient summary of the matters raised by the representations or must undertake the consideration of the representations personally. Counsel for the Minister accepted that the reasons in this matter were prepared before any evaluative consideration was undertaken by the Minister and therefore formed the function of briefing the Minister in the sense that they were provided to the Minister before the decision was made. The Minister then made the decision by reference to the matters captured in the reasons document. 34 The acceptance by counsel of that position was appropriate in the circumstances. The form of the decision as published in the present case identified three possible outcomes, one of which was circled by the Minister. Therefore, in may be inferred that the material was presented to the Minister with a selection to be made between three options with an indication that the Minister should circle the option selected by the Minister. The third option was for a 'Non-revocation outcome'. It referred to the reasons for decision being 'set out in the attached Statement of Reasons'. 35 It may also be readily inferred that the reasons document provided to the Minister with those three options became the expression of the Minister's reasons. There was no evidence of any consideration by the Minister of matters beyond those stated in the document that became the statement of reasons. By that process the matters in the reasons document came to be provided as the statement of the reasons for the Minister's decision (that is, the expression of the matters considered by the Minister in forming the required state of satisfaction that there was not another reason to revoke the cancellation of Mr Dunn's visa). 36 The reasons themselves did included the following general statements (paras 10-11): As I am not satisfied that Mr DUNN passes the character test, I have considered, in light of Mr DUNN's representations, whether I am satisfied that there is another reason why the original decision should be revoked. In undertaking this task, I considered Mr DUNN's representations and the documents he has submitted. 37 The reasons then set out a dot point list of the reasons articulated by Mr Dunn as to why his visa cancellation should be revoked. 38 However, in the context that has been described, a statement in the reasons prepared before any consideration by the Minister is insufficient to indicate actual consideration of the submission and supporting documents by the Minister. Therefore, in the present case, the matters stated in the reasons may be taken to be the extent of the matters with which there was an active intellectual engagement by the Minister. 39 The two distinct aspects described above assume significance when evaluating the reasons given by the Minister in the present case and determining whether there was an active intellectual engagement with that part of the representations that emphasised the high suicide risk to Mr Dunn if he was deported to the United Kingdom without any support from family and friends.

The Minister's statement of reasons 40 The Minister's obligation is to understand what is being put by the representations and to have those matters in mind together with any other matters of policy that the Minister considers to be significant in reaching a decision. The reasons should be approached on that basis. 41 As has been noted, at the outset, the Minister's reasons set out a dot point list of the reasons articulated by Mr Dunn as to why the decision to cancel his visa should be revoked. The list was as follows: • the mitigating circumstances for his offending include primarily the abuse, including sexual abuse, he suffered as a child, both from family members and while living in Christian Brothers institutions • the significant mental health and substance abuse concerns caused by the childhood abuse which he had never received treatment for • he now receives treatment for these conditions, and has completed relevant rehabilitation programs • he has a good prison record, including involvement in the mentoring and support of other prisoners • he is remorseful and takes responsibility for his offending • he has the support of family, and plans for employment and ongoing treatment, as a protective factor • it is in the best interests of his niece's children, Ava aged seven and Jayden aged three • he has family and social ties in Australia, and his family would be adversely affected by his removal from Australia, particularly given his high suicide risk • he has made a positive contribution to Australia through his employment • he has no family in the United Kingdom, and would not receive the same support for his mental health • the Australian community would have a higher tolerance for his offending, given his childhood abuse while in the government's care and the sentiments of the community throughout the Royal Commission into Institutional Responses to Child Sexual Abuse 42 Then under the heading 'Extent of impediments if removed' the reasons stated (paras 20-26): I have had regard to the impediments that Mr DUNN will face if removed from Australia to his home country of the United Kingdom in establishing himself and maintaining basic living standards. Mr DUNN is 59 years of age. He has significant mental health concerns, and suffers from diabetes, hypertension and asthma. Mr DUNN states that he does not know anyone in the United Kingdom. He states he is unlikely to find work due to his mental health, which will be exacerbated by the lack of family support available to him. Mr DUNN states that, without this support, he will commit suicide. I note that Mr DUNN has provided a report by psychologist Dr Susan Brann, who finds that it would be contrary to Mr DUNN's psychological health to be deported from Australia. She stated he will require significant mental health support on release from prison. Ms Graziotti states that Mr DUNN is reliant on the professional and social support available to him in Australia. She states he would not have access to the same social support as he has no family, friends or contacts in the United Kingdom. Due to his age, Mr DUNN would struggle to find employment, friends or other support. Ms Graziotti states that Mr DUNN needs family support to manage his trauma symptoms, and his mental health would deteriorate without that support. She states that his difficulties would be 'above and beyond' those faced by other returning UK citizens. I have considered that Mr DUNN was four years of age when he came to Australia, that he has resided here for some 55 years, and that he has not resided in the United Kingdom as an adult. I consider that Mr DUNN would not face any substantial language or cultural barriers in the United Kingdom as this country has English as an official language and shares a similar culture, economy and society to Australia. I find that Mr DUNN will face hardship upon his removal to the United Kingdom, exacerbated by his significant mental health issues and the absence of familial support. I find that, as a citizen of the United Kingdom, he will have access to health, social, welfare and economic assistance which will support him. I consider that over time Mr DUNN, with the support available to him, will be able to establish himself and maintain a living standard equivalent to that of other citizens of the United Kingdom. 43 Later, in the course of considering the risk to the Australian community, the reasons set out the mental and physical problems reported by Mr Dunn to Dr Brann (para 69). They also made reference to Dr Watts having noted that psychological testing showed 'very high elevations on Anxiety, Depression, Trauma and Suicidal Ideation, and a number of symptoms indicative of significant dissociation' (para 73).

