Ferreira v Minister for Home Affairs

Federal Court of Australia|2019-10-10|Before: Mr P, Markovic J

The amended originating application for review of a migration decision filed on 22 July 2019 is dismissed.
The applicant pay the costs of the first respondent as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 On 7 November 2018 the applicant lodged an originating application including an application for an extension of time under s 477A(2) of the Migration Act 1958 (Cth) (Act) to bring an application under s 476A(1) of the Act. The applicant seeks to challenge the decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to exercise the discretion in s 501CA(4) to reinstate his visa which had been cancelled by operation of s 501(3A) of the Act.

The tribunal decision 10 The Tribunal found that the applicant failed the character test by reason of the operation of s 501(6)(a) and s 501(7)(c) of the Act. The applicant does not dispute this finding. 11 The Tribunal then considered whether there was "another reason" why the decision to cancel the Visa should be revoked. It did so by reference to the guidelines set out in Pt C of Ministerial Direction No. 65 "Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501(CA)" made under s 499 of the Act (Direction 65). 12 The Tribunal first considered the three "primary considerations" referred to in Direction 65, namely protection of the Australian community, best interests of minor children in Australia affected by the decision and expectations of the Australian community. In relation to each of these the Tribunal found that: (1) considerations concerning protection of the Australian community from criminal or other serious conduct weighed significantly against the applicant. The Tribunal found that it was impossible to conclude anything other than that the applicant is a repeat offender, that he will continue to offend and that in doing so he will put other people at risk: at [43]-[46]; (2) it was unable to give significant weight to the best interests of the minor children in Australia affected by the decision, although it did not make a negative assessment of that factor. The Tribunal noted that the applicant's minor son was close to turning 18 years of age and that it could not find that the applicant makes a positive contribution to the lives of the minor children who, in addition to his son, are his three step-children and two nephews: at [47] and [52]-[53]; and (3) the expectations of the Australian community weighed heavily against revoking the Cancellation Decision. The Tribunal noted that, on the one hand, there may be considerable sympathy for the applicant on the basis of the tragic elements in his life but, on the other hand, it would not be unreasonable to expect that the Australian community would have little or perhaps no sympathy for a person whose criminal record is as extensive as that of the applicant's and who has received an exceptional number of second chances: at [55]-[57]. 13 The Tribunal then considered the "other considerations" set out in cl 14 of Direction 65. In relation to the applicant, they were, relevantly, the strength, nature and duration of his ties to Australia and the extent of impediments if removed. 14 The Tribunal found that the applicant's ties to Australia were significant given that he had arrived in Australia as a small child, had not left the country since that time and all of his family were in Australia. The Tribunal noted that, while there would no doubt be an impact on the applicant's family should he be removed, it was hard to assess exactly what or how profound this would be and there was no evidence that anybody other than immediate family members would be impacted: at [64] and [69]. 15 The Tribunal found the issue of impediments to the applicant if he was removed to be "far more problematic". The Tribunal noted that the applicant has no connections with Portugal, does not speak the language and has "no knowledge of the culture, history, mores or employment conditions/opportunities" there and that his return to Portugal would significantly impact his life. At [72]-[78] of its decision record the Tribunal expressly considered the two particular factors relevant to the applicant, namely his health and drug addiction, as follows: 72. First of all there must be some consideration of the impact on his physical and mental health. Mr Ferreira claims that apart from the brain injury suffered as a result of the motor accident in 1997 he suffers from bi-polar disorder, schizophrenia and heroin addiction. In addition he reports suffering from epilepsy and depression. There is no clear diagnostic support for many of these assertions, although there is equally no reason not to believe that they are manifest in Mr Ferreira. He has been on Avanza to treat his depression, apparently for some 10-15 years and there are numerous references to his mental health issues in medical records tendered to the Tribunal covering some 128 pages. These records include reference to untreated epilepsy and there is at least one neurological report to support this. 73. There is no doubt that Mr Ferreira suffers from a range of primarily psychiatric and mental health issues. 74. Similarly there is evidence that he was both a heroine user and that he has been a long-time participant in the methadone programme. 75. The Respondent asserts that the health system in Portugal is perfectly adequate to provide care and treatment for Mr Ferreira and there is no doubting its quality and professionalism. Of course this is compromised by Mr Ferreira's inability to speak Portuguese and the lack of a Portuguese equivalent of a universal guarantee of cost-free health care. 76. On the other hand the Respondent is at pains to point out the intelligent and progressive approach to drug problems adopted in Portugal with its decriminalisation of personal drug use in 2001 and its approach to drug problems as matters for medical rather than judicial attention. The Tribunal notes that the Respondent urged upon it giving credit for drug control and rehabilitation policies which it (in the persona of the Australian government) is not itself prepared to follow. 77. The Tribunal agrees that for people with a persistent drug problem being in Portugal may well be a better option than being in Australia. 78. The Respondent's assertions as to the level of the use of the English language in Portugal and the employment opportunities for an essentially unskilled worker who speaks no Portuguese are frankly too risible to be taken seriously. (footnotes omitted.) 16 At [86] of its decision record the Tribunal concluded that the "other considerations" which are relevant "must weigh in [the applicant's] favour", and that his ties to Australia would do so "with only marginal favourability" while impediments if the applicant were removed would do so "with significant weight". 17 The Tribunal then came to balance the various factors and concluded that the circumstances were in favour of not revoking the Cancellation Decision. The Tribunal noted that the factor which weighed most heavily with it and which was ultimately determinative was the expectation of the Australian community that "when a person is given a second, third and even a fourth chance; that when they fail to take the benefit of three formal warnings and the highly unusual benefit of a visa cancellation revocation they cannot expect that there will never come a point at which it must be said that forgiveness is exhausted and further chances have run out". The Tribunal concluded at [91] of its decision record that in the applicant's case it believed that the "limit of tolerance has now been not only reached but exceeded" and that there was "no adequate justification for yet another chance".

