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

The legislative scheme 14 The applicant's visa was cancelled under s 501(3A) of the Act. That provision requires the Minister to cancel a visa if the Minister is satisfied that the visa holder does not pass the character test because, relevantly, the visa holder has been sentenced to a term of imprisonment of 12 months or more, and is serving a sentence of imprisonment on a full time basis in a custodial institution. 15 The delegate's decision not to revoke the cancellation decision was made under s 501CA(4) of the Act, which provides: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 16 The applicant's application to the Tribunal for review was made pursuant to s 500(1)(ba) of the Act. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) empowers the Tribunal to affirm or vary the decision under review, or set it aside and substitute another decision, or remit the matter for reconsideration. Section 43(2) requires the Tribunal to give reasons for its decision. Under s 43(2B), where the Tribunal gives its reasons in writing, the reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. 17 The Federal Court of Australia has jurisdiction to review the Tribunal's decision under s 476A(1) of the Act.

The application for judicial review 18 The applicant's Amended Originating Application contains a single ground, although it is expressed in separate paragraphs: 1. In considering the applicant's mental health, the report by psychologist Dr Emily Kwok states the applicant's ability to cope with common life stressors remains poor. The report observes the applicant would have a weakened support system in New Zealand. 2. The Tribunal did not give proper, genuine and realistic consideration to the representations of the applicant's mental health outcome if he is removed to New Zealand. It thereby fell into jurisdictional error. 3. The error by the Tribunal was material. Particulars 1. The Applicant is found by Dr Emily Kwok to be vulnerable to mental health disorder. His mental health history includes thoughts of suicide. 2. In this context, Dr Kwok observes the Applicant's ability to cope with common life stressors remains poor. And, that the Applicant experiences stress out of proportion to the severity of the cause of that stress. 3. Dr Kwok considers the greatest impact on the Applicant, if removed from Australia, will be separation from his partner and step daughter. Dr Kwok notes this is his main support system. 4. These claims were central to the Applicant's argument that there is another reason why the cancellation should be revoked. 5. The Tribunal has not given due consideration to: a. The vulnerability of the Applicant; b. The loss of the Applicant's main support system, if removed from Australia; c. The Applicant's likely experiences of stress, beyond that, and out of proportion to, the loss of his main support system.

Consideration 19 The applicant submits that he clearly raised a claim that a reason for revoking the cancellation decision was that removing him to New Zealand and separating him from his family would adversely affect his mental health. He submits that the Tribunal concluded that it was unable to consider the applicant's claim of detriment to his mental health because the Tribunal misconstrued Direction 90 as precluding decision-makers from taking into account any matters which the Direction does not expressly require to be taken into account. He submits, in the alternative, that the Tribunal overlooked that matter. The alleged jurisdictional error is expressed as a failure to give proper, genuine and realistic consideration to the claim raised by the applicant. 20 The Minister submits that there was no submission squarely made before the Tribunal that the potential deterioration of the applicant's mental health was a reason to revoke the cancellation decision. The Minster submits that, in any event, the Tribunal actively engaged with the applicant's mental health and the applicant's claim that he would have a weakened support system if he were removed to New Zealand. The Minister also submits that even if the Tribunal did err in the way contended by the applicant, the error was not material. 21 Section 499(1) of the Act allows the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Direction 90 was given by the Minister under s 499(1) of the Act. Section 499(2A) requires a person or body to, "comply with a direction under subsection (1)". In carrying out its function of reviewing the delegate's decision, the Tribunal was required to comply with Direction 90. 22 Paragraph 6 of Direction 90 provides, relevantly, that a decision-maker must take into account the considerations identified in paras 8 and 9, where relevant to the decision. 23 Paragraph 7(2) of Direction 90 provides that primary considerations should generally be given greater weight than the "other considerations". 24 Paragraph 8 states that the following are primary considerations: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interests of minor children in Australia; (4) expectations of the Australian community. 25 Paragraph 8 goes on to explain the primary considerations and specify matters that decision-makers should or must consider. 26 Paragraph 9(1) then provides: 9. Other considerations (1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to): a) international non-refoulement obligations; b) extent of impediments if removed; c) impact on victims; d) links to the Australian community, including: i) strength, nature and duration of ties to Australia; ii) impact on Australian business interests. 27 It may be observed that para 9(1) provides that the "other considerations" that must be taken into account, where relevant, are not limited to the four stipulated considerations. 28 Paragraph 9 goes on to explain each of the four stipulated considerations and to specify matters that decision-makers should consider. 29 The Tribunal's reasons generally followed the structure of Direction 90. After assessing the primary considerations, the Tribunal stated at [91]: It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d). 