Consideration of Ground 1
26 The applicant alleges that he was denied procedural fairness because the Minister failed to consider several documents sent by Mrs Mouflih to the Department, and that failure was material to the Minister's decision.
27 The Minister's decision was made under s 501CA(4) of the Act. That section provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
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(ii) that there is another reason why the original decision should be revoked.
28 The application for review has been made under s 476A(1)(c) of the Act, which confers original jurisdiction on the Federal Court of Australia in relation to a privative clause decision, or purported privative clause decision, made personally by the Minister under s 501CA. Pursuant to s 476A(2), that jurisdiction is the same as the jurisdiction of the High Court of Australia under s 75(v) of the Constitution. The remedies provided by s 75(v) of the Constitution are only available for jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [83]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [46].
29 In Viane v Minister for Immigration and Border Protection (2018) FCAFC 116, the Full Court held at [30], [41]-[42] that where the Minister overlooks sufficiently important material provided by, or on behalf of, the applicant which, if accepted, would or could be dispositive of the decision, there may be jurisdictional error: see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]; Hay v Minister for Home Affairs [2018] FCAFC 149 at [10].
30 The applicant contends that the Minister overlooked six documents that were sent by Mrs Mouflih to the Department, namely: a letter applying to revoke the Apprehended Violence Order (AVO) made against the applicant; the applicant's notice of appeal to the District Court of NSW; a letter to the Armidale Magistrates Court; and reports from Dr Cruickshank dated 6, 13 and 20 September 2017 (collectively, the Contentious Documents).
31 The Minister accepts Mrs Mouflih posted a bundle of documents to the Department and that the bundle was received by the Department on 20 November 2017. The Minister accepts that he is taken to have received the documents that were received by the Department. However, the Minister contends that the Contentious Documents were never posted to, and never received by, the Department.
32 The onus of proving there was jurisdictional error is on the applicant. It is necessary for the applicant to demonstrate that:
(1) The bundle of document sent by Mrs Mouflih and received by the Department included the Contentious Documents.
(2) The Minister's failure to consider one or more of the Contentious Documents was material to the outcome of the Minister's decision.
33 The Minister accepts that Mrs Mouflih believes she placed the Contentious Documents in the envelope together with the other documents she sent to the Department. However, the Minister argues Mrs Mouflih is mistaken in that belief. The Minister submits that Ms Rizza's evidence demonstrates there is no reason to think the documents went missing within the Department.
34 Mrs Mouflih's evidence was that she printed off two copies of each of the documents, placing each copy in a separate pile. She placed one pile of the copies in an envelope and posted it to the Department. She retained the other one. When she later checked the retained documents against the list of documents the Minister said he had considered, she found that the list did not refer to the Contentious Documents. From that, Mrs Mouflih inferred that the Department had received the Contentious Documents, but that the Minister had not considered them.
35 Mrs Mouflih was a patently honest witness, and the Minister did not contend to the contrary. She seemed to me to be a careful person who attended assiduously to the provision of submissions and documents to the Minister, given the vital importance of the decision to her future and the future of her husband. It is unlikely that she was mistaken in her evidence that she placed the Contentious Documents into the envelope posted to the Department. If she had not, there would probably have been two copies left over in the retained documents, rather than only one. The other possibility is that Mrs Mouflih may have mistakenly printed off only one copy of the Contentious Documents, but that was not suggested to her. In any event if that happened, she is likely to have noticed, given her system of placing the printed documents in two piles. I accept, on the balance of probabilities, that Mrs Mouflih placed the Contentious Documents into the envelope that she posted to the Department.
36 Ms Rizza deposed that if the Contentious Documents had been received, she would have expected to have found them. However, there are several factors that cause me to doubt her evidence.
37 Ms Rizza was not appointed to the Pipeline Management Team until January 2018. She deposed that she was not aware of any recent changes to the process presently in use, and believes that it was the same process in place in November 2017. Her belief cannot stem from her own knowledge, and she has not deposed as to the source of her belief. At best, it is unsourced hearsay. That affects the reliability of that aspect of Ms Rizza's evidence.
38 Ms Rizza deposed that the process presently used is for hard-copy post to be opened by a team called "Converga Team" (now the "Decipha Team") comprised of people contracted to the Department. She deposed that the Converga team date-stamps the hard-copy documents and provides them to staff within the Pipeline Management Team. A member of the Pipeline Management Team scans the hard-copy documents and stores the PDF versions on an electronic management system. The original hard-copy bundle is then sent to storage.
39 There are two inconsistencies or gaps in Ms Rizza's evidence. The first is that Ms Rizza's evidence that "the Converga Team date-stamp the hard copy documents" does not appear to be accurate. The material produced by Ms Rizza as the hard-copy bundle of documents provided by Mrs Mouflih has only the first page date-stamped. Therefore, it is not correct to suggest that all the hard-copy documents are date-stamped.
