Second ground of review
52 The second ground of review is that the Tribunal fell into jurisdictional error by failing to take into account a mandatory relevant consideration before making its decision (to affirm the Non-Revocation Decision). Mr Nkani contends that, by paragraph 9.2(1)(a) of Ministerial Direction No. 90, the Tribunal was required to consider the extent of impediments Mr Nkani would face in establishing himself and maintaining basic living standards if removed from Australia to Zimbabwe, taking into account, amongst other things, his health. Mr Nkani submitted that the Tribunal failed to consider his drug and/or alcohol use as a health issue, and thereby failed to take into account a mandatory consideration.
53 Mr Nkani submitted that the Tribunal's reasons show that the Tribunal was aware of his history of drug and alcohol use, and its relationship to his offending. The Tribunal made findings about Mr Nkani's use of drugs and alcohol based on the materials before it in the context of considering paragraph 8.1 of Ministerial Direction No. 90, which refers to the protection of the Australian community from criminal or other serious conduct. Mr Nkani submitted that, when the Tribunal came to assess the material before it in the context of paragraph 9.2(1)(a) of Ministerial Direction No. 90, the Tribunal misunderstood its task. Mr Nkani submitted that the Tribunal's reasons indicate that it erroneously believed that, for a health issue to be taken into account, there needed to be a clinical diagnosis, contrary to the decision of the Full Court in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 (Manebona) (at [101]). In the alternative, Mr Nkani submitted that the Tribunal erred in not considering whether his drug and alcohol dependency issues might pose an impediment on his return.
54 To a considerable extent, Mr Nkani's submissions on this ground relied upon an asserted inconsistency in the Tribunal's consideration of Mr Nkani's use of drugs and alcohol in the context of paragraphs 8.1 and 9.2 of Ministerial Direction No 90. Mr Nkani did not contend that he ever made a representation to the Minister's delegate or to the Tribunal that he had a health issue associated with his use of alcohol or drugs that would be an impediment to establishing himself and maintaining basic living standards if he was removed from Australia to Zimbabwe. Rather, Mr Nkani submitted that such a claim arose from the material that was before the Tribunal. In that regard, Mr Nkani relied on the following material that was before the Tribunal:
(a) In his submission dated 31 December 2019 to the Department, Mr Nkani stated that he dropped out of school and started taking drugs and alcohol. It should be observed, however, that the context of the statement was to explain the reasons that he began to engage in criminal offending at a young age.
(b) A New South Wales Police Force Criminal History - Bail Report for Mr Nkani recorded that, on 26 May 2016, Mr Nkani was remanded to the Drug Court of New South Wales in relation to certain charges.
(c) In his submission dated 31 December 2019 to the Department, under the heading "Criminal Offences and History", Mr Nkani stated as follows (errors in original):
In may 2016
I was sentenced and convicted to engage in another program under the supervision of Drug court and probation.
When I was in prison I also attended a few courses that would help me deal with alcohol and drug addiction called Equips and i also attended various types of counselling which also helped me overcome and understand the true nature of actions and my addictions.
• Drug court provided me with counselling with psychologists and mental health.
• I also had to take strict urine supervision of drugs and alcohol 3 times a week
• I even requested to be enrolled into rehab because i was surrounded by temptations in the community and to me was a great idea.
• I was happy to be there, everything was going just as planned and I was determined to change
Adele House rehab in coffs harbour very Helpful but was not the best centre to be, Although i learned a lot of things about myself and how to deal with some of my emotions
(d) A Case Note Report of a psychological assessment conducted by the New South Wales Department of Corrective Services dated 15 January 2016 stated that Mr Nkani reported a history of alcohol use and drug induced psychosis, but that he was currently drug free. It should be noted, however, that the report also stated that Mr Nkani "presented with appropriate eye contact, speech, and affect", that there "was nil evidence of thought disorder or psychosis", and that Mr Nkani "denied any thoughts or history of deliberate self-harm and presented as stable in mental state".
(e) In his submission dated 21 April 2022, Mr Nkani stated as follows (errors in original):
The decisions and actions I have made whilst in immigration custody to rehabilitate myself in anyway.
…
I know I am still addicted to drugs and alcohol and it's very hard for me to quit.
I know I have made a few promises to the department and to myself that I have changed and I am now better but I still continued to drink and commit serious crimes because of my alcohol consumption.
I have taken drugs once from 2016 -2022 and the reason for that was because I was so stressed out about my visa cancellation situation and also because I knew I was coming back to Villawood detention centre where I got stabbed again I was scared and worried.
…
Steps that I am doing to help.with my addiction and mental health situation...
