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

Direction 90

1. These proceedings concern the correct application of Direction 90 to the applicant's circumstances.
2. Under s 499(1) of the Act, the Minister has the power to make written directions for decision-makers who have been delegated powers under s 501CA(4) of the Act. At the time of the cancellation decision, Ministerial Direction 79 was in effect. By the time of the delegate decision not to revoke the visa cancellation, and the Tribunal decision, Direction 79 had been replaced by Direction 90, effective from 15 April 2021. Direction 90 set out mandatory considerations that decision-makers "must take into account … where relevant to the decision". Paragraph 5.1(4) of Direction 90 provided that its purpose was to "guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act". Paragraph 5.2(5) provided that: Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
3. Direction 90 set out "Primary" and "Other" considerations for decision-makers as follows:
4. Primary Considerations 8.1. Protection of the Australian Community 8.1.1. The nature and seriousness of the conduct 8.1.2. The risk to the Australian community should the non-citizen commit further offences of engage in other serious conduct 8.2. Family violence committed by the non-citizen 8.3. Best interests of minor children in Australia affected by the decision 8.4. Expectations of the Australian community
5. Other Considerations 9.1. International non-refoulement obligations 9.2. Extent of impediments if removed 9.3. Impact on victims 9.4. Links to the Australian community 9.5. Impact on Australian business interests
6. Paragraph 8.1 of Direction 90 provided that protection of the Australian community should be considered by reference to the nature and seriousness of the conduct, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. In para 8.1.1, under the subheading "The nature and seriousness of the conduct", Direction 90 provided that:
7. In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
8. without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
9. The violent and/or sexual crimes conduct;
10. crimes of a violent nature against women or children, regardless of the sentence imposed;
11. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
12. Paragraph 8.2. of Direction 90 set out considerations in relation to the separate "primary consideration" of family violence:
    1. Family violence committed by the non-citizen
13. The government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph 3 below).
14. This consideration is relevant in circumstances where:
15. a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
16. there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
17. In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
18. the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
19. the cumulative effect of repeated acts of family violence;
20. rehabilitation achieved at time of decision since the person's last known act of family violence, including:
21. the extent to which the person accepts responsibility for their family violence related conduct;
22. the extent to which the non-citizen understand the impact of their behaviour on the abused and witness of that abuse (particularly children);
23. efforts to address factors which contributed to their conduct; and
24. Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
25. Among the "Other Considerations" in Direction 90, para 9.2. set out factors for consideration in determining whether there would be impediments to resettlement in the destination country were the former visa holder to be removed from Australia: 9.2. Extent of impediments if removed
26. 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 the following:
27. the non-citizen's age and health;
28. whether there are substantial language or cultural barriers; and
29. any social, medical and/or economic support available to them in that country.