extension of time application 18 As noted at [1] above the applicant requires an extension of time. He sought that order in his originating application for review of a migration decision lodged with the Court on 7 November 2018, which was approximately nine weeks outside the 35-day time limit mandated by s 477A(1) of the Act. That application was not accompanied by a draft originating application setting out the applicant's proposed grounds of review or any explanation for the delay in commencing the proceeding. However upon the applicant engaging his current solicitor, those deficiencies were remedied. The applicant provided a document titled "amended originating application for review of migration decision" (Amended Application) which set out three proposed grounds of review. The applicant's solicitor, Adrian Joel, swore an affidavit on 2 July 2019 to which he annexed a draft affidavit, which Mr Joel explained had not yet been sworn or affirmed by the applicant because the applicant could not locate a justice of the peace in the detention centre. The applicant's draft affidavit provided an explanation for the delay in filing. The Minister did not oppose the grant of an extension of time. 19 The principles relevant to the grant of an extension of time are well established. The Court has a discretion to make an order extending time where it is satisfied that it is necessary in the interests of the administration of justice to do so. In considering whether to exercise the discretion, relevant considerations include the applicant's reasons for delay and whether the application, if an extension of time was granted, would have any prospects of success. In relation to the latter, "the proposed grounds of judicial review should be considered on their face and examined at a 'reasonably impressionistic level'; the Court should not descend into a fuller consideration of the arguments for and against each ground": Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26]-[27]. Any prejudice occasioned to the respondent by reason of the delay is also a relevant consideration: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. 20 I was satisfied that I should grant the extension of time sought by the applicant and made an order accordingly at the commencement of the hearing. I also gave the applicant leave to file the Amended Application. Although the period of delay in commencing the proceeding was not insignificant, it had been adequately explained, the Minister did not assert that he suffered any relevant prejudice by reason of the delay and, at the impressionistic level of examination required, the grounds raised in the Amended Application, which I address in further detail below, could not be said to be without merit such that they would not have any prospects of success.

statutory framework 21 The Visa was cancelled under s 501(3A) of the Act which provides that the Minster must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of, relevantly, s 501(6)(a) on the basis of s 501(7)(c) of the Act and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a state or a territory. 22 Subsections 501(6)(a) and 501(7)(c) of the Act provide: (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or … (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or … 23 Section 501CA of the Act applies if the Minister makes a decision, referred to as the original decision, under s 501(3A) to cancel a visa. Subsections 501CA(3) and (4) provide that: (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (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.

Amended application 24 The applicant raises three grounds in the Amended Application, which I address below.