My records and statements information confirms that i suffer from drug/alcohol addiction and mental health but I just haven't been formally diagnosed yet..
I have repeatedly mentioned that I see things that are not there and I suffer from insomnia. I always seek for help and I always receive help but I haven't received the appropriate treatment that I needed untill.
When I arrived to Christmas's Island detention centre I advised the help professionals about my issues and they are actually giving the appropriate help I needed all along...
I always used to tell the professionals t from precious before that I need strong medication and ongoing counselling but I was always pushed away and given treatment that the professions thought I needed but instead they never took the time to listen to my cry of help...
I am having a very hard time dealing with alcohol and emotional stress because everytime I get depressed or emotional I used drugs and alcohol to heal the pain...
I have found a solution that I definately think.it will work for me and my alcohol addiction.
The doctor has prescribed me with a medical treatment called naltrexstone to take while in detention centre for my alcohol addiction.
This medicine used alongside counselling will support me with the treatment I need to rehabilitate myself and it works by reducing the craving I have for alcohol and would make me sick if I drink alcohol so I wouldn't be able to drink..
I know it doesn't sound like it's the best drug to take but I can guarantee if I take that regularly, daily, weekly for a couple years I would be alcohol free because I never commit any crimes when I am slobber.
I really really want to change and I am willing to try anything I can in my life to make sure that one day I can have a normal life and also a safer environment for everyone else in the community.
Nnaltrexstone
Alcohol is not the main reason I commit crimes. Alcohol only enhances the feelings ones have at that moment and for me it's usually anger from my past..
If I receive ongoing counselling and support while taking this drug I would definately be on a good and appropriate path for change in my life just as long as I stay slobber.
55 In its reasons, the Tribunal referred to an inconsistency in Mr Nkani's evidence concerning his use of alcohol. The Tribunal said (at [100]):
The Applicant claims that he is "still addicted to drugs and alcohol and it's very hard for me to quit". On the other hand he insisted under cross-examination that he could drink moderately and not become drunk, which was also the evidence of one of his friends.
56 The issue raised by Mr Nkani under this ground has been considered by the Court in a number of cases, including at first instance by Logan J in LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 and by Full Courts in Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134, El Khoueiry v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 136 and in Manebona. As each of the Full Courts have identified, the question whether an applicant suffers from a health issue that would present an impediment on return to their country of citizenship is one of fact. As the Full Court said in Manebona (at [113]):
… whether evidence of a history of substance abuse clearly raises an issue as to whether a person has a health condition and whether it may pose an impediment to their ability to establish and maintain basic living standards is very much a factual question which depends upon the content of the material before the decision-maker.
57 On 1 November 2023, after the hearing of this application, the Full Court delivered judgment in Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 173 (Ibrahim) which also considered the issue raised by this ground of review. I invited the parties to file further submissions with respect to the relevance of Ibrahim to the ground as raised by Mr Nkani. The parties subsequently filed submissions and I have taken those submissions into account.
58 In Ibrahim, the Full Court stated two matters of principle that are relevant to the disposition of this ground of review, which I am bound to apply.
59 The first, at Ibrahim [63]-[68], is that the principles stated in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov) (at [24]-[25] per Gummow and Callinan JJ, with Hayne J agreeing at [95]) and in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) (at [61] per Black CJ, French and Selway JJ) are applicable to decisions made under s 501CA(4). The decision-maker is required to consider claims of substance that are clearly articulated or that clearly arise on the material before the decision-maker. As stated by the High Court plurality in Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304 (Plaintiff M1) (at [25] and [27] per Kiefel CJ, Keane, Gordon and Steward JJ, citations omitted):
25 … What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
…
27 None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
60 At Ibrahim [68], the Full Court said:
… a decision-maker under s 501CA(4) of the Act can only come under an obligation to consider a matter if it is clearly articulated, or, if not clearly articulated, clearly arises on the representations. The representations must be regarded as extending at least to any material provided in response to the invitation given under s 501CA(3)(b) of the Act to provide representations. Where a review is conducted by the Tribunal, the obligation may extend to considering additional submissions and other material placed before the Tribunal: see Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 335 at [49]-[51] (Colvin J); Brownlie v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 436 at [53] (Feutrill J).
61 The second matter of principle, at Ibrahim [70]-[74], is that a decision-maker is not obliged to take into account a matter that only arose from the decision-maker's findings. As recognised by the Full Court, however, the fact that a decision-maker made a finding upon a particular matter might be relevant to the Court's determination of whether the matter clearly arose on the material as a reason advanced for revocation of the cancellation decision (Ibrahim at [75]).
