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

Federal Court of Australia|2022-10-12|Before: McEvoy J

A writ of certiorari be issued quashing the decision of the second respondent dated 8 April 2021.
A writ of mandamus directed to the second respondent be issued requiring it to review the decision of the delegate of the first respondent made on 23 March 2017 according to law.
The first respondent pay the applicant's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCEVOY J: 1 Before the Court is an application for judicial review of the decision of the Administrative Appeals Tribunal to affirm a decision of the Minister's delegate not to revoke the mandatory cancellation of the applicant's permanent visa. The applicant is a citizen of Iran who is 68 years old and who has lived in Australia for 55 years. He arrived here as a child with his family in 1967. 2 On 23 March 2017 the Minister's delegate cancelled the applicant's visa under the mandatory provision in s 501(3A) of the Migration Act 1958 (Cth) on the basis of criminal offending that resulted in a term of imprisonment of 12 months or more. Such offending met the definition of "substantial criminal record" in s 501(7)(c) of the Act. 3 The applicant sought merits review of that decision in the Tribunal. An earlier decision of the Tribunal was quashed by this Court for jurisdictional error and remitted. The subsequent decision of the Tribunal that is the subject of the present application was made on 8 April 2021. 4 The applicant accepted that he did not pass the character test by reason of s 501(6)(a) and s 501(7)(c) of the Act. The question before the Tribunal was therefore whether there was "another reason why the original decision [cancelling his visa] should be revoked", in accordance with s 501CA(4)(b)(ii) of the Act. 5 In considering the question of whether the cancellation should be revoked, the Tribunal was required to consider each of the factors prescribed by Ministerial Direction 79, which was in force at the relevant time under s 499 of the Act, as well as the evidence and substantial representations made by the applicant as to why the cancellation should be revoked. 6 The Tribunal held a hearing on 7 and 8 May 2020 at which the applicant and various other witnesses appeared in person and gave oral evidence. Some five months after that hearing the Tribunal was reconstituted to another member who had not been present at the May hearing. That member then made the 8 April 2021 decision affirming the delegate's decision not to revoke the cancellation of the applicant's visa. A further hearing was not held. 7 The applicant filed a proposed application for judicial review of the Tribunal's decision on 29 July 2021, together with an application for extension of time. The applicant now seeks to rely on an amended draft application for judicial review, filed on 5 August 2022. 8 The time limit under s 477A(1) of the Act to file an application for judicial review of the Tribunal's decision expired on 13 May 2021. The applicant therefore seeks an extension of that time limit under s 477A(2) of the Act to 29 July 2021, a little over 2 months. This extension of time was not opposed by the Minister and will be allowed.

grounds of application for review 9 The applicant now advances and particularises the following grounds of review: (1) the Tribunal's decision was based in part on an irrational finding or a finding for which there was no evidence, namely the finding that a psychiatrist had diagnosed that the applicant did not have a mental illness; (2) the Tribunal failed to give proper consideration to evidence provided by the applicant as to the effect of his acquired brain injury; (3) the Tribunal denied the applicant procedural fairness, or alternatively, acted unreasonably in the conduct of the review, in failing to listen to the audio recording of the hearing before the previous Tribunal member and relying only on the written transcript; and (4) the Tribunal failed to give proper consideration to whether the applicant faced a real risk of the death penalty on the basis of drug use or possession if returned to Iran. 10 For the reasons that follow I have determined that grounds 1 and 2 must succeed. The Tribunal's decision is affected by jurisdictional error and must be quashed. The Tribunal will be required to determine the application according to law. In these circumstances, and having regard to the fact that the Tribunal will hear the application again, it is unnecessary to consider the matters which are the subject of grounds 3 and 4 of the application for review: Boensch v Pascoe (2019) 268 CLR 593 at 600-601 [7]-[8] (Kiefel CJ, Gageler and Keane JJ), 629-630 [101] (Bell, Nettle, Gordon and Edelman JJ).