DECISION OF THE TRIBUNAL

1. The Tribunal's decision record (D) first set out the procedural history (D[1]-[10]), relevant legislation (D[11]-15]), and the requirements of Direction 90 (D[16]-[24]). This was followed by a section in which the Tribunal summarised the evidence before it (D[29]-[69]. Under the subheading "Domestic violence offences", the Tribunal said the following:
2. A pre-sentence report prepared by the NSW Probation and Parole office in Bathurst on 3 December 2002 refers to the Applicant's relationship with CY, who he met in Nowra when she was aged 17 years. The couple married in July 2000 when CY turned 18…They separated in February 2001 and their son, MY, was born in April 2001.
3. NSW Police records record that on 31 October 2000, CY, who was four months pregnant, alleged the Applicant had punched her in the head, causing a lump and bruising on her forehead and had attempted to throw her out of their van. The Applicant was charged with an offence, but there is no conviction recorded in relation to this incident. CY's mother reportedly told the NSW Probation and Parole Service that the couple's relationship was abusive and exploitative…During cross-examination [before the Tribunal], the Applicant stated that the incident with CY occurred after she had been out at a disco where he saw her with other men, and then returned home late. He said he did not hit CY.
4. The Applicant's first conviction for Assault occasioning actual bodily harm was recorded at Mudgee Local Court on 7 November 2001. The police fact sheet relating to that offence records that during an argument with his then partner, KC, the Applicant grabbed and squeezed her throat until she could not breathe. When questioned about the incident by the police, the Applicant admitted to the offence. When asked if it was wrong to assault people, he was alleged to have said 'not really, it's not so bad, she's drunk'. An apprehended violence interim order was made which records that KC suffered bruises to her face, neck and a small cut to her left hand.
5. During cross-examination [before the Tribunal], the Applicant stated that he did slap KC, but this was in response to her stabbing him with a screwdriver. He said that if he had choked her, she would have died. He claimed that KC's mother and sister influenced her to call the police. The Applicant denied KC's allegation that he had tried to kill her by placing a hairdryer near the bath. He said that he had warned her about having the hairdryer plugged in when she was in the bath. The Applicant also denied KC's allegation that he threatened to burn her house down and kill her family. He said that they had argued when she found out he was using drugs and she asked him to leave. He did leave and did not return.
6. On 4 December 2002, the Applicant was convicted of 11 offences at Dubbo Local Court, including two counts of Common assault-T2 and one count of Destroy or damage property <=$2000-T2. The police records relating to these offences describe an assault by the Applicant on 9 June 2002 against his former de facto partner FM, who had recently left the relationship and moved in with her sister. The police records record that the Applicant entered FM's apartment without her permission, called her a "fucking whore", pushed her to the ground and kicked her about four times, grabbed her by the throat and choked her, punched her in the head twice and threw her computer on the floor. The Applicant was sentenced to a term of imprisonment of nine months for Common assault -T2 offence and six months' imprisonment for Destroy or damage property <=$200O-T2. During cross­examination [before the Tribunal], the Applicant stated that he argued with FM but said that he did not assault FM, as he would 'never do such a thing like that.'
7. On 18 June 2018, the police attended the Applicant's home after M''s son, TM, contacted the police for assistance. When the police arrived, MP declined to provide a statement and said that she been having a verbal argument with the Applicant but denied any physical violence. During cross-examination [before the Tribunal], the Applicant stated that he and MP had an argument but TM did not call the police and he was not scared because of him. (citations omitted)
8. The Tribunal then summarised the evidence relating to the applicant's drug offences (D[38]-[39]), other offending (D[40]-[42]) and conviction for assault causing death (D[43]-[48]) before setting out the following: Drug addiction
9. In his statement dated 14 October 2021, the Applicant stated that he started using drugs at the end of 2001 when he and CY separated. He relied on drugs to try and cope with their separation. He started using drugs every weekend and then almost every day. He does not know when he became addicted, but he knew he had a problem when he started to sell drugs to support this habit.
10. The Applicant admitted to police on multiple occasions that he used the drug ice. In March 2016, the Applicant told a community corrections officer that he had commenced drug use in 2002 and used speed, ecstasy, heroin, cannabis and cocaine on a regular basis with friends but had only been using ice in the previous 12 months. He started using ice in order to stay alert when he was working two jobs between 2002 and 2011. When he is on drugs his 'mindset is not normal' and he 'cannot think straight and decide rationally.'
11. In his statement dated 14 October 2021, the Applicant stated that he did not try to get help for his addiction and was 'hanging around' other drug users. He did attend two or three counselling sessions while he was on parole. Shortly thereafter he started using drugs again. If he is permitted to remain in Australia, he will seek treatment for his drug addiction at Odyssey House.88 He has vowed to stay clean for the rest of his life, and will stay away from drug users and anyone who has anything to do with drugs. His partner, MP, has told him that she will leave him if he continues to take drugs. (citations omitted)
12. The Tribunal later noted, in its section headed "Rehabilitation", that the applicant claimed not to have used drugs since he went to jail in 2018 (at D[54]).
13. After discussing evidence of remorse, rehabilitation and the applicant's family relationships (D[53]-[59]), the Tribunal said the following (as it will become relevant to the Minister's submissions discussed later in these reasons, the words "Dr Kwok, Psychologist" that appear appended to the end of para 60 may have been intended as a heading for the paragraphs that follow): Impediments on return
14. The Applicant claims that if he were returned to Romania, he would face practical and financial hardship. He told the Tribunal that he has spoken to his brother and he has said the Applicant would be able to get work in agriculture in France. As a citizen of the European Union, the Applicant will be able to travel freely and work in Europe. Dr Emily Kwok, Psychologist [sic]
15. Dr Kwok interviewed the Applicant on 28 September 2021 and prepared a written report dated 30 September 2021. In her written report, Dr Kwok noted that the Applicant's offending in February 2017 did not appear to be premeditated. Given his criminal history includes other assaults, malicious damage and drug-related offences, his likelihood of engaging in further criminal or other serious conduct 'will ... depend on his commitment and responsiveness to treatment that targets his impulsivity and aggression, substance abuse and pattern of antisocial attitudes and personality traits.' The Applicant 'would also need to find prosocial recreation and leisure activities in order to reduce his risk of re-offending.' He needs to address his symptoms of post-traumatic stress disorder (PTSD) which has impaired his vocational functioning. The risk of him 're-engaging in problematic behaviours will further reduce if he is able to maintain stable employment.'
16. In relation to the Applicant's substance abuse problems, Dr Kwok recommended the Applicant 'attend individual drug and alcohol counselling in order for treatment to be tailored to his specific needs' and that this treatment 'should continue for at least his first year back in the community.' She suggested that the Applicant obtain a referral to see a psychologist so he can continue his treatment for PTSD. Dr Kwok also recommended that the Applicant seek help to address his 'impulsivity and aggression', 'loss of prosocial activities' and his 'pattern of antisocial attitudes and personality traits.' The Applicant indicated to Dr Kwok his willingness to engage in treatment. She opined that based on the Applicant's previous effort to apply for a drug and alcohol course, 'he is likely willing to participate in treatment for substance abuse should this become available'. Overall, she found that the Applicant's prognosis for rehabilitation for his substance abuse is 'positive.' Dr Kwok also noted that during her interview with the Applicant, he 'expressed remorse for his behaviours and was able to speak about the impact which his behaviours had on the victim and on his own family.'
17. Dr Kwok noted that there were protective factors that reduced the Applicant's risk of re­ offending. These include his demonstrated willingness to engage in treatment when he applied for anger management and drug and alcohol courses whilst on remand. He also has expressed a desire to abstain from illicit drug use in the community. Based on her assessment, she is of the opinion that without appropriate treatment the Applicant has a 'moderate risk of re-offending and engaging in further serious conduct'. She concluded that having regard to the Applicant's criminogenic needs and protective factors 'he is a moderate risk/threat/danger to the Australian community.'