Grounds 1 and 2 25 Grounds 1 and 2 were the subject of a formal submission by the applicant. In those grounds the applicant "formally submits" that the decisions in Steve v Minister for Immigration and Border Protection [2018] FCA 311 (Steve) and Azar v Minister for Immigration and Border Protection [2018] FCA 1175 (Azar), insofar as they are contrary to the matters asserted in the applicant's grounds, are wrong. However, he goes on to say that he does not submit that the decisions are plainly wrong such that they need not be followed by this Court. In those circumstances, as the applicant accepts, grounds 1 and 2 cannot succeed and I do not propose to give them any detailed consideration. However, for completeness I set out the relevant grounds and the Minister's submissions in response to them. In those grounds the applicant contends that: 1. The Tribunal made a jurisdictional error by not having regard to Art 12(4) of the International Covenant of Civil and Political Rights (ICCPR). Particulars a. The Applicant attracted Art 12(4) of the International Covenant of Civil and Political Rights (ICCPR) and, purely as a matter of international human rights law, the refusal to revoke the cancellation of the Applicant's visa was contrary to that Article (Nystrom v Australia, Communication No. 1557/2007, U.N. Doc. CCPR/C/102/D/1557/2007 (2011); Jama Warsame v. Canada, Communication No. 1959/2010, U.N. Doc. CCPR/C/102/D/1959/2010 (2011)); b. Art 12(4) of the ICCPR was an "international non-refoulement obligation" within the meaning of cl 14 of Direction No 65 or was otherwise a mandatory relevant consideration under cl 14 of Direction No 65 or the statutory scheme; c. It is formally submitted that, in holding otherwise, Steve v Minister for Immigration and Border Protection [2018] FCA 311 was wrongly decided, although the Applicant does not submit that the decisions was plainly wrong such that it need not be followed by this Honourable Court; d. It is a matter for the Minister to indicate whether the above ground is rendered moot by the replacement of Direction No 65 with Direction No 79. 2. The Tribunal made a jurisdictional error as s 501CA of the Migration Act 1958 (Cth) did not apply to the Applicant as the Applicant was not a "person" within the meaning of that provision. Particulars a. The Applicant attracted Art 12(4) of the International Covenant of Civil and Political Rights (ICCPR) and, purely as a matter of international human rights law, the refusal to revoke the cancellation of the Applicant's visa was contrary to that Article (Nystrom v Australia, Communication No. 1557/2007, U.N. Doc. CCPR/C/102/D/1557/2007 (2011); Jama Warsame v. Canada, Communication No. 1959/2010, U.N. Doc. CCPR/C/102/D/1959/2010 (2011)); b. Art 12(4) of the ICCPR, solely as a provision of international human rights law, attracted the approach to statutory interpretation known as the principle of legality: Director of Public Prosecutions v Kaba [2014] VSC 52; (2014) 44 VR 526 at [181]; c. In the alternative, Art 12(4) of the ICCPR should be the basis for an expansion of the common law right of a citizen to exit, enter and reside in Australia to encompass an alien for whom Australian is "his own country" within the meaning of Art 12(4) of the ICCPR: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42, with the common law right then attracting the principle of legality; d. Under the principle of legality, the reference in s 501CA of the Act to a "person" ought not extend to a person who attracts Art 12(4) of the ICCPR, whether as a matter of international human rights law alone or as part of an amplified common law right, because there is not "irresistible clearness" under the Act of an intention to embrace such a person in violation of their right: Potter v Minahan (1908) 7 CLR 277 at 305 e. It is formally submitted that, in holding otherwise, Steve v Minister for Immigration and Border Protection [2018] FCA 311 and Azar v Minister for Immigration and Border Protection [2018] FCA 1175; 261 FCR 1 were wrongly decided, although the Applicant does not submit that those decisions were plainly wrong such that they need not be followed by this Honourable Court. 26 The Minister submitted that, because the applicant conceded that the decisions in Steve and Azar are not plainly wrong, the Court should follow those decisions. In relation to ground 2 the Minister additionally submitted that in order to obtain any useful relief the applicant would also have to establish that he is not a person in respect of whom s 501(3A) is capable of operation and thus he would have to establish not only that the power to revoke the cancellation cannot be exercised in respect of him (under s 501(3A) of the Act), but also that his Visa was not lawfully cancelled.

Ground 3 27 The focus of the parties' submissions before me was in relation to ground 3, by which the applicant contends that: The Tribunal made a jurisdictional error of want of proper, genuine and realistic consideration or legal unreasonableness by failing properly to ascertain and weigh that the Applicant would not receive mental health care in Portugal.