Ground 1: Tribunal's decision was based on an irrational finding or a finding for which there was no evidence 11 It is uncontroversial that a core part of the applicant's case as to why there was "another reason" to revoke the cancellation of his visa involved his mental health. That issue was considered by the Tribunal primarily in relation to the risk of the applicant reoffending. However it was also relevant to several of the other factors the Tribunal was required to consider, including the difficulties the applicant would face in Iran if his visa remained cancelled and he was removed from Australia. 12 The Tribunal had before it an expert report from a psychologist, Mr Jeffrey Cummins, who also gave oral evidence before the originally constituted Tribunal. Mr Cummins' evidence was that the applicant had post-traumatic stress disorder and a major depressive disorder. Mr Cummins' report went into considerable detail about the specifics of the applicant's impairment and the nature of the difficulties he would face in Iran as a result of that impairment. Mr Cummins' evidence was consistent with the other expert evidence before the Tribunal, namely two 2017 reports of a clinical neuropsychologist, Ms Laura Anderson, which stated that the applicant presented with many of the clinical features of both PTSD and persistent depressive disorder. 13 However, at [153] of its decision the Tribunal referred to a note in the reports of International Health and Medical Services (IHMS), the health contractors in immigration detention, made by psychiatrist Dr Jillian Spencer. On the basis of the short note it would seem that Dr Spencer had conducted a "Mental Health Screening" of the applicant by videoconference on 29 November 2019. The IHMS note written by Dr Spencer records that the applicant was "[r]eluctant to engage", "[e]nded interview prematurely" and was "[d]ismissive". The final sentence of the IHMS note stated "No evidence of mental illness". 14 The Tribunal characterised that final sentence in the IHMS note as a formal diagnosis that the applicant did not suffer from any mental illness, using it to discount the detailed expert evidence in the reports of Mr Cummins and Ms Anderson of the applicant's mental illness. In effect, and as the applicant submits, the Tribunal treated the short IHMS note from Dr Spencer on the one hand, and the diagnosis and detailed evidence of Mr Cummins and the reports of Ms Anderson which were consistent with Mr Cummins' evidence on the other, as if they were equivalent and cancelled each other out. Referring to the "competing opinions" about the applicant's mental health, the Tribunal concluded at [155]: "Given the competing diagnoses, the Tribunal is not positively satisfied that KQHR has a mental illness." 15 Thus the applicant submits that the characterisation of the IHMS note as a formal diagnosis that the applicant did not suffer from mental illness was irrational and was not open on the evidence: see BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 at 302 [34] (Perram, Perry and O'Callaghan JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 649-650 [135] (Crennan and Bell JJ). 16 The Minister disputes that there was any irrationality and refers generally to the difficulty of showing jurisdictional error on the basis of illogicality or unreasonableness: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28 [33], citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 (2020) 385 ALR 212 at 220 [26]; SZMDS at 647-650 [130]-[135]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 517-518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565 at 598 [142]. 17 In particular the Minister contends that it was not irrational for the Tribunal to conclude that it was "not positively satisfied that [the applicant] had a mental illness" as the Tribunal was faced with what it described as competing medical opinions (from Mr Cummins and Ms Anderson, and then from Dr Spencer) as to the applicant's mental health. The Minister submits that whilst the Tribunal was plainly cognisant of the limitations of the IHMS note, it was open to it to place some weight on the note whilst bearing in mind the limitations inherent in it. In light of what the Tribunal said were the competing medical opinions, the Minister submits that the Tribunal's conclusion was not so lacking a rational or logical foundation that its decision was one that no rational or logical decision-maker could reach: see Djokovic at 28 [34]. Nor could it be said to be outside the area of decisional freedom afforded to the Tribunal. 18 I do not accept the Minister's attempted justification of the Tribunal's finding that it was not positively satisfied that the applicant had a mental illness. In all the circumstances the line in the IHMS note that there was no evidence of mental illness cannot sensibly be regarded as a formal diagnosis that the applicant was not suffering from a mental illness. Plainly it was no such thing. The applicant was reluctant to engage with Dr Spencer in the videoconference consultation, he was dismissive, and the interview ended prematurely. As counsel for the Minister properly conceded at the hearing, it was incorrect for the Tribunal to refer to the observations in the IHMS note as a diagnosis. Certainly it was not appropriate to use what was little more than a passing observation in the IHMS note as a basis to discount the substantial reports of Mr Cummins and Ms Anderson attesting to the applicant's mental illness. Dr Spencer's observation was not, on any view, equivalent to the views expressed by Mr Cummins and Ms Anderson, and cannot rationally be regarded as, in effect, cancelling them out. 19 I accept, therefore, that the Tribunal's characterisation of the IHMS note as a formal diagnosis that the applicant did not suffer from mental illness was irrational and not open on the evidence. It lacked a rational or logical foundation in the relevant sense: Djokovic at 28 [34], and was outside the area of decisional freedom afforded to the Tribunal. 20 In these circumstances it is unnecessary to consider the applicant's alternative formulation of the Tribunal's error as a finding of "competing diagnoses" based on no evidence in that it went well beyond the material on which the Tribunal relied: see DNQ18 v Minister for Immigration (2020) 275 FCR 517 at 530 [53]. 21 The Tribunal's irrational treatment of the evidence regarding the applicant's mental health was material to its consideration of the reasons given by the applicant as to why the cancellation of his visa should be revoked. Thus the Tribunal's decision is affected by jurisdictional error.