18. During cross-examination [before the Tribunal], Dr Kwok confirmed that her opinion would have been different had she known that the Applicant had attended only three drug and alcohol sessions when he was required to do so as part of his probation requirements. In light of this she would recommend that the Applicant have stricter requirements imposed on him to undertake treatment such as attendance at a residential program. Dr Kwok agreed that if the Applicant returns to live with MP and resumes socialising with some of the same people he associated with before, this would 'increase his risk of or his likelihood of relapsing to drug use.' She also agreed that had she been aware the Applicant has two convictions for domestic violence offences against former partners it would have changed her opinion. She told the Tribunal that it is known 'that previous family violence or domestic violence does increase the risk of future domestic violence or violence against partners.' The fact the Applicant had offended in this manner more than once would make her consider that there is 'an increased risk or increased likelihood of this sort of offending.' She stated that the choking involved in the Applicant's domestic violence offending is 'consistent with some of his other offending, which is the aggressiveness and his behavioural pattern.' Similarly, had she known about the Applicant's assault on a 15 year old boy, this would have made her 'reconsider [the Applicant's] risk, whether it would be higher in terms of his future offending against children.' (citations omitted)
19. The Tribunal set out witness evidence including the following provided by the applicant's current partner, MP:
20. MP told the Tribunal that she was aware that the Applicant was a drug user but she did not permit him to bring drugs into her house. She has tried to help the Applicant to quit drugs but has been unsuccessful. She has wanted him to go into rehab and they have talked about it 'but he never got around to actually doing it.' She has told the Applicant that she is 'kicking him out of the house once he touches drugs' and she 'won't tolerate that anymore'. She has made inquiries with Odyssey House about the programs that may be suitable for the Applicant if he is released…
21. The Tribunal turned to consider the evidence against the factors for consideration in Direction 90. The Tribunal found that the applicant's offending was "very serious" (D[77]), noting that "prior to his conviction for assault causing death, he had been convicted of 49 offences for assaults, possession of prohibited drugs, driving offences, larceny and goods in custody" (D[76]); that his history of offending spanned almost two decades (D[79]); that custodial sentences had been imposed (D[80]); and the fact that offending resumed after convictions and terms of imprisonment (D[79]). In relation to family violence, the Tribunal made the following findings:
22. …The Applicant has been convicted of six assaults and has engaged in other conduct that demonstrates his propensity for violence. At least three former partners of the Applicant have made allegations of family violence against the Applicant to the police, resulting in convictions for Assault occasioning actual bodily harm-T2 at Mudgee Local Court on 7 November 2001, and Common assault -T2 at Dubbo Local Court on 4 December 2002. …
23. Having regard to paragraph 8.1.1(1)(d) of the Direction, the Tribunal finds that the Applicant's violent offending, particularly against his female partners, has been frequent and re-occurring and resulted in two convictions for family violence related offences… (citations omitted)
24. The Tribunal concluded that the nature of the applicant's offending weighs "strongly against" revocation (D[84]).
25. Turning to the risk to the Australian community (D[85]-[98]), the Tribunal found a risk of direct and indirect serious harm if the applicant continued to offend, including "physical and/or psychological harm, including injury or death" (D87]), as well as the risk of harm from drug and traffic offences (D[89]). In relation to violent conduct, the Tribunal found that:
26. The Applicant's criminal offending and other serious conduct has included actual and threatened physical violence committed against at least three of his former partners. He has been convicted and sentenced for two violent offences that were committed against two of his partners, namely Assault occasioning actual bodily harm-T2 at Mudgee Local Court on 7 November 2001, and Common assault -T2 at Dubbo Local Court on 4 December 2002… …
27. The Applicant has demonstrated a propensity to act violently with disregard for the harm he causes his victims. If his previous criminal behavior [sic] were to be repeated, this would pose a significant risk to members of the community, including women and children…[D]omestic violence offences inflict substantial physical and psychological harm on individuals and diminish respect for women and equality between the sexes in society more generally.
28. In relation to the applicant's rehabilitation, the Tribunal found the applicant's evidence to demonstrate "a lack of insight by the Applicant into the connection between his drug and substance abuse and his criminal offending", and that he "continues to minimise his actions" by blaming others (D[92]). The Tribunal found a lack of evidence of rehabilitation, noting corrections reports indicating a normalisation of violence, a lack of insight into his proclivity for aggression and violence, and that "whilst the applicant expressed a willingness to engage in intervention to address his substance abuse issues, he was adamant that he did not require support in maintaining abstinence" (D[93]). The Tribunal subsequently found that the applicant had "taken few, if any steps, over the past two decades to gain professional help for his anger issues and substance abuse problems" until September 2021; that "this recent and coincidental recognition by the applicant that he needs professional treatment for his substance abuse and anger management problems casts doubt on the genuineness of the applicant's commitment" to actually address the contributors to his offending (D[95]); and that "the Tribunal cannot be satisfied that the Applicant will undertake the treatment he requires…and that he will not relapse" (D[96]).
29. The Tribunal concluded that the applicant presented a "moderate" risk of engaging in further criminal or other serious conduct, that this presented an unacceptable risk to the Australian community, and that this weighed "heavily against" revocation (D[97]).
30. Turning to the family violence consideration, the Tribunal noted that "the Applicant's offending represents a pattern of violent behaviour towards his female partners" and that although there was no evidence of violence towards his current partner, MP, that "if the Applicant were to enter into another relationship, there is a real potential, based on his history of violence against women, that he will assault a new partner" (D[101]). The Tribunal further found that the applicant has not accepted responsibility for previous family violence conduct, and had "little insight" and "continues to downplay" his violent behaviour towards female partners which tended towards "victim blaming" (D[102]). The Tribunal found no indication that the applicant has taken any steps to obtain support or treatment for his behavioural issues towards women other than a course he was required to undertake while incarcerated in 2003 (D[103]); and that the applicant continued to commit acts of family violence after having been convicted for earlier crimes of a similar nature. The Tribunal concluded that this consideration "weighs strongly against" revocation (D[105]).
31. The Tribunal set out its findings in relation to the bests interests of minor children and the expectations of the Australian community (D[106]-[121]). This included a finding that the likelihood of the applicant's relapse into drug use, coupled with the evidence of his current partner's determination to keep her son away from such drug use, meant that the Tribunal was "not satisfied the applicant will play a positive role in TM's life until he reaches adulthood" (D[111]).
32. The Tribunal then turned to the "Other Considerations", commencing with the extent of impediments to the applicant's resettlement if removed:
33. Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is 42 years of age and is generally in good health. The supporting materials, including Dr Kwo's report and the Applicant's self-reports, indicate that he was diagnosed with Post-traumatic Stress Disorder following a violent home invasion in 2014. If the Applicant were to require mental health treatment in the future, he may have difficulties obtaining it in Romania where the health system is poor compared to Australia and has been ranked last in Europe.
34. The Tribunal found that the applicant would not face cultural or language barriers in Romania (D[129]) and would have the support of his parents and brother (D[130]); and that the applicant had good employment prospects including that he would likely seek agricultural employment in France (D[130]-[131]). The Tribunal found that the applicant would face "initial hardship" due to his long absence from Romania and the consequent separation from his partner, MP and her son, TM; and that overall, this consideration "weighs marginally in favour" of revocation.
35. After setting out its findings in relation to the rest of the "Other Considerations" and giving them neutral or limited weight, the Tribunal concluded that:

