Pennie v Minister for Home Affairs

1. The appeal be dismissed.
2. The appellant pay the costs of the respondent, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The appellant, Mr Pennie, has appealed the dismissal of his application for judicial review of a decision of the respondent, the Minister for Home Affairs, not to revoke a visa cancellation decision. In his appeal, Mr Pennie has relied on the same grounds that he advanced in the Court below. For the reasons that follow no error is discernible in the judgment below and the appeal should be dismissed. 2 Mr Pennie is an Irish citizen who moved to Australia with his parents at the age of six in 1980. 3 On 21 July 2015 he was sentenced in the District Court of Western Australia to three years' imprisonment for possession of methylamphetamine with intent to sell or supply to another, and 12 months' imprisonment (cumulative) for wilful destruction of evidence. 4 On 24 July 2015 he was sentenced in the Perth Magistrates Court to an additional six months' imprisonment on a number of other charges. 5 On 13 January 2016 a delegate of the Minister cancelled Mr Pennie's Class BF transitional (permanent) visa under s 501(3A) of the Migration Act 1958 (Cth) ("the Act") on the basis that he was serving a sentence of imprisonment at the time and the delegate was not satisfied that he passed the character test, due to his substantial criminal record. 6 In accordance with s 501CA(3) of the Act Mr Pennie was invited to make representations about the original decision to cancel his visa, and he did so. 7 On 18 June 2018 the Minister made a decision not to exercise his power to revoke the original decision under s 501CA(4). The Minister found that Mr Pennie failed the character test and he was not satisfied that there was another reason to revoke the cancellation. 8 In the Court below, Mr Pennie alleged that he made certain representations in favour of revocation in response to the invitation under s 501CA(3) of the Act, which were not given "proper, genuine and realistic" consideration by the Minister. Those representations included that: (a) his family would not survive if he were removed to Ireland; and (b) he would experience homelessness, financial devastation, lack of medical care, unemployment, loneliness and exacerbation of his psychological conditions if removed to Ireland. 9 The allegation about the first mentioned representation was not pursued by Mr Pennie at the hearing or on appeal. 10 With respect to the second representation, the Minister's reasons recorded: 36. In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr PENNIE will face if removed from Australia to his home country of Ireland in establishing himself and maintaining basic living standards. 37. I have considered Mr PENNIE's representations that he suffers from a number of psychological and physical conditions including anxiety and depression which have led to several attempts at suicide, his drug abuse, shoulder injury with related chronic pain, heart failure and Crohn's disease, and therefore needs the support of his family and medical professionals. I have considered a number of documents provided in relation to his health issues, particularly the medical reports provided by Mr PENNIE's representative. I also note that Mr PENNIE has indicated that his compensation claims for his shoulder injury are ongoing and I accept that removal may impact his ability to sustain that claim. 38. I have considered Mr PENNIE's representations that since losing his younger brother [redacted], he tells his family he loves them every day and the thought of never seeing his family again in Australia is unbearable. Mr PENNIE states that his parents are getting old and if he was removed from Australia, he would not be able to visit his parents' graves when they pass away or that of his brother [redacted]. [His sister] states that deporting Mr PENNIE 'would destroy him.' Both Mr PENNIE and his family and friends note the tightknit nature of the Pennie family. 39. I have taken into account Mr PENNIE's representations that he has no social or family ties in Ireland and knows nothing about his country of birth. He fears of homelessness, financial devastation, lack of medical care, unemployment, loneliness and exacerbation of his psychological conditions. I note that Mr PENNIE has accepted that he is unlikely to face significant language or cultural barriers if returned. However, Mr PENNIE asserts that the lack of social and economic support available to him will have negative effects on his mental and physical heath and his ability to establish himself there, in addition to difficulties he would likely face in organising the specialist medical support he needs. 40. I note Ireland has comparable standards of healthcare, social welfare and housing support to Australia. I note Mr PENNIE has a varied work history and find this may assist him to obtain similar or other employment in Ireland to ameliorate his economic hardship. I also note Mr PENNIE's employment in the prison's laundry and his commitment to seeking employment on release from prison is evidence of his ability to overcome the limitations of his shoulder injury and other health concerns. I have considered [the applicant's father's] statutory declaration stating that he has extended family members still residing in Ireland. While Mr PENNIE does not currently know this family they may offer support if he is removed to Ireland. 41. I accept that Mr PENNIE departed Ireland as a young child and would experience significant difficulties in establishing and adjusting to life as an adult in Ireland. I also accept Mr PENNIE's immediate family and social supports are in Australia and he may experience significant emotional and practical hardships upon return to Ireland. I find that Mr PENNIE's psychological conditions may be exacerbated given his history of depression and suicidal ideation. However I find that as an Irish citizen Mr PENNIE will have a level of access to healthcare, social welfare and housing support that is similar to other citizens of Ireland. I also find that Mr PENNIE has the obtained skills which are transferable to Ireland and should assist him in resettling. (Errors in original.) 11 The primary judge found that the Minister had substantively considered the representations in question. Her Honour reasoned as follows: 55. In this case, the applicant repeated his concerns about prospective homelessness and lack of medical care if he were removed to Ireland in a number of statements in his representations, as set out in [10], [12], [13], [15] and [16] above. 56. The Minister considered those submissions. He has incorporated reference to them in his reasons and so they can be taken to form part of the reasoning process: Minister for Immigration and Border Protection v Maioha at [64]. The question is whether they were given proper evaluative consideration within the principles discussed above. 57. The Minister's consideration of the representations about homelessness is apparent from [39]-[41] of his reasons (set out at [23] above). There is reference to the applicant's lack of social or family ties in Ireland, his fears of homelessness and a lack of social and economic support. The Minister then notes three matters relevant to the submission about homelessness: that Ireland has comparable standards of social welfare and housing support to Australia; that the applicant has a varied work history and a commitment to seeking work and the prospect that he will be able to work even with limitations due to his health conditions; and that there is possibility of support from extended family members who reside in Ireland. The Minister accepted that the applicant may experience significant difficulties and practical hardships upon return to Ireland. However, the Minister (having already noted that Ireland has comparable standards of social welfare and housing to Australia) found that the applicant would be entitled to a level of access to social welfare and housing support that is similar to other citizens of Ireland, and that he has transferable work skills that may assist him in resettling. 58. Further, it is important to note the conclusion at [90] of the reasons (at [41] above). 59. The Minister found that the risk of harm that the applicant posed to the Australian community and the need to protect it from that risk outweighed the factors in favour of restoring the applicant's visa, including 'the hardship the applicant … will endure'. There is no reason to read 'hardship' as excluding issues of homelessness (or medical needs). It was reasonably open to the Minister to reason that the applicant would face significant difficulties and hardship upon return to Ireland and that such hardship might be ameliorated due to the applicant's ability to speak the language, his potential for employment, access to social and housing services and the possibility of support from his extended family. 60. The applicant submitted that the Minister failed to say anything about what might actually happen to the applicant if he returned to Ireland, failed to address the basis of the appellant's fears and did no more than make a general finding as to services that might be available to the applicant on his return to Ireland. 61. It was for the applicant to persuade the Minister that hardship caused by homelessness was another reason why the decision to revoke the applicant's visa should be revoked. It was for the applicant to put forward whatever material he wished the Minister to take into account about access to housing. It was not for the Minister to investigate and make findings as to the particular outcome for the applicant in terms of finding housing in Ireland: Minister for Immigration and Border Protection v Maioha at [48]-[50]; Ali v Minister for Home Affairs [2018] FCA 1693 at [48]-[49]; McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37]; Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [42]; Romanov v Minister for Home Affairs [2