62 With respect to the second matter of principle stated in Ibrahim, Mr Nkani submitted that his circumstances are distinguishable from those in Ibrahim in that he made clear representations about his drug and alcohol use issues. Mr Nkani submitted that, unlike in Ibrahim, he did not "disavow" suffering from drug and alcohol problems and was forthright in admitting that he remained addicted despite his attempts at rehabilitation. Mr Nkani submitted that his representations were supported by records going to the issues of his historic addictions.
63 While it can be accepted that Mr Nkani made representations about his drug and alcohol use issues, the representations were made in the context of explaining his history of offending and his risk of re-offending. Mr Nkani did not make any representation to the effect that his use of drugs and alcohol would be an impediment to establishing himself and maintaining basic living standards if removed to Zimbabwe.
64 Mr Nkani made a formal submission in the alternative that the second matter of principle stated in Ibrahim is incorrect, while acknowledging that I am bound to apply the principles stated in Ibrahim. Mr Nkani submitted that the representations made by a person in response to an invitation under s 501CA(3)(b) do not constrain the decision-maker in assessing whether there is "another reason why the original decision should be revoked" under s 501CA(4). If there is something before the decision-maker that would provide "another reason" for revocation, the decision-maker cannot shut their eyes to it simply because it was not part of the case clearly advanced by the person seeking revocation. Mr Nkani submitted that "another reason" may find support from clear representations made by a person seeking revocation; it may clearly arise from the material otherwise before the decision-maker; and it may also find support from findings of fact otherwise made by the decision-maker on a particular matter based on the material before it. The fact that the particular matter may not have been "clearly articulated" by the person seeking revocation does not, in and of itself, mean that it cannot under any circumstances bear on the question of whether "another reason" exists.
65 The Minister submitted that the second matter of principle stated in Ibrahim is correct and consistent with other decisions of the Full Court, including Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137 at [48] (Logan J, Charlesworth and Thomas JJ agreeing).
66 As Mr Nkani acknowledged, I am bound to apply the principles stated in Ibrahim. Ultimately, the relevant question is whether the Tribunal conducted its review in accordance with law by considering the representations and arguments that were clearly articulated by Mr Nkani or which clearly arose on the materials before the Tribunal.
67 With the foregoing legal principles in mind, it is necessary to consider the relevant requirements of Direction No. 90, the representations made by Mr Nkani and the Tribunal's findings.
68 Direction No. 90 was given by the Minister on 8 March 2021 pursuant to s 499 of the Act. The Direction concerned the exercise of the power to refuse or cancel a visa under s 501 and the power to revoke a cancellation decision under s 501CA. By s 499(2A), the Tribunal was required to comply with the Direction.
69 Paragraph 6 of the Direction required a decision-maker to take into account the considerations identified in sections 8 and 9, where relevant to the decision. As observed by the Full Court in Manebona (at [95]), the words "where relevant" in para 6 indicate that the duty to take into account the specified considerations is not an invariable one. The relevance of the consideration will depend upon the representations and evidence put forward by the applicant in a particular case. Paragraph 8 stated the "primary" considerations to be taken into account and para 9 stated "other" considerations to be taken into account. Paragraph 7(2) stated that primary considerations should generally be given greater weight than the other considerations.
70 By paragraph 8.1, the first of the primary considerations that was required to be taken into account was the protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(2) stipulated that decision-makers should give consideration to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
71 The evidence before the Tribunal supported the conclusion that Mr Nkani's offending was related to his drug and alcohol use. In the context of considering the protection of the Australian community under paragraph 8.1, the Tribunal made findings to that effect, including:
(a) Mr Nkani stated that he dropped out of school and started to hang around with the wrong crowd of friends who introduced him to the use of alcohol and drugs, and from there he fell into a life of petty crime commencing with his first offence in 2010 (at [37]);
(b) in 2016, Mr Nkani appeared before the New South Wales Drug Court under a program for offenders whose offending has been largely precipitated by their use of alcohol and other drugs, and who are given an opportunity to enter into a controlled and managed programme in lieu of serving a custodial sentence (at [56] and [57]);
(c) Mr Nkani failed to comply with the Drug Court's conditions (at [59]);
(d) there is an underlying aetiology for Mr Nkani's offending which relates to the misuse of alcohol and other drugs (at [99]);
(e) Mr Nkani claimed that he is "still addicted to drugs and alcohol and it's very hard for me to quit", but also insisted under cross-examination that he could drink moderately and not become drunk (at [100]);
(f) there is no medical diagnosis to support the proposition that Mr Nkani has a clinical diagnosis or dependency on alcohol as distinct from being what he describes as a "binge drinker" who regularly got "wasted", and the Tribunal cannot import into Mr Nkani's narrative a finding that he has a health issue which needs to be addressed in the Tribunal's findings (at [101]); and
(g) Mr Nkani has made several attempts to "get clean" and was accorded a particular opportunity through the Drug Court program, but none of his efforts have succeeded and all have been vitiated by his failure to take advantage of opportunities presented (at [102] and [106]).