• primary considerations 1 and 2 weighed strongly against revocation;
• primary consideration 3 weighed in favour of revocation;
• primary consideration 4 weighed against revocation; and
• of the "other considerations", only the impediments faced by the applicant if removed weighed marginally in favour of revocation.

1. Accordingly, the Tribunal was not satisfied that there was "another reason" to revoke the cancellation decision and affirmed the decision under review.

GROUNDS OF REVIEW

1. The grounds of review are particularised as follows (with citations removed):
2. There was a constructive failure to exercise jurisdiction by the second respondent.
3. In the context of considering the primary consideration of the protection of the Australian community under Direction 90, the second respondent found that the applicant had a serious and sustained drug addiction problem:

• the Australian community would face direct and indirect serious harm if the applicant continued to engage in drug-related offences ([89])
• the applicant's criminal offending was linked to his drug addiction problems in Australia ([92])
• the applicant has shown an absence of any genuine commitment to rehabilitation ([93])
• the applicant's substance abuse problem pre-dates his most recent period of incarceration by many years ([95])
• the applicant had taken few, if any steps, over the past two decades to gain professional help for his anger issues and substance abuse problems ([95])
• doubted the genuineness of the applicant's commitment to undertaking the necessary programs he required to address the issues and significant contributors to the applicant's offending ([95])
• was satisfied that the applicant would not undertake the treatment he required if he were permitted to re-enter the Australian community and would relapse into substance abuse ([96])
• was not satisfied that the applicant would play a positive parental role in a minor child's life until he reaches adulthood because of the Tribunal's findings concerning the likelihood the applicant will undertake the treatment required to prevent him relapsing into drug use ([111]).

1. The Tribunal otherwise noted:

• the applicant's evidence that he will seek treatment for his drug addiction if released into the Australian community ([52])
• expert evidence before the Tribunal, which recommended that the applicant attend individual drug and alcohol counselling for treatment to be tailored to his specific needs ([62])
• the evidence of a witness, who told the Tribunal that she was aware that the applicant was a drug user who had been unsuccessful in quitting drugs ([67])
• the expert evidence that reported the applicant's willingness to engage in treatment for substance abuse ([94])
• the expert evidence that opined that without appropriate treatment, the applicant has a moderate risk of re-offending ([94])
• the applicant's evidence that there were no drug and alcohol courses available to him while he was completing his gaol sentence ([95])
• the applicant's evidence that a drug rehabilitation treatment plan will be determined by a clinical and forensic psychologist ([95])
• the applicant's evidence that he is willing to undertake treatment in the community for his drug addiction ([96]).

1. In the context of considering the other consideration of the extent of impediments if removed from Australia, the second respondent was mandatorily required to consider the applicant's health under paragraph 9.2(1)(a) of Direction 90.
2. The second respondent failed to consider the applicant's serious health issues related to drug addiction and the necessity for drug rehabilitation.
3. When considering paragraph 9.2(1)(a) of Direction 90 (i.e. the applicant's age and health), the second respondent merely found that:

• the applicant was generally in good health ([128])
• the materials indicate that the applicant was diagnosed with Post-traumatic Stress Disorder ([128]).
• if the applicant needs mental health treatment in the future, he may have difficulties obtaining it in Romania ([128]).