40 The second is that Ms Rizza provided no evidence as to the processes by which the hard-copy documents are handled and delivered to the Pipeline Management Team, and then handled by staff in the Pipeline Management Team. Those processes are solely within the knowledge of the Minister's Department. Given the applicant's case is that the Contentious Documents must have gone missing after being received by the Department, it is to be expected that a Departmental officer would explain the processes. It cannot be inferred that in November 2017, there was any process in place designed to minimise the misplacement of documents.
41 There is a further reason for doubting the Minister's submission that the Contentious Documents are unlikely to have been misplaced. Ms Rizza deposed that she located two pages in the hard-copy documents retained by the Department that were not in the PDF bundle. I infer from Ms Rizza's evidence that it is the PDF bundle which was eventually provided to the Minister. She was unable to explain why those pages were not in the PDF bundle. The error demonstrates that the system used by the Department is fallible. That fallibility meant two pages of the documents provided by Mrs Mouflih were not considered by the Minister. The Minister's statement that he had considered "all evidence available to me" was therefore incorrect. Ms Rizza's evidence leaves open the possibility that there may have been other documents received by the Department that were not considered by the Minister.
42 I find that the bundle of documents posted by Mrs Mouflih to the Department included the Contentious Documents. I find that the Department received those documents. It is probable that the Contentious Documents were misplaced by the Department. They were not included in the PDF bundle placed before the Minister. I find that the Minister failed to take into account the Contentious Documents.
43 The next question is whether the Minister's failure was material to the outcome of the Minister's decision. In Hossain v Minister for Immigration and Border Protection (2018) 35 ALR 1; [2018] HCA 34, the plurality held at [25] that jurisdictional error is an expression, not simply of the existence of error, but of the gravity of that error. The plurality observed at [30] that a statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance, and the threshold will not ordinarily be met if complying with the relevant condition could have made no difference to the decision. In Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40, the Full Court observed at [33] that the question is whether the applicant has been deprived of the realistic possibility of a successful outcome.
44 The Minister's reasons demonstrate that he took into account a range of factors found in the material that had been brought to his attention. Those factors included the following:
18. Mr MOUFLIH submits that his wife will suffer tremendous financial and emotional hardship if he were to be removed from Australia...
19. I note that Mr MOUFLIH submits that the emotional strain of being separated is taking its toll on his wife, adding that his wife is currently on medication for 'diminishing health' due to stress and states that the 'mental and financial pressures on her are immense'. He states that his wife is attending counselling to help her deal with the situation.
20. In a submission Mrs Mouflih submits that she has never faced such a stressful period in her life and that her life is currently in limbo. Mrs Mouflih adds that the whole situation has resulted in a steady decline in her mental health to the point where she is struggling with daily life.
…
26. I have considered the effect of non-revocation upon Mr MOUFLIH's immediate family in Australia and accept that his wife would experience emotional, practical and financial hardship…
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36. …His wife has stated that she will not remain in Australia in the event that her husband is deported, but will return to Morocco to be with him.
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42. Mr MOUFUH lodged an appeal against the severity of his sentence, however he withdrew this appeal and the original sentence and conviction was confirmed by the District Court at Armidale on 11 October 2017.
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44. I note that the Magistrate also imposed an Apprehended Violence Order (AVO) for a period of 12 months for the protection of Mrs Mouflih.
45. I have considered that the conviction of 31 August 2017 is Mr MOUFLIH's only conviction in Australia and Morocco.
46. However, I view domestic violence of any level of severity as a serious matter. While I accept that Mr MOUFLIH's conduct was a single incident, I accept the Magistrate's description of his offending as a 'shocking incident'. Taking into account the circumstances of Mr MOUFLIH's offending and the disposition of 18 months imprisonment, I find Mr MOUFLIH's offending to be serious.
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52. In her submission, Mrs Susan Mouflih submits that the incident that occurred was not the 'domestic violence' that was stated. She noted that they had never had a single physical altercation before and that what happened was the result of a complete breakdown due to their homeless situation and the complete poverty they were suffering. Mrs Mouflih describes the incident as nothing but an 'unfortunate incident'.
53. Mrs Mouflih submits states that she is to blame as much as her husband and does not consider herself a victim. She adds that she tried on numerous occasions to have the AVO withdrawn as well as the charges against her husband, however states that she was ignored by the police and the courts.
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71. Notwithstanding the assessment of Mr MOUFLIH's good behaviour in prison and in immigration detention, his attendance at a session of counselling, the support he has from his wife and the community and his offers of employment, I find that there is a risk that Mr MOUFLIH will reoffend, albeit a low risk. In making this finding I gave weight to the recent nature of his offending, the existence of an AVO to protect Mrs Mouflih, and the fact that Mr MOUFLIH's conduct has not been tested in the community.