Ground 2: Failure to consider evidence of acquired brain injury 22 In light of my conclusion in relation to ground 1 it is strictly unnecessary to consider ground 2. Nonetheless, in my assessment the Tribunal has failed properly to consider the evidence of the applicant's acquired brain injury (ABI), which failure also amounts to jurisdictional error. For completeness therefore I set out my reasoning in relation to this ground also. 23 It is uncontroversial that Mr Cummins' expert report concluded that the applicant's memory, executive functioning and cognitive functioning are all impaired as a result of brain damage. 24 The Tribunal noted at [99] that Mr Cummins' oral evidence was that the applicant had an ABI, which would pose difficulties for him in his functioning. That evidence was given in the context of counsel examining Mr Cummins about the impediments the applicant would face if removed to Iran. 25 However it is the applicant's case that there is no consideration whatsoever of his diagnosed ABI in the Tribunal's consideration of the extent of the impediments if he were to be removed at [207]-[212] of the decision record. Indeed, it is submitted that the closest the Tribunal comes to such consideration is to say at [211] that the applicant "has a range of health conditions". 26 The applicant submits that unlike the mental health evidence the Tribunal did not discount the evidence of an ABI. Thus, it is said, that evidence was not rejected by the Tribunal and needed to be considered in the analysis of whether to revoke the cancellation. The fact that the applicant had been diagnosed with an ABI and the difficulties he would face in Iran as a consequence plainly formed part of the applicant's case for revocation. The applicant submits that it was directly relevant to one of the factors prescribed by Ministerial Direction 79: the extent of impediments if removed. 27 It is said by the applicant that the failure of the Tribunal to consider his ABI and the claims of impediments associated with it was clearly a matter capable of affecting the review. It is submitted that had this matter been properly considered it is possible that the factor of impediments if removed may have weighed much more strongly in the applicant's favour, and in turn it is possible that the overall balance of factors could have shifted: see Nathanson v Minister for Home Affairs (2022) 403 ALR 398 at 411-412 [39] (Kiefel CJ, Keane and Gleeson JJ). Thus the applicant says the failure of the Tribunal to consider the ABI evidence also constituted jurisdictional error. 28 The Minister submits that the evidence of the applicant's ABI was sufficiently addressed. It is contended that the Tribunal expressly referred to the applicant's ABI throughout its reasons (in particular at [35], [50], [99] and [109]) and noted the applicant's neurological deficits (at [157]). Although counsel for the Minister accepted in oral argument that the Tribunal's express references to the applicant's ABI in its reasons where general in nature, it was submitted that when the Tribunal's reasons are read a whole, and when it is recalled that the applicant referred to his health conditions generally before the Tribunal, the Tribunal's statement that the applicant "has a range of health conditions" (at [211]) is significant. The Minister contends that this statement, read in context, demonstrates that the Tribunal had considered the applicant's ABI and had grouped the applicant's ABI with his other health conditions. The Minister contends that it is therefore appropriate that the Tribunal referred to the applicant's ABI at a similar level of generality. 29 Contrary to the Minister's submissions, I do not accept that the Tribunal did actually consider the evidence of the applicant's ABI. The mention of the applicant's ABI in the paragraphs of the Tribunal's decision referenced by the Minister was explicitly at a level of generality and cannot fairly be said to have reflected consideration of the applicant's ABI. The applicant's ABI and the difficulties that he would face were he to be returned to Iran was a critical part of the applicant's case for revocation and was a factor to be actively considered pursuant to Ministerial Direction 79. 30 I accept that had the Tribunal properly considered the applicant's ABI and the claims of impediments associated with it, it is possible that the factor of impediments if removed may have weighed more strongly in the applicant's favour and in turn produced a different result. For these reasons the failure of the Tribunal expressly to consider the applicant's ABI and the claims of impediments associated with it also constituted jurisdictional error.

Conclusion 31 Grounds 1 and 2 of the application for review having been made out there will be orders that a writ of certiorari be issued quashing the Tribunal's decision of 8 April 2021. There will also be a writ of mandamus directed to the Tribunal requiring it to review the decision of the Minister's delegate made on 23 March 2017 according to law. 32 The Minister should pay the applicant's costs of this application. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.

Migration Act 1958(Cth)ss 477A, 499, 501(3A), 501(6)(a), 501(7)(c), 501CA(4)(b)(ii)

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