1. The second respondent was content to hold the applicant's health issues concerning unresolved serious drug addiction against him when considering the protection of the Australian community primary consideration, but those health issues were forgotten when it came to considering the other consideration of the extent of impediments if removed.
2. Moreover, regardless of what the applicant claimed, an unarticulated claim might "clearly emerge" before a decision-maker from their own findings and the material before them upon which the findings are reached. The applicant repeats the particulars in paragraph 1 above.
3. The second respondent's non-compliance was material. Had the Tribunal lawfully considered the mandatory consideration in paragraph 9.2(1)(a), materially greater weight could have been given to the relevant other consideration (which could realistically have impacted the ultimate balancing exercise undertaken by the Tribunal at [145]-[149]).
4. The Tribunal's decision was legally unreasonable.
5. The Tribunal engaged in impermissible double counting. First, when considering the primary consideration of family violence committed by the non-citizen, the Tribunal found that the applicant's offences involving family violence were very serious and weighed strongly against the revocation of the mandatory visa cancellation decision ([105]).
6. The Tribunal also found that it could not be satisfied that the threat of serious consequences will prevent the applicant from committing further acts of family violence ([104]).
7. Secondly, when considering the primary consideration of the protection of the Australian community, the Tribunal found that the applicant's criminal offending to be very serious ([77]). In making that finding, the Tribunal took into account the applicant's criminal conduct related to family violence ([77], [81], [84]).
8. The Tribunal found that any future reoffending by the applicant may involve physical and/or psychological harm, including serious injury or death, to his victims ([87]). That finding took into account the applicant's domestic violence offending ([87]-[88], [90]).
9. The Tribunal's approach to double count the applicant's family violence offences are contrary to the rules of reason and justice and is plainly unjust and lacking common sense.
10. A number of Tribunal decisions have adopted reasoning so as to avoid the very impermissible double counting issue that has arisen in this case.

APPLICANT'S SUBMISSIONS

1. In relation to ground 1, the applicant relied primarily on the decision of LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039. In that matter, there was an expert report before the Tribunal that the applicant had been diagnosed by a medical professional with an alcohol dependency disorder. There was also evidence before the Tribunal linking the applicant's alcohol use to his offending. The Court found that while the applicant's alcohol disorder featured heavily in the Tribunal's reasoning in respect of the risk of reoffending, it had not been taken into consideration when considering the applicant's health in relation to possible impediments if removed:
2. Indeed, so important was the subject of the applicant's difficulties with alcohol to its reasoning process in respect of risk, it seems to me that the Tribunal on this occasion, and with all respect, has just forgotten that it was additionally necessary to advert to this health condition separately, as ministerially required, when addressing the requirements of [the consideration of the extent of impediments if removed]. Had the Tribunal addressed this subject, it may well have had to confront the discounting promoted in the reply submission on behalf of the applicant. It might also have had to confront the presence or otherwise of any medical facilities in Ethiopia to provide programs for rehabilitation or treatment of those with alcohol dependency disorder. A fair reading of the reference of the minister's specification of health in his direction is that, necessarily, that reference embraces alcohol dependency disorder.
3. The applicant contended that the circumstances of this case were on all fours with LRMM. The applicant submitted that the factors set out in para 9.2 of Direction 90 were mandatory considerations, that when considering the evidence before it against that section the Tribunal found that the applicant "was generally in good health" and made findings in relation to post-traumatic stress disorder, but the Tribunal made no reference to the applicant's unresolved drug use problems. It followed that the Court was entitled to infer that the Tribunal overlooked drug-related health issues and had not incorporated findings relating to drug-related health issues into other findings: Dunasement v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 128 at [54].
4. The applicant submitted that a claim of drug-related health problems relevant to the impediments he faced if removed from Australia clearly emerged from the materials that were before the Tribunal: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [26]. The applicant contended that this error was material because there was a realistic possibility of the Tribunal affording greater weight to the applicant's health as an impediment to resettlement, including:

• by treating that consideration as a primary consideration in the circumstances of the case: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]; and/or
• by consideration of the impact of the applicant's health on factors such as the applicant's prospects of employment following removal from Australia: LRMM at [32].

1. In relation to ground 2, the applicant submitted in summary that the Tribunal:

• found the nature of the applicant's offending, including family violence offences, to be very serious; and on that basis, found an unacceptable risk to the Australian community from the possibility of the applicant reoffending which weighed strongly against revocation; and then
• in relation to the separate consideration of family violence, found that the applicant's family violence offending was very serious and attributed further weight strongly against revocation.

1. The applicant sought to rely on Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 per Allsop CJ at [5]-[10] and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [65]-[66] as authority for the proposition that the Tribunal's "double-counting" of family violence was contrary to the rules of reason and justice, and was plainly unjust and lacking common sense. The applicant pointed to a number of (unrelated) Tribunal decisions in which the member appeared to have been live to the possibility of double counting and structured their reasons to avoid that possibility.
2. The applicant further submitted that if legal unreasonableness were made out, the Court was not required to separately establish materiality, relying on the decision in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [33].