72 The Tribunal concluded that Mr Nkani is at a high risk of reoffending and those reoffences are likely to pose a significant danger to members of the Australian community (at [107]). Reading the Tribunal's reasons as a whole, it is clear that the Tribunal accepted that Mr Nkani's use of alcohol and drugs was a primary factor in his offending, that Mr Nkani had made efforts at rehabilitation but had failed, and that this was unlikely to change in the future.
73 It is apparent that the Tribunal was unwilling to find, on the evidence before it, that Mr Nkani's use of drugs and alcohol gave rise to a health issue which needed to be addressed in the Tribunal's reasons (at [101]). A question arises whether, at that point of the Tribunal's reasons, the Tribunal was seeking to draw a distinction between Mr Nkani's use of alcohol and his use of drugs. The Tribunal's statement follows a sentence that refers to Mr Nkani's use of alcohol. However, the Tribunal does not otherwise draw a distinction between Mr Nkani's use of alcohol and his use of drugs. Both are described as a cause of Mr Nkani's offending (at [99]). Nor does Mr Nkani seek to differentiate between his use of drugs and alcohol in his representations to the Tribunal. Reading the Tribunal's reasons as a whole, I understand the Tribunal's conclusion at [101] is that the Tribunal did not consider that Mr Nkani's use of drugs or alcohol gave rise to a health issue which needed to be addressed in the Tribunal's reasons.
74 Mr Nkani did not contend that that conclusion was irrational or unreasonable such as to constitute jurisdictional error. The conclusion finds support in the material before the Tribunal, which is reproduced above, although it can be accepted that Mr Nkani's representations with respect to his use of drugs and alcohol contained significant inconsistencies. One the one hand Mr Nkani referred to being addicted to drugs and alcohol; on the other hand Mr Nkani represented that he had only used drugs once between 2016 and 2022 and was able to drink moderately. Although the Tribunal observed that there was no "medical diagnosis" to support a conclusion that Mr Nkani has a clinical dependency on alcohol, I do not understand the Tribunal to be suggesting that a medical diagnosis is required before such a finding can be made. Rather, I understand the Tribunal to be adverting to the absence of a medical diagnosis as a matter it took into account in making the finding that the Tribunal was not satisfied that Mr Nkani has a health issue in the nature of a clinical dependence on alcohol.
75 By paragraph 9(1)(b), one of the "other" considerations that was required to be taken into account by the Tribunal was the "extent of impediments if removed". Paragraph 9.2(1) of Ministerial Direction No. 90 stated as follows:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
76 In Manebona, the Full Court made the following observations about the meaning of the word "health" as used in paragraph 9.2(1)(a) of the Direction (at [100] and [101]):
100 The word "health" in the phrase "age and health" in para 9.2(1)(a) is used according to its ordinary meaning. In Holloway, Colvin J explained at [12] that, "the word health would ordinarily be understood to mean any aspect of a person's physical wellbeing". We would add that the word is also capable of encompassing a person's mental wellbeing. Where it is reasonably open to determine that a condition falls within that expression, the question as to whether it does or does not is one of fact for the decision-maker.
101 It must be accepted that nothing in para 9.2(1)(a) requires that there must be medical certification in order for a non-citizen's "health" to be taken into account under that paragraph. Of course, medical certification may more readily allow a decision-maker to be satisfied that the non-citizen suffers from any claimed health condition and that the condition may be an impediment to the person establishing themselves and maintaining basic living standards if removed to their home country, but it is not an essential requirement.
77 The Tribunal considered the extent of impediments that Mr Nkani would face if removed to Zimbabwe at [156] to [174] of its reasons. At [156] and [159], the Tribunal made the following findings:
156 There are a number of factors which need to be considered in relation to this criterion. Initially it should be noted that the Applicant is a relatively young man, he is physically fit with no diagnoses of significant physical or mental health problems. He grew up until the age of 13 years in Zimbabwe and thus has some understanding of the culture and mores of that country. He speaks excellent English and some Shona, although he says (understandably) his level of fluency has declined over recent years. Nevertheless, he would be able to revive his understanding of the language if required to speak it more often.
…
159 … The Tribunal accepts that health services may not be comparable to those in Australia but as already noted, this is not the relevant comparator and there is no submission by the Applicant that he actually has significant needs for health services.