Issue 3: Performance of the Minister's statutory task 44 The submissions advanced for Mr Dunn focussed upon the following matters: (1) the emphatic character of the opinion of Dr Brann (quoted above) which, it was submitted, was not reflected in the statements to be found in the Minister's reasons; (2) the reliance on Dr Brann's emphatic opinion in the representations made by Mr Dunn's migration lawyers; (3) the failure to refer in the reasons to the main passage from the report of Dr Brann that was relied upon in the representations; (4) the attribution in the Minister's reasons of the concerns about suicide to a statement by Mr Dunn that, without family support, he will commit suicide (rather than by referring to the expert opinions to that effect); and (5) the characterisation of the statement about access to health, social, welfare and economic assistance as being formulaic rather than reasoned, which was said to be indicative of a failure to undertake an active intellectual process of consideration of the relevant part of the representations. 45 For reasons that have already been given, in order for the Minister to undertake the required statutory task, the Minister must consider the significant and clearly expressed matters that are of a kind that may influence the formation of the required state of satisfaction by the Minister. To do so, the Minister must know what is said in the representations about those matters. 46 In the present case, the matters that are known to the Minister are only those matters expressed in the reasons. That is because it may be inferred from the form of the reasons and the absence of any other evidence that it was the means by which the Minister was briefed. Significantly, the reasons begin with a summary of the matters advanced by way of representations which include the following reason: [Mr Dunn] has family and social ties in Australia, and his family would be adversely affected by his removal from Australia, particularly given his high suicide risk. 47 The summary goes on to state: [Mr Dunn] has no family in the United Kingdom, and would not receive the same support for his mental health. 48 Expressed in those terms, the reasons do not quite reflect the terms of the representation advanced on behalf of Mr Dunn which was to the effect that it was the professional opinion of Dr Brann that it would be absolutely contrary to Mr Dunn's psychological health for him to be deported from Australia and separation from his family would place Mr Dunn at grave risk of self-harm. 49 It was submitted for the Minister, in effect, that the reasons reflected an appropriately measured consideration of the representations and it was not necessary for the language to reflect the more emphatic terms in which the representations and the opinion of Dr Brann were expressed. I accept the general thrust of that submission. In my view, the summary sufficiently captures the nature of the matter advanced on behalf of Mr Dunn as a reason why the cancellation decision should be revoked, namely his high risk of suicide if he was removed from Australia and isolated from available family support. However, even allowed for the tone of the reasons as a whole, what is not indicated in the summary is the basis upon which that matter was put before the Minister, namely the opinion of Dr Brann. 50 The subsequent consideration of that matter within the reasons, also fails to reflect the fact that the submission was advanced with the strong support of the opinion of Dr Brann. The way in which the reasons are expressed suggests that the concerns about suicide were raised by Mr Dunn himself and not by a qualified medical practitioner. 51 Significantly, the reference to Dr Brann in the reasons would suggest to a reasonable reader (relevantly in the present case, the Minister) that there would be a negative impact upon Mr Dunn's psychological health if he was to be deported to the United Kingdom that would be able to be ameliorated if his requirement for 'significant mental health support' was able to be met. There is no hint in the language, even allowing for its appropriately temperate character, that the opinion of Dr Brann is that it is the isolation from family that would put Mr Dunn at risk. In effect, the matter raised in the representations was quite different to that suggested by the language used in the reasons, namely that deportation would endanger Mr Dunn's life not because of the lack of access to mental health services but because it would sever him from his only sense of positive emotional connection. This significant and clearly expressed representation is not to be found in the language used in the reasons. 52 The language of the concluding statement in the section of the reasons dealing with impediments if removed, also reflects an understanding that the issue is with the availability of mental health services in the United Kingdom. It states simply that Mr Dunn will face hardship upon his removal to the United Kingdom 'exacerbated by his significant mental health issues'. In that context, it is understandable that the Minister may reason by reference to the availability of assistance and services in the United Kingdom. The fact that this is expressed in terms that are commonly used in decisions of the present kind would not lead to such reasoning being fairly characterised as formulaic if the issue was only about availability of services in the United Kingdom. It would simply reflect the application of the same reasoning to an issue that is common to many cases. 53 However, what the form of reasoning does expose is the fact that it does not engage with the nature of the representation which is not to the effect that there will be a lack of services available in the United Kingdom, but rather that, in the opinion of Dr Brann, isolation from family would give rise to a grave risk of self-harm on the part of Mr Dunn. 54 The Minister's decision is made personally. For reasons already expressed, where there is a significantly and clearly expressed representation as to matters that may bear upon the state of satisfaction to be formed, the Minister must understand the facts and contentions advanced and know what they say. In the present case, a significant and clearly expressed representation was not captured in the reasons by which the Minister was briefed and therefore was not a matter known to the Minister when the decision was made. 55 If it were to be assumed, contrary to the finding I have made, that the content of the opinion of Dr Brann was known to the Minister then it would be necessary to evaluate whether the form in which the reasons are expressed shows the requisite active intellectual process. For reasons I have given, in undertaking that assessment it would be necessary to bear in mind that it is a matter for the Minister to determine the emphasis, importance or significance to be attributed to a particular matter. Therefore, a different kind of question would arise for consideration in such a case.

Conclusion 56 In all the circumstances, a substantial and clearly articulated matter that may bear upon the formation of the required state of satisfaction was not considered by the Minister. It was not considered because the reasons, which on the evidence were the means by which the Minister was briefed (and therefore the extent of what he knew when making the decision), failed to capture the nature of the matter advanced in the representations. 57 It follows that the decision of the Minister should be set aside and the matter remitted for determination according to law. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.