Applicant's submissions 28 The applicant's case turns on [72]-[78] of the Tribunal's decision record (see [15] above) where the Tribunal considered the issue of impediments to the applicant if removed from Australia, in particular by reference to psychiatric and mental health care. The applicant submitted that in doing so, the Tribunal failed to give proper, genuine and realistic consideration to his case or, in the alternative, it made a finding which was legally unreasonable in that it lacked an evident and intelligible justification. 29 The applicant noted that at [73] of its decision record the Tribunal made a finding that he suffers from mental health issues and that at [74] of its decision record it made a separate finding that he was a heroin user and a long-time participant in a methadone program, a dichotomy which the applicant described as "highly significant". That is, the applicant submitted that on the Tribunal's own findings it distinguished between the applicant's mental health problems and his drug use. 30 The applicant observed that at [75] of its decision record the Tribunal referred to the Minister's assertion that the Portuguese health system is "perfectly adequate to provide care and treatment for [the applicant] and that there is no doubting its quality and professionalism" but went on to say that this was compromised by the applicant's inability to speak Portuguese and the "lack of a Portuguese equivalent of a universal guarantee of cost-free health care". The applicant submitted that this was a finding that there was no guaranteed healthcare for persons without means. 31 The applicant noted that at [76]-[77] of its decision record the Tribunal addressed the approach taken in Portugal to drug issues, such that they are matters for medical rather than legal attention, and concluded that for people with a persistent drug problem it may be better to be in Portugal than in Australia. 32 Finally, the applicant observed that at [78] of its decision record the Tribunal rejected another assertion made by the Minister about the level of English use in Portugal and the employment opportunities for an unskilled worker in Portugal who speaks no Portuguese. The applicant submitted that there was no other finding by the Tribunal that he would otherwise have means for accessing healthcare. 33 The applicant submitted that the findings of the Tribunal were, in summary, that he has mental health problems requiring the attention of the healthcare system, there are no evident employment opportunities for him and no other indicators of his means with the result that he is not in a position to obtain treatment in Portugal for his mental health problems. 34 The applicant conceded that he could not say that the Tribunal did not consider the issue of impediments should he be removed as required by Direction 65. However, he submitted that the Tribunal failed to engage in an active intellectual process with respect to impediments, and in particular his mental healthcare in Portugal. He contended that while he may benefit from decrimalisation in relation to his personal drug use, on the Tribunal's own findings he is in no position to receive any treatment for his mental health problems, he has no realistic prospect of employment and there is no universal healthcare in Portugal. The applicant submitted that the Tribunal had not properly dealt with the significance of an effective absence of mental healthcare in reaching his view on the weight to be accorded to the impediments which he would face upon return to Portugal. 35 The applicant also submitted that the Tribunal's finding at [86] of it decision record where it attributed "significant weight" to the impediments he would face should he be removed lacked an evident and intelligible justification given the Tribunal's own findings that the applicant would essentially be left with no mental healthcare. The applicant submitted that the only approach for which there would be sufficient justification would be to attribute at least substantial weight to that consideration. The applicant said that in according significant weight the Tribunal had not grasped the full implications of its findings of fact on the issue. 36 The applicant submitted that, where he alleged error with respect to the Tribunal's treatment of one of the "other considerations" in Direction 65, it was open to the Tribunal in an appropriate case to permit "other considerations" to outweigh "primary considerations", relying on Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [44].