78 The footnote to the first sentence of [156] referenced Mr Nkani's Personal Circumstances Form dated 5 May 2021 that was submitted to the Department in support of the revocation of the cancellation of his visa. The Form asked questions based on the mandatory considerations specified in Direction 90, although the questions were framed narrowly. In particular, the first question was: Do you have any diagnosed medical or psychological conditions? As observed by the Full Court in Manebona (in the passage cited above), there is nothing in paragraph 9.2(1)(a) of the Direction that confines the consideration to medical or psychological conditions that have been formally diagnosed by a medical practitioner. Mr Nkani ruled a line through that question. The Form also asked whether "you are currently being treated by any doctor/health professional/counsellor", to which Mr Nkani answered "none".
79 In submissions, the Minister placed considerable reliance on the answers given by Mr Nkani in his Personal Circumstances Form, submitting that Mr Nkani made no representation to the effect that his health would constitute an impediment on return. I accept that Mr Nkani made no representation to that effect and, as discussed below, that is an important factor in considering the second ground of review. However, the answers given by Mr Nkani in his Personal Circumstances Form must be understood in light of the specific questions asked. The questions were framed narrowly, and Mr Nkani's responses to the narrowly framed questions cannot be taken to negative any suggestion that he had health issues that would constitute an impediment on return. That is particularly so in circumstances where Mr Nkani was not legally represented when completing the form or in conducting the review in the Tribunal.
80 In substance, Mr Nkani made two criticisms of the Tribunal's reasons with respect to paragraph 9.2(1)(a) of the Direction. First, Mr Nkani criticised the Tribunal's statement that Mr Nkani has "no diagnoses of significant physical or mental health problems", and submitted that this reveals that the Tribunal wrongly believed that a health issue could only be taken into account if it was supported by medical certification. Second, and in the alternative, Mr Nkani submitted that the Tribunal erred in failing to consider whether his drug and alcohol dependency issues might pose an impediment on his return, and thereby failed to take account of a mandatory consideration in paragraph 9.2(1)(a) of the Direction.
81 I do not accept the first criticism. I do not understand the Tribunal to be saying that it would only take account of a health issue if there was a medical diagnosis or certification to support the claim. As has been said on many occasions, the reasons of an administrative decision-maker are not to be read finely "with an eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The Tribunal's reasons at [156] merely record a finding of fact that Mr Nkani had "no diagnoses of significant physical or mental health problems". That finding was factually correct on the material before the Tribunal. As stated above, the absence of a medical diagnosis of alcohol dependency is a relevant matter for the Tribunal to consider, and there is no error in the Tribunal taking that into account in making findings and reaching a decision.
82 I also reject the second criticism. The Tribunal's reasons at [156] and [159] demonstrate that the Tribunal took into account Mr Nkani's health as required by paragraph 9.2(1)(a) of the Direction. It can be accepted that the Tribunal did not make reference to whether Mr Nkani's alcohol or drug use might pose an impediment on return to Zimbabwe. However, I infer that the Tribunal did not make reference to Mr Nkani's alcohol or drug use in that context because the Tribunal did not consider that it was relevant in the context. In my view, it was open to the Tribunal to form that view.
83 The materials before the Tribunal concerning Mr Nkani's use of drugs and alcohol have been reproduced above. Read fairly, the materials were directed to the reasons for his offending and the risk of his reoffending. None of the materials referred to his use of drugs and alcohol as giving rise to an impediment to establishing himself and maintaining basic living standards in Zimbabwe. In my view, no such claim was articulated by Mr Nkani, and no such claim clearly arose from the materials.
84 As discussed earlier, the Tribunal reached the conclusion at [101] that it did not consider that Mr Nkani's drug and alcohol use gave rise to a health issue that needed to be addressed in the Tribunal's reasons. Mr Nkani did not challenge that finding as being legally unreasonable. Having made that finding, it is understandable that the Tribunal did not then consider whether Mr Nkani's drug and alcohol use would give rise to an impediment to Mr Nkani establishing himself and maintaining basic living standards in Zimbabwe. It was reasonable for the Tribunal to form the view that Mr Nkani did not have a health issue associated with his drug and alcohol use that required consideration in that context.
85 As submitted by the Minister, Mr Nkani had to point to more than the existence of his alcohol and drug use to engage paragraph 9.2(1)(a) of the Direction. Necessarily, the condition must be of such a nature that it may impede Mr Nkani in establishing himself or in maintaining a basic standard of living in Zimbabwe. Mr Nkani made no such representation, and no such representation clearly arose on the materials before the Tribunal.
86 For those reasons, I dismiss the second ground of review.