MINISTER'S SUBMISSIONS

1. In relation to ground 1, the Minister submitted that a fair reading of the Tribunal's reasons revealed that the Tribunal did take the applicant's need for treatment to address drug use into consideration in its decision. This included findings that the applicant had not used drugs for over three years and did not consider that he needed professional support. Accordingly, when the Tribunal turned later in its reasons to consider the impediments the applicant faced if removed, the Tribunal only addressed factors that it had not already addressed, such as the prospects of family support and employment in Romania and France.
2. The Minister's written submissions also contended that the part of the Tribunal's reasoning relating to impediments if removed incorporated findings in relation to the evidence of Dr Kwok in D[61]-[64] with respect to the applicant's history of drug addiction. During oral argument, counsel for the Minister conceded that paragraphs D[61]-[64] may in fact be set out in a separate section under a heading "Dr Emily Kwok, Psychologist" (albeit obscured by the formatting of the Tribunal decision record).
3. Nonetheless, the Minister contended that the focus of the inquiry mandated by para 9.2 of Direction 90 was the impediments a person may face in establishing themselves and maintaining basic living standards. The Minister contended that it is in that context that the Tribunal was directed to consider the applicant's health. Accordingly, state of health was not a consideration to which the Tribunal was directed, except in combination with other matters relevant to the prospects of resettlement such as age, employment prospects, and cultural and language barriers.
4. During oral argument, counsel for the Minister made further submissions in light of the decision in El Khoueiry v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 247, which was handed down shortly prior to the hearing in this matter. In El Khoueiry, the Tribunal had accepted that the applicant had a serious drug addiction, and that that was a contributing factor in his very serious criminal conduct which the Tribunal weighed against revocation of the cancellation of Mr El Khoueiry's visa. When considering whether Mr El Khoueiry faced any impediments to resettlement if removed, the Tribunal found that he "was apparently in good health". Mr El Khoueiry contended that the Tribunal had failed to properly exercise its jurisdiction by not taking his drug addiction into account as a health issue when considering the impediments he faced if removed to Lebanon. The Court found that although the Tribunal was clearly aware of Mr El Khoueiry's drug addiction, he had not made any specific representation to the Tribunal about any health issue. The Court found that unlike in LRMM, where there was expert evidence before the Tribunal of a diagnosed medical disorder, there was no claim that could be said to clearly emerge on the materials that had been before the Tribunal of a health condition that would impede Mr El Khoueiry's resettlement in Lebanon, whether relating to drug use or otherwise (at [33]-[42]). The Court found that in those circumstances, the Tribunal could not be criticised for concluding, in relation to impediments faced in establishing himself in Lebanon, that Mr El Khoueiry was "apparently in good health" (at [43]). The Full Court later upheld the decision in El Khoueiry: El Khoueiry v Minister for Immigration, Citizenship, and Multicultural Affairs [2022] FCAFC 136.
5. The Minister contended that the facts in this matter were closer to those in El Khoueiry than to those in LRMM. The Minister contended further that there was nothing relating to health before the Tribunal other than a psychological report relating to post-traumatic stress disorder, which the Tribunal addressed as part of its assessment of the impediments faced by the applicant at D[128]. The Minister contended that drug use per se, including the possibility of a future relapse into drug use, was not a "medical condition" that would enliven an obligation to consider the issue of health among the mandatory considerations identified in para 9.2. of Direction 90.
6. The Minister contended that, even if the Court were to find that the Tribunal had failed to consider the applicant's drug use in relation to impediments to resettlement once removed, such a consideration could not realistically have resulted in a different outcome.
7. In relation to ground 2, the Minister submitted in summary that the considerations of family violence in paras 8.1.1 and 8.2 of Direction 90 were different. The Minister further contended that the Tribunal was not restricted to consideration of the various parts of Direction 90 in a compartmentalised way, given the way in which considerations will naturally overlap depending on the circumstances of each case.