Consideration 37 In my opinion ground 3 is not made out. The applicant has failed to establish any jurisdictional error in the reasons of the Tribunal in considering the impediments to him if removed from Australia. My reasons follow. 38 The first basis upon which the applicant alleges that the Tribunal made a jurisdictional error is because the Tribunal failed to give proper, genuine and realistic consideration to his need for and ability to access mental healthcare in Portugal as part of the consideration of the impediments he would face if returned to Portugal. 39 In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45] a Full Court of this Court said the following about the requirement to give proper, genuine and realistic consideration to a claim: Subsequent cases have endorsed the principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision-maker must engage in an active intellectual process directed at that claim or criteria (Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [47]-[54] per Lindgren, Rares and Foster JJ; SZVVR v Minister for Immigration and Border Protection (2016) 71 AAR 11at [24]-[26] per Collier J; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2017) 344 ALR 511 (Telstra v ACCC) at [62] and [71] per Foster J; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 (Khadgi) at [57] per Stone, Foster and Nicholas JJ; AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10]-[11] per Bromberg J). This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]). 40 As can be seen from the Tribunal's reasons (see [15] above), in considering the impediments to the applicant if he was to be removed to Portugal it accepted that the applicant suffers from mental health issues; found that the applicant may not be able to access cost-free healthcare; and found that the applicant would have low prospects of obtaining work in Portugal. That is, having found that the applicant had mental health issues, it identified and made an assessment of the difficulties that the applicant would face in obtaining healthcare in Portugal. The Tribunal then concluded at [86] of its reasons that it would attribute significant weight to the impediments that the applicant would face if removed. 41 The applicant takes issue with the attribution by the Tribunal, based on its findings, of "significant" as opposed to "substantial" weight to the impediments. It is difficult to discern much, if any, difference in the meaning of those two adjectives. Both emphasise the importance or considerable weight to be given to the issue. But, putting that to one side, in my opinion it is clear that the Tribunal gave proper consideration to the issue of impediments to the applicant should he be removed to Portugal. 42 It is not the case that the Tribunal failed to give "proper, genuine and realistic consideration" to the mental healthcare that the applicant would receive upon return to Portugal. As is evident from the Tribunal's reasons as set out at [15] above, it did not fail to consider the issue nor was the nature of its consideration such that it could be said that the Tribunal failed to engage in an active intellectual process. 43 I turn then to the issue of whether the Tribunal's conclusion at [86] of its decision record, where it gave "significant weight" to the issue of impediments to the applicant, was unreasonable in the sense that it lacked an evident and intelligible justification. 44 In Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30 at [10] Kiefel CJ said: In the joint judgment in [Minister for Immigration and Citizenship v Li] it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case. (footnotes omitted.) 45 To like effect at [82] Nettle and Gordon JJ said: Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused - where, for instance, there is no "evident and intelligible justification" for the decision. As Gageler J explained in Li, "[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'". (footnotes omitted.) 46 Here the applicant contends that, because of the Tribunal's findings about the applicant's need for healthcare, the nature of the healthcare system in Portugal and that he would, because he was without means, be left without healthcare, the finding at [86] lacked an evident and intelligible justification. But the Tribunal's finding at [86] was not that the relevant consideration, the impediment to the applicant should he be removed, carried no or little weight. Its finding was that it carried significant weight. In other words it was a finding in favour of the applicant. The reasoning process undertaken by the Tribunal to reach the conclusion at [86] could not be said to be unreasonable. The Tribunal considered the facts before it and made findings which were open to it. The conclusion at [86] was based on the facts as found by the Tribunal. It did not lack an evident and intelligible justification nor was it a conclusion that no reasonable person could have arrived at or one that would not fall within the range of possible and acceptable outcomes. 47 It is the Tribunal's conclusion that significant weight be allocated to this consideration with which the applicant cavils. He contended that if there was an intelligible justification, more than significant weight may have been attributed to the consideration. That submission takes the matter no further. As I have already observed the Tribunal's finding at [86] did not lack an evident and intelligible justification. 48 For completeness I also note that the Tribunal's final conclusion, after weighing the primary and other considerations, could not be said to lack an evident and intelligible justification. The Tribunal, albeit noting that "reasonable minds may differ", found that the most significant factor was the Australian community's expectation that a person who has been given a number of opportunities, but who does not take up the benefit of those opportunities, must ultimately suffer a consequence. The Minister submitted that the issue on which "reasonable minds may differ" was whether the impediment to the applicant's removal which the Tribunal considered was of significant weight might outweigh the other considerations. However this Tribunal came to a different conclusion on the ultimate balancing exercise it undertook. I accept the Minister's submission that no legal error is disclosed in that conclusion. It did not lack an evident and intelligible justification given the applicant's visa history and his continued offending despite the chances he had been given. Nor was it a conclusion to which no reasonable person could have arrived. It was a conclusion open on the material before the Tribunal notwithstanding that it accepted that a different Tribunal may have come to a different conclusion.

conclusion 49 For those reasons the Amended Application should be dismissed. As the applicant has been unsuccessful he should pay the Minister's costs as agreed or taxed. I will make orders accordingly. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Migration Act 1958(Cth)ss 476A(1), 477A(2), 501(3A), 501(6)(a), 501(7)(c), 501CA(4)

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