Did the Tribunal fail to take into account the prospect of indefinite or prolonged detention?
45 If the Tribunal's conclusion that he would not be removed to the UK until the acute effects of his injury had resolved is to be taken as a finding that there was a prospect of indefinite or prolonged detention, I am not satisfied that the Tribunal failed to take it into account.
46 In determining whether the decision-maker (in this instance the Tribunal) committed a jurisdictional error by failing to take into account a relevant consideration, the representations made to the decision-maker are of critical importance. In Minister for Home Affairs v Omar (2019) 272 FCR 589 the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) observed at 34:
The representations play a central role in the relevant statutory regime. The Minister's statutory power to revoke (and therefore "undo") the mandatory cancellation of a person's visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the Minister's determination of whether he or she is satisfied that there is "another reason" why the cancellation should be revoked. As Colvin J said in Viane at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed. Of course, this does not mean that every matter raised in representations is itself a mandatory relevant consideration. As Colvin J said in Viane at [69]:
All of which does not mean that each matter in the representations is a mandatory relevant consideration such that a failure to bring the consideration to account in performing the statutory task (that is, in forming the required state of satisfaction) would be a jurisdictional error. Such an approach would elevate a requirement to consider significant matters raised in representations to an obligation to form the required state of satisfaction by giving weight to each of the considerations raised in the representations.
(Emphasis added.)
47 In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497; 400 ALR 417 at [22]-[25] Kiefel CJ, Keane, Gordon and Steward JJ said (footnotes omitted):
22 Section 501CA(4) of the Migration 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. The statutory scheme for determining whether the decision-maker is satisfied that there is "another reason" for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is "another reason" for revoking a cancellation decision, the decision‑maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23 It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
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, 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.
25 It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Emphasis added.)
48 Whether a claim clearly arises on the material is a matter of judgment. A court may be more inclined to decide that it does where the claimant is unrepresented. But such a finding is not to be made lightly. It is not enough that it might be said to arise. Consideration must be given to the way the applicant's claims are presented. See AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ) and the cases referred to there.
49 In the present case, no submissions were made to the Tribunal to the effect that remaining in detention for a prolonged period of time was a factor which favoured revocation of the cancellation decision. Rather, the applicant's state of health was raised in the context of his submissions about the impediments he would face if he had to return to the UK. That is evident from his Statement of Facts, Issues and Contentions, the questions asked of him and his witnesses, and his lawyer's oral arguments.
50 As the Tribunal put it in its summary of the applicant's arguments (at 86):
The Applicant's age and his poor health would be a significant impediment to his being returned to the UK and weighs in favour of revocation.
51 The Tribunal returned to the matter in the context of the consideration to which these matters were directed. That is to be found in para 9.2(1) of Direction No. 90 which reads:
Decision-makers must consider the extent of any impediments that the non-citizen 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.
52 The Tribunal noted at [152] of its decision that the applicant's argument that the impediments he would face if removed to the UK were "significant" and heavily favoured revocation of the cancellation decision for various reasons, including that:
(a) [G]iven his age, he also faces an increased incidence of morbidity, which will be compounded by his declining mental health and his other physical medical conditions.
(b) His declining health. Namely, his requiring carer assistance for daily tasks, his inability to walk without a Zimmer frame or carry things, his ongoing heart condition following his heart surgery, his requiring medication for gout, heart disease, hypertension and diabetes and his continued and indefinite wound care following his fall at the Yongah Hill detention centre. The Applicant contended he would not have anyone to assist him with these tasks and needs in the UK, whereas in Australia he can rely on JF [his sister] and NF [his brother-in-law].
53 In oral argument in this Court, the applicant conceded that his representations did not include a clearly articulated claim that the prospect of indefinite or prolonged detention was a reason to revoke the cancellation decision. He argued, however, that a claim to this effect clearly arose on the materials before the Tribunal because evidence had been given about "the deleterious effect of detention on [him], none of which was relevantly considered". He pointed to the evidence that:
he had had a fall while in immigration detention, followed by a bacterial infection requiring hospitalisation and a blood transfusion, and had suffered a seizure;
witnesses other than the applicant had commented on his change of appearance since being in immigration detention, including significant weight loss and depression; and
Dr Lorraine Sheridan, a psychologist retained to assess his risk of reoffending, had remarked on the applicant reporting to her that he felt depressed "as a result of his situation" (which she attributed to "the continued uncertainty about his future").