Ground 1

1. It is well settled that the jurisdiction of this Court in respect of decisions made by the Tribunal is limited to review for jurisdictional error. It was a matter for the Tribunal how it assessed the evidence presented to it and the relative weight it attributed to the various considerations in Direction 90. The task of this Court is to review the Tribunal's decision on a fair reading of that decision without "an eye keenly attuned to the detection of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 272.
2. The applicant in respect of ground 1 particularly relied on the decision of this Court in LRMM, I note that central to that decision was a report from a clinical psychologist that, as a provisional diagnosis, the applicant suffered from an alcohol dependency disorder: LRMM at [14].
3. In other matters which have considered the extent of the Tribunal's consideration of health conditions, the Full Court has distinguished LRMM based on the extent to which a health condition was asserted or apparent in the representations and evidence before the Tribunal. So, for example, in both Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 (19 August 2022) and Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 (26 July 2023), the respective appellants contended that the Tribunal had weighed alcohol abuse against them when considering risk to the Australian community but not in relation to impediments to resettlement in their country of nationality. In each case, the Full Court found that it was open to the Tribunal to find that the appellant had not asserted any health condition in representations, nor was there any health condition evident in the medical records before the Tribunal. The Full Court found that accordingly, there was no health condition that the Tribunal was obliged to take into account in considering any impediments the appellants may face in establishing themselves in their country of nationality (Doves at [39]-[49], Manebona at [114]-[116]). In Doves, the Full Court further found that the assertion that alcohol dependency arose as an unarticulated claim was directly contrary to information provided by the appellant in his Personal Circumstances Form that he had no existing medical conditions (Doves at [38]).
4. In Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 the Tribunal had taken into account the appellant's mental health condition as a contributing factor to a risk of his reoffending but not in relation to his impediments to resettlement in South Sudan. The Full Court found that the Tribunal had expressly referred to the appellant's mental health in the part of reasons assessing extent of impediments to resettlement (Deng at [105]-[111]).
5. In King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 (8 September 2023), the applicant contended that by finding no evidence to suggest a lack of appropriate medical care in New Zealand for his heart condition, the Tribunal had failed to evaluate the appellant's representations regarding the medical support that would be available to him. The Full Court distinguished LRMM on the basis that while the appellant's representations included an assertion that his heart condition was an impediment to his return to New Zealand, the focus of those representations was that the support of family and friends he enjoyed in Australia would not be available in New Zealand, as distinct from the level of health care or services available in New Zealand ([73]-[80]).
6. In the present case, the applicant's January 2021 representations were provided through completion of a Personal Circumstances Form. The primary concern repeatedly asserted in the applicant's responses recorded in the Form was the prospect of the breakdown of the applicant's family unit were he to be removed from Australia. Under the heading "Impediments to Return" and a subheading "Health Information", the Form contained the following question: Do you have any diagnosed medical or psychological conditions? If yes: provide details of your condition/s and explain what treatment you are receiving (for example, any prescription medication or counselling or other professional treatment). Provide evidence from a medical professional to support your claims.
7. In response, the applicant ticked a box labelled "No", and left the rest of the section blank.
8. To the next question, set out below, the applicant again ticked a box labelled "No": If you are currently being treated by any doctor/ health professional/ counsellor, provide details that you want the decision-maker to take into account. You may wish to provide a report regarding your treatment and progress.
9. Under the heading "Return to Country of Citizenship", the applicant replied "No" to the following question: Do you have any concerns about what would happen to you if you were to return to your country of citizenship?
10. The next question in the Form asked: Are there any other problems you would face if you have to return to your country of citizenship?
11. The applicant's response was: Family and relationship breakdowns due to have to have a long distance relationship (sic).
12. In the applicant's Statement of Facts, Issues and Contentions presented to the Tribunal, the entirety of the section addressing extent of impediments if removed was as follows: Extent of Impediments if removed
13. We submit that Mr Mihai would face practical and financial hardship upon return to Romania. He does not have a job and has not lived in Romania for the past 20 years.
14. In the applicant's statutory declaration dated 14 October 2021 referred to in D[50], the applicant detailed his past habitual drug and alcohol use in paras 9 to 15, under a heading "My Drug Use". That section concludes:
15. I tried to give up the addiction by myself, but I was unsuccessful. I did not go to rehab as well. I never heard that there is a place where you can go and be treated for drug use.
16. I have not used drugs for 3 years and 3 months since being in jail. I have been offered many times, but I always say no. I plan to continue living without using drugs ever again. I do not want to cause harm to anyone ever again.
17. Later in the statement, the applicant says the following: My future
18. I have a wonderful fiancé, [MP] who I love and care for very much. She has a son [TM] who I treat as my own. They are special people who are very important to me. I need to be here with them in Australia as they count and depend on me. [MP] is sick and she needs me to be by her side.
19. I vow to stay clean for the rest of my life. I understand that because of drugs, a person lost his life. I am sorry and ashamed. I know that what I did was wrong and I will never forget that. When I looked back, I realised many people suffered because of me. I hurt my family and other families as well.
20. I want to say sorry to the victim's family. I also want to say sorry to my family especially my son for not setting a good example. I know I could not take back what has happened, but I will make up for it until I die.
21. I am ashamed, embarrassed, and sorry. What I did was inhumane, and I don't think any person deserved that for whatever reason. I want to say sorry to the Australian government as well. I promise never to take drugs and never to be violent ever again.
22. If I am lucky to get my visa back, I intend to go to rehabilitation like Odyssey House as I promised my family that I would do everything I can to continue being drug free.
23. The section of the report by Dr Kwok referred to by the Tribunal in D[128] stated the following under a subheading "The extent of impediments if Mr Mihai is deported to Romania":
24. The extent of impediments will be largely be dependent on Mr Mihai's ability to access appropriate mental health and drug and alcohol services in Romania. It is my understanding that healthcare in Romania is poor compared to Australia, and its healthcare system has been ranked last in Europe. This is due to the Romanian healthcare system being underfunded and having an acute shortage of healthcare professionals. It would, therefore, be more difficult for Mr Mihai to access psychiatric, psychological and drug and alcohol services in Romania. Subsequently, his vocational and social functioning will likely remain impaired in Romania. Furthermore, it would be challenging for Mr Mihai to gain employment in Romania due to his lack of local work experience and the low probability that he will return to professional wrestling at his age. [citations omitted].
25. Later, in a section titled "Conclusions", the psychologist report states that:
26. The prognosis is positive for Mr Mihai if he seeks treatment in Australia where he has family support. Accessing the necessary mental health and drug and alcohol services in Romania appear to be challenging due to its comparatively poorer healthcare system.
27. I am satisfied that LRMM is distinguishable from the present case. In LRMM there was evidence before the Tribunal - which the Tribunal accepted - that LRMM suffered from alcohol dependency disorder which was in partial remission within a controlled environment; and that LRMM's underlying claim in respect of a problem with alcohol was one consistently maintained by him. The Court in LRMM concluded at [27] that the Tribunal had simply forgotten that it was necessary to refer to the applicant's health condition separately.
28. In the present case the Tribunal plainly had regard to the applicant's history of drug addiction. The evidence of the applicant included that he had previously ceased his drug use, and that if he were permitted to remain in Australia he would seek treatment for his drug addiction at Odyssey House (see Tribunal decision at [52]). However, the applicant also asserted before the Tribunal that he had not been an active drug user for several years and that he had little interest in rehabilitation services referable to drug use.
29. The Tribunal specifically took the applicant's evidence into account (at [93]-[96] of its decision). The Tribunal found, based on the evidence before it, that the applicant was in good health. It had regard to the opinion of the applicant's psychologist, Dr Kwok concerning the desirability of the applicant engaging in rehabilitative treatment however noted the psychologist's subsequent concession that the applicant had showed a disinclination to participate in relevant sessions in Australia.
30. On the evidence before the Tribunal there was, at most, merely the prospect of the applicant relapsing into drug use, however again this was countered by the applicant's own evidence that he was no longer interested in drugs. It must follow in such circumstances that there was no issue before the Tribunal that the applicant continued to suffer from a drug problem which could be considered to be a "health condition" requiring separate consideration.
31. At [127] et seq, the Tribunal considered the extent of impediments the applicant may face if he were removed from Australia to Romania. Given the applicant's own evidence concerning his drug-free circumstances and his lack of interest in rehabilitative treatment, it is not surprising that the Tribunal did not consider the availability of rehabilitative programs in Romania (or alternatively, whether such programs were available) in the context of its consideration of impediments.
32. I am not persuaded that the Tribunal failed to constructively exercise its jurisdiction in the manner contended by the applicant. In my view ground 1 is not substantiated.