30 After concluding that international non-refoulement obligations were not relevant, the Tribunal turned to consider, "extent of impediments if removed", under para 9.2(1) of Direction 90. That paragraph provides: 9.2 Extent of impediments if removed (1) Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: a) the non-citizen's age and health; b) whether there are substantial language or cultural barriers; and c) any social, medical and/or economic support available to them in that country. 31 In the course of considering para 9.2(1), the Tribunal found at [94]: The Applicant is a 24 year old man who is able bodied. He was born with eczema and minor asthma. In relation to his mental health, Dr Kwok opined that during his period of unemployment between February and September 2020 he may have experienced psychological symptoms that met the criteria of Adjustment Disorder but she did not have sufficient information to confirm this diagnosis. She noted that this resulted in the development of alcohol use disorder and substance use disorder but she does not appear to have made a formal diagnosis about those either. I accept that the Applicant is vulnerable regarding his mental health and that he needs further rehabilitation and support in relation to substance abuse. (Footnotes omitted.) 32 The Tribunal continued at [97]: While it is not known whether or not Ms C and Child A would relocate to New Zealand if the Applicant were deported, for the purposes of this Other Consideration, I will assume the worst case scenario for the Applicant. I accept that permanent separation from Ms C and Child A would cause emotional hardship to the Applicant and this would likely affect his mental health. According to Dr Kwok, Ms C and Child A are the Applicant's main support system and, as he has not received psychological treatment yet, his ability to cope with common life stressors remains poor. She opined that the Applicant would likely have more difficulty reintegrating into the community in New Zealand than he would in Australia due to the absence of physical support from his partner. She considers that the mental health system in New Zealand is comparable to that of Australia and the Applicant would likely be able to access treatment in New Zealand. (Footnote omitted; emphasis added.) 33 The Tribunal concluded at [102]: This Other Consideration does not require me to take into account hardship that the Applicant may experience in New Zealand per se. It requires me to consider the extent of any "impediments to the Applicant establishing himself and maintaining basic living standards" in New Zealand. None of the matters raised by the Applicant are of the kind that would tend to prevent him from obtaining accommodation, securing employment, financial support and sustenance, or accessing services. However, I accept that deterioration of his mental health and separation from Ms C and Child A could result in him having some initial difficulty establishing himself. 34 The Tribunal went on to find at [103] that "limited weight" should be allocated to the matters favouring revocation under para 9.2(1) of Direction 90. 35 In a statutory declaration provided to the Tribunal, the applicant had claimed that, "I would be depressed and sad if I had to return to New Zealand". He also claimed that, "I can't even begin to imagine living a life away from my family … I simply could not survive". In the course of the hearing, the Tribunal member asked the applicant what he meant by "not survive", and then drew from the applicant that he meant that he would suffer mentally. That evidence apparently informed the Tribunal's finding at [97] that the applicant's assumed permanent separation from his partner and step-daughter "would likely affect" his mental health. 36 The applicant argues that the Tribunal did not go on to consider whether and to what extent the likely effect on his mental health weighed in favour of revoking the cancellation decision. This part of the applicant's argument should be accepted. The Tribunal found at [102] that it was not required under para 9.2 of Direction 90, "to take into account hardship that the Applicant may experience in New Zealand per se". The Tribunal found that the likely effect on the applicant's mental health was only relevant under para 9.2 to, "impediments to the Applicant establishing himself and maintaining basic living standards", in New Zealand. The Tribunal did not go on to consider whether, outside the confines of para 9.2, the effect on the applicant's mental health was of itself "another reason" (or formed part of "another reason") for revoking the cancellation decision. 37 The applicant submits that the Tribunal did not consider the likely hardship to the applicant because it misinterpreted Direction 90 as precluding it from taking into account any "other considerations" apart from those stipulated in para 9(1). 38 In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497, the plurality observed at [22] that s 501CA(4) of the Act, "confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is "another reason" why that decision should be revoked". That discretion cannot be fettered by any direction given by the Minister under s 499(1) of the Act: Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23 at [36]; FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [63]-[64]. Direction 90 does not purport to do so. Paragraph 5.1(4) describes the purpose of the Direction as being to "guide decision-makers", and para 9(1) expressly indicates that the "other considerations" that must be taken into account, where relevant, include, but are not limited to, the four considerations stipulated in that paragraph. 39 Accordingly, if the Tribunal interpreted Direction 90 as precluding it from taking into account any "other considerations" apart from those stipulated in para 9(1), that would be an error. The applicant submits the Tribunal's misinterpretation is demonstrated by [91] and [102] of the Tribunal's reasons and by its failure to specifically state that Direction 90 does not limit the matters that may be considered. 