54 I am unable to accept the argument for two reasons.
55 First, I am not persuaded that the contentions advanced by the applicant in the Tribunal or the references to the particular matters in the evidence before the Tribunal (or both) amount to a claim that the prospect of indefinite or prolonged detention was a reason to revoke the cancellation decision.
56 The only references to his ill-health in the applicant's Statement of Facts, Issues and Contentions were at [10.1]-[10.12] and [10.17], in the context of submissions as to impediments to him resettling in the UK. The only reference to his mental health was made in the same context. It was put in these terms (at [10.12]):
The Applicant's mental health is also likely to significantly decline if he were to be deported to the UK. He is reliant on his social supports and his routines and believes that he would fade away and die if he were deported.
57 The references to his ill-health in the Statement of Facts, Issues and Contentions in Reply, including to the chronic nature of his wound, were in the same context, under the heading "Other considerations: Extent of Impediments if Removed".
58 In examination-in chief the applicant was asked about his injury and treatment but he was not asked a single question about his how he felt about the prospect of indefinite or prolonged detention. The closest was a question about "how … the wound affected [his] day-to-day living in the detention centre" to which he replied:
Well, I live in the health care too, in a room at the health care which is - I've got a carer, four hours a day and she helps me shower, does my clothes, helps me with my room.
59 A good deal of the evidence elicited in chief from other witnesses about the applicant's state of health was directed to how he was likely to fare if removed to the UK. That included the evidence elicited from Dr Sheridan, who was asked to elaborate on her written opinion that the applicant's mental health would decline significantly if he were to be deported to the UK.
60 Neither in opening nor closing submissions did the applicant's lawyer advert to the possibility that the applicant might remain in immigration detention indefinitely or for a prolonged period if the Tribunal were to affirm the delegate's decision, let alone to the impact that might have on the applicant.
61 The fact that the applicant had an injury while in immigration detention and his recovery has been complicated does not mean that, in substance, if not in form, he should be taken to have made such a claim, particularly when he was legally represented. No such claim "clearly emerged" from the materials before the Tribunal.
62 Second, if the period referenced in the Tribunal's decision at [156] is to be taken as indefinite or prolonged, on the basis that it was unknown when the acute recovery phase would come to an end, I am not persuaded that the Tribunal overlooked the matter. Its failure to discuss it in any greater detail reflects the way in which the applicant's case was put and the content of the statutory obligation to give reasons.
63 Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) was the operative provision in the present case. It provides:
Where the Tribunal gives in writing the reasons for its decision, those 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.
64 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]-[69], McHugh, Gummow and Hayne JJ said of s 430 of the Migration Act (which relates to Part 7 reviewable decisions but was in relevant respects to the same effect as s 43(2B) of the AAT Act), all the section requires is that the Tribunal set out its findings on those questions of fact it considers to be material to the decision it made and to the reasons it had for reaching that decision. In these circumstances a court is entitled infer that, if the Tribunal did not refer to a particular matter, it did not consider that matter to be material to its decision. While that may disclose a jurisdictional error, that is not invariably the case. Similarly, if particular evidence is not mentioned in the Tribunal's reasons, that does not necessarily mean that the evidence was overlooked; the Tribunal might have considered it but given it no weight and therefore not relied on it to reach its findings of material facts: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [34] (Katzmann, Griffiths and Wigney JJ). See, too, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [31] (French CJ and Kiefel J).
65 In the present case, on the assumption that there was a prospect of indefinite or prolonged detention, I am not satisfied that the Tribunal failed to take it into account. To the contrary, I am persuaded that the Tribunal took it into account in its deliberations (at [156]) but gave the matter the weight it considered was warranted, having regard to nature of the representations and the dearth of medical evidence concerning his prognosis and future treatment. In so doing, I am not persuaded that it committed a jurisdictional error.