Ground 2

1. It does not appear to be in dispute between the parties that Direction 90 directed that the Tribunal take account of family violence conduct in relation to multiple mandatory considerations; and that the Tribunal did so. In ground 2 however, the applicant challenged the Tribunal's consideration of family violence conduct as "double counting", which was unjust and unreasonable. This is because:

• when considering the primary consideration of family violence committed by the non-citizen, the Tribunal found that the applicant's offences involving family violence were very serious and weighed strongly against the revocation of the mandatory visa cancellation decision ([105]). The Tribunal also found that it could not be satisfied that the threat of serious consequences will prevent the applicant from committing further acts of family violence ([104]); however
• when considering the primary consideration of the protection of the Australian community, the Tribunal found that the applicant's criminal offending was very serious ([77]), and that any future reoffending by the applicant may involve physical and/or psychological harm, including serious injury or death, to his victims ([87]). In making that finding, the Tribunal took into account the applicant's criminal conduct related to family violence ([77], [81], [84], [87]-[90]).

1. A decision will be legally unreasonable where it is inconsistent or incompatible with the subject matter, scope and purpose of enacting legislation, given the facts and circumstances of the case and with due regard to the separation of powers: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38. Review for legal unreasonableness is concerned with enforcement of the law governing the limits of the power in question, and not the manner in which that power was exercised: Minister for Immigration v Eshetu [1999] HCA 21, per Gummow J at [91].
2. A standard of legal reasonableness:

• does not involve minute scrutiny with excessive hindsight of the reasoning of the decision-maker: Chava v Minister for Immigration and Border Protection [2014] FCA 313 at [72]; Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [51];
• does not involve substituting a Court's view as to how a discretion should have been exercised for that of the decision-maker: Li, at [30]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]; and
• is stringently applied: Li, at [113].

1. I am not persuaded that the Tribunal acted unjustly or unreasonably in respect of its reasons concerning consideration of the applicant's history of family violence.
2. As the Minister submitted, in Filipovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 846, White J observed in relation to the predecessor to Direction 90:
3. It is also evident that the Direction contemplates that there may be some overlap in the matters informing the mandatory considerations. For example, there may be overlap between the matters in Primary Consideration B (the best interests of minor children in Australia) and Other Consideration B (the effect of non-revocation of the cancellation of the visa on the non-citizen's immediate family) and there may be overlap between Primary Consideration A (protection of the Australian community from criminal or other serious conduct) and Other Consideration 14.4(1) (the impact of members of the Australian community and on victims of the non-citizen's criminal behaviour of a decision to permit the non-citizen to remain in Australia). Other examples could be given. To my mind, this points against Direction No. 79 contemplating a neat compartmentalisation of factual matters into one mandatory consideration to the exclusion of another. (emphasis added)
4. I respectfully adopt these observations of White J as equally applicable to the reasons of the Tribunal in the present case (see also XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138 at [123]-[124] and Fonoti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1553 at [39]-[40]).
5. Further, and importantly, the recent decision of the High Court in Ismail at [36]-[43] supports a finding that alleged "double counting" as contended by the applicant was in fact simply legitimate reasoning on the part of the Tribunal in respect of the evidence before the Tribunal and the considerations it is required to take into account. In particular, I note the following passage from Ismail:
6. In the present case, it is apparent from the delegate's reasons that the delegate weighed the same circumstances in the different contexts and for the different purposes Direction 90 required - the protection of the Australian community (under para 8.1), the identified concern of the Australian Government of family violence (under para 8.2), and the expectations of the Australian community (under para 8.4). There was no irrational, illogical, or legally unreasonable weighing of the same factor in the same context and for the same purpose twice.
7. Although the resolution of each case in which an argument to this effect is put will depend on the terms of the applicable direction and the specific reasons of the delegate, care would also be required before an inference was drawn that a decision-maker had given weight to the same factor in the same context and for the same purpose twice under Direction 90 with the result that the decision is irrational, illogical, or legally unreasonable. Considerations which overlap (such as the consideration of the same acts of family violence in the different contexts of the protection of the Australian community, the views or policies of the Australian Government, and the expectations of the Australian community), by definition, are not wholly coextensive with each other. Weighing the relevance of the same acts of family violence in each different (albeit overlapping) context is not "repetitious weighing" or "double counting", and it would be wrong to conceptualise such a process of reasoning as irrational, illogical, or legally unreasonable… (emphasis added)

Conclusion

1. The application is dismissed. Costs follow the event. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.