72. Nonetheless I am mindful of the Magistrate's remarks that conduct such as Mr MOUFLIH's has 'the potential of losing an eye or two eyes or being disfigured, scarred for the rest of your life'. I consider that should Mr MOUFLIH reoffend in a similar manner, it could result in serious physical or psychological harm to members of the Australian community.
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79. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr MOUFUH represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed his claims that he will suffer hardship if returned to MOROCCO and the hardship Mr MOUFLIH, his wife and social networks will endure in the event the original decision is not revoked.
45 The first of the Contentious Documents was an application by Mrs Mouflih seeking revocation of the AVO made by the Armidale Magistrates Court on the basis that she no longer feared for her safety. The Minister noted at paragraph 53 of his reasons that Mrs Mouflih had tried on numerous occasions to have the AVO withdrawn. If the Minister had considered the application to revoke the AVO, it would have added nothing of relevance to the material he considered, and could have made no difference to the decision.
46 The second of the Contentious Documents was a Notice of Appeal to the District Court of New South Wales. The appeal was against the sentence imposed upon the applicant on the basis that it was too severe. The Minister noted at paragraph 42 of his reasons that the applicant had lodged an appeal against the severity of his sentence, but had withdrawn the appeal. If the Minister had considered the notice of appeal, it could have made no difference to the decision.
47 The third of the Contentious Documents was a letter sent by Mrs Mouflih to the Armidale Magistrates Court, seeking a revocation of the sentence of imprisonment imposed on the applicant. In her letter, Mrs Mouflih said the police had not followed her wishes and were given false information about the domestic violence incident. She said that she had tried to rectify the matter, but was told nothing could be changed as the applicant had already entered a plea of guilty. She said her health had deteriorated because of the isolation she was experiencing from the impact of being separated from her husband. She said the New South Wales police had failed in their duty of care to her as a victim, and she had no control over her life. She said she no longer feared for her safety and was seeking to revoke the AVO. Mrs Mouflih said that the sentence would probably result in the applicant's deportation to Morocco, which would result in her relocating to Morocco. She asked for the sentence to be changed to a good behaviour bond.
48 In my opinion, there is nothing of significance in Mrs Mouflih's letter that was not covered by other material before the Minister. If the Minister had considered the letter, it could not have made any difference to his decision.
49 The fourth, fifth and sixth of the Contentious Documents are medical reports written by a Dr Cruickshank about Mrs Mouflih, dated 6, 13 and 20 September 2017. Dr Cruickshank diagnosed Mrs Mouflih with Adjustment Disorder with Mixed Anxiety and Depressed Mood. The diagnosis was made in the context of domestic violence having been committed against Mrs Mouflih.
50 The Minister noted at paragraph 20 of his reasons that Mrs Mouflih submitted she had never faced such a stressful period in her life and had experienced a steady decline in her mental health to the point that she was struggling with daily life. She made that submission in the context of the cancellation of her husband's visa and his possible deportation. Although the Minister acknowledged the submission, the Minister made no finding upon it. The Minister accepted at paragraph 26 that the applicant's deportation would cause Mrs Mouflih emotional hardship, but that was not a finding upon her claim that her mental health had declined to the point where she was struggling with daily life. The relevance of Dr Cruickshank's reports was that his diagnosis of Mrs Mouflih with a psychiatric illness provided support for Mrs Mouflih's claim of, not merely emotional hardship, but a deteriorating mental state. The reports added weight to her claim that her (already impaired) mental health had declined to the point that she was experiencing substantial hardship.
51 The claim having been raised that Mrs Mouflih would suffer hardship if an adverse decision were made, the Minister's obligation was to consider, in the sense of actively thinking about, that claim. The Minister was not required to make a finding upon Mrs Mouflih's claim about her deteriorating mental state. However, if the Minister had read Dr Cruickshank's reports, together with the other material before him, he may have found that Mrs Mouflih's psychiatric condition had deteriorated to the point where she was struggling with daily life due to the impending deportation of her husband. Mrs Mouflih was the victim of the applicant's offence, but evidently considered that she had also been made a victim of the cancellation decision. The Minister expressed concern in his reasons about the impact of the offence upon Mrs Mouflih. The impact of the decision upon Mrs Mouflih obviously weighed heavily upon the Minister, as is indicated by his references to the emotional and other hardship she would face. It is impossible to know whether or not the weight added to Mrs Mouflih's claim that her mental health had declined to the point that she was experiencing substantial hardship by the evidence that Mrs Mouflih already suffered from a psychiatric condition would have tipped the balance in favour of revocation of the cancellation decision. But it may have. The Minister's failure to consider Dr Cruickshank's reports denied the applicant the realistic possibility of a successful outcome. That is not a high threshold.
52 I am satisfied that the applicant has established there was jurisdictional error by reason of the Minister's failure to consider Dr Cruickshank's reports.