Consideration
19 Turning to the applicant's first ground of legal unreasonableness, in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, the Full Court identified at [45] the relevant question as, "whether a decision-maker could reasonably come to the conclusion reached". The Full Court held that, "if the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable".
20 The applicant argued that even though the Tribunal may have taken into account the factors that he had relied upon as favouring cancellation of the revocation decision, the Tribunal, "did not take them into full account". That seems to be an argument that the Tribunal's decision was legally unreasonable because it failed to give adequate weight to the matters in favour of revocation of the cancellation decision. It is true that reasonable minds might have differed as to the relative weight to be given to the factors favouring and opposing revocation. However, it was not unreasonable for the Tribunal to give greater weight to factors opposing revocation, such as protection of the Australian community and expectations of the Australian community.
21 The Tribunal provided an evident and intelligible justification for the conclusion it reached. Having examined the material before it, the Tribunal concluded that the risk to the Australian community and the expectations of the Australian community outweighed countervailing factors such as the best interests of minor children and hardship to the applicant and his family. That conclusion was reasonably and rationally available on the material before the Tribunal. The first ground must be rejected.
22 As to the applicant's second ground, it is apparent that the Tribunal considered the applicant's evidence and the submissions he made orally and in writing. In numerous passages of its reasons, the Tribunal expressly referred to the applicant's oral evidence and to the factors he relied upon as providing a reason for revocation of the cancellation decision. The applicant has not identified any matters or submissions that the Tribunal failed to consider. There is nothing to suggest that the Tribunal failed to give proper, genuine and realistic consideration to any significant and clearly expressed matters raised by the applicant. The second ground must also be rejected.
23 The applicant's written submissions assert that the Tribunal did not take into consideration his mental and physical health at the time of the hearing. The applicant also asserts that the Tribunal did not take into account a psychological report prepared in 2015 he had provided to the Tribunal.
24 The Tribunal expressly referred to and took into account the medical conditions identified by the applicant, including his psychological or psychiatric condition involving anxiety and depression, DVT and knee and back injuries. The Tribunal also expressly referred to the applicant's claim that he had ongoing pain and reduced ability. It took into account that the applicant had been administered with medications that made him feel nauseous and affected his motivation and gave him decreased energy levels. The applicant's submission that the Tribunal did not take into account his mental and physical health at the time of the hearing cannot be accepted.
25 The Tribunal did not expressly refer to the 2015 psychological report. However, the Tribunal discussed the applicant's psychological state. There was no information of such significance in that report that the report could naturally be expected to be the subject of express reference in the reasons if it had been considered. It cannot be inferred that the Tribunal overlooked the report. In any event, it cannot be concluded that the report could realistically have made a difference to the outcome.
26 The applicant appears to allege that he was denied procedural fairness in that he was deprived of a meaningful opportunity to present his case. He asserts that the medication he was taking for DVT carried side-effects of fatigue, nausea and headaches, which affected his ability to represent himself. He states that he "broke down" during the hearing, which demonstrated that he was unable to properly present his case.
27 In BJB16 v Minister for Immigration and Border Protection (2018) 260 FCR 116; FCAFC 49; the Full Court observed at [43]:
Applicants who assert that their psychological condition deprived them of the "meaningful opportunity" required by s 425 of the Migration Act must establish more than the fact of the condition. They must also establish that their condition is such as to deny them the capacity to give an account of their experiences, to present argument in support of their claims, and to understand and respond to the questions put to them… Further, even when psychological evidence may, had it been available to the Tribunal, have led it to take a different view of the credibility of an applicant's account, the absence of that evidence does not, of itself, establish that the hearing before the Tribunal proceeded on a false assumption about the applicant's ability to give evidence and to present arguments relating to the issues arising in relation to the decision under review… Generally, it is insufficient for applicants to show no more than that a medical condition may have deprived them of the ability to put their case to best advantage.
(Citations omitted.)
28 Although BJB16 was concerned with s 424 of the Act, it was applied in Karan v Minister for Home Affairs [2019] FCAFC 139 at [12] and [15] to review of a s 501CA(4) decision by the Tribunal.
29 The Tribunal was aware that the applicant had experienced side-effects caused by his medication. It referred to the applicant's written statement which stated that, "The medications I am administered on Christmas Island makes me feel nauseous and affects my motivation and I have decreased energy levels". The Tribunal was also aware that the applicant was emotionally disturbed at one point during his evidence. The Tribunal set out a passage of evidence during which the applicant was evidently disturbed when talking about a friend who had committed suicide. The Minister's representative asked the applicant whether he was all right to continue. The applicant replied, "I - give us a minute." He then said, "Yes, right", and the applicant's evidence continued.
30 The applicant accepted that he had not made any complaint to the Tribunal prior to the decision being made that he was unable to adequately represent himself because of any medical or psychological condition. Nor is there anything in the material to suggest that the Tribunal ought to have been aware of any realistic possibility that he was unable to represent himself. The medical records before the Tribunal, including those prepared on 27 September 2021 and in November 2021, did not suggest that there was any significant mental or physical impairment caused by the applicant's medication.
31 The applicant has failed to demonstrate that he was deprived by the effects of any psychological or physical condition of the ability to adequately or meaningfully represent himself before the Tribunal.
32 To the extent that the applicant asserts that the length of time he has resided in Australia, the contributions he has made through his work and involvement in community activities were not considered, that submission cannot be accepted. They were expressly taken into account by the Tribunal. Contrary to the applicant's submission, the Tribunal also took into account that the applicant's family resided in Australia and that he had no family in New Zealand. It took into account the applicant's assertion that in his current medical condition, he would not survive if he were sent back to New Zealand. Further, it took into account the effect of the applicant's removal upon his son, noting that the applicant appeared to be estranged from his son, but that the applicant claimed that there was some dialogue between them, with a view to repairing their relationship.
33 There was no requirement for the Tribunal to take into account the absence of a warning that the applicant's visa may be cancelled if he reoffended. That was not a mandatory relevant consideration under s 501CA(4) of the Act, nor was it the subject of any submission to the Tribunal.
34 The Tribunal did take into account that the applicant had been the subject of supervision orders, home detention orders and intensive correction orders, but considered that these had not ended his substance abuse problems and offending.
35 The applicant contended that the Tribunal had not taken into account the fact that he had not consumed alcohol and drugs for two years. However, the Tribunal expressly took into account that the prison and detention environment had been effective in severing his alcohol and drug dependence, although the Tribunal went on to say that it had little confidence that the position would remain if he were returned to the Australian community.
36 In my opinion, the applicant has not demonstrated any jurisdictional error on the part of the Tribunal.
37 The application must be dismissed with costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.