40 The Tribunal stated at [91], "I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d)". That passage indicates no more than that the Tribunal intended to consider the stipulated matters. Paragraph [102] deals only with the specific requirements of para 9.2(1). The Tribunal's failure to specifically acknowledge that para 9(1) states that, "these considerations include (but are not limited to)", the four stipulated considerations provides no indication that the Tribunal construed Direction 90 as limiting the considerations that may be taken into account. The Tribunal's reasons do not demonstrate that the Tribunal misconstrued para 9(1) of Direction 90 as restricting the Tribunal to considering the matters expressly stated in that paragraph. The applicant's submission to the contrary must be rejected. 41 However, that is not the end of the applicant's argument. It is necessary to consider his alternative submission that the Tribunal overlooked consideration of the applicant's claim that permanent separation from his partner and step-daughter would affect his mental health, reflected in the Tribunal's finding that his mental health was likely to be affected. 42 In Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088, Gummow and Callinan JJ (with whom Hayne J agreed) held at [24] that, "to fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord [the applicant] natural justice": see also Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [90]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [13]. 43 In Plaintiff M1/2021, the plurality held: 24 Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder. ... 26 Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40; see also 30, 71], "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker. 27 None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error. (Footnotes omitted.) 44 A failure by the Tribunal to deal with a claim in its reasons may lead to an inference that it failed to consider the claim. Such an inference should not be drawn too readily where the reasons are otherwise comprehensive and the issue has at least been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]. A conclusion that a decision maker has not engaged in an active intellectual process in respect of an argument will not be lightly made: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 at [47]. 45 The Tribunal accepted the applicant's claim that it was likely that his mental health would be affected by his separation from his family, but found that such hardship could not of itself be taken into account under para 9.2. It would naturally be expected that the Tribunal would then go on to discuss whether that likely hardship (of itself) was, or formed part of, "another reason" for revoking the cancellation decision, but the Tribunal did not do so. The Tribunal cannot reasonably have disregarded the effect of removal on the applicant's mental health as irrelevant or trivial. Further, the Tribunal cannot have treated the effect of removal on the applicant's mental health as subsumed into its consideration of other matters since the Tribunal expressly found it was not able to consider that matter of itself under para 9.2 of the Direction. In my opinion, the inference to be drawn is that the Tribunal overlooked consideration of whether the applicant's claim that his mental health would suffer if he were removed to New Zealand was, or formed part of, "another reason" for revoking the cancellation decision. 46 In any case where revocation of a decision to cancel a visa is sought, the former visa holder will almost inevitably claim that they will be caused hardships of various kinds by their removal from Australia. Under Ministerial Direction 41, decision-makers exercising powers under s 501 of the Act to refuse or cancel a visa, were expressly required to take into account the hardship likely to be experienced by the person. Since then, the Ministerial Directions have only expressly required that hardship to the person be taken into account in the limited ways provided for under, for example, para 9.2 of Direction 90. The practice that seems to have developed is for the Tribunal to structure its reasons by methodically working through the primary considerations and other considerations specified in Direction 90, then giving an overall assessment of the weight to be ascribed to each of those considerations, and then reaching a conclusion. That method creates a danger that claims of hardship which do not fall squarely within the specified considerations will be overlooked. That is what seems to have happened in the present case. 47 There are various labels that can be given to the Tribunal's error, including failure to respond to a substantial, clearly articulated argument relying upon established facts, or failure to give proper, genuine and realistic consideration to a claim raised by the applicant. What is plain is that the Tribunal, having discussed the issue of the effect of the applicant's removal upon his mental health, overlooked consideration of whether that matter might of itself affect its decision. 48 In SZMTA, Bell, Gageler and Keane JJ held at [45]: A breach is material to a decision only if compliance could realistically have resulted in a different decision. 49 Whether the decision made could have been different had the Tribunal considered the applicant's likely hardship if removed to New Zealand is, "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined": see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [38]. The standard of "reasonable conjecture" is "undemanding": Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 at [33]. 50 The personal hardship that an applicant claims will result from removal to another country can generally be regarded as a matter likely to be of some significance to a decision-maker. The Tribunal made a specific finding that the applicant's removal to New Zealand and separation from his partner and step-daughter would likely cause him emotional hardship and affect his mental health. That cannot reasonably be regarded as a matter that was trivial or insignificant. If the Tribunal had taken into account the hardship that it found was likely, there is a realistic possibility that a different decision might have resulted. 51 The Tribunal's decision must be set aside and the matter remitted to the Tribunal to decide according to law. 52 The Minister must pay the applicant's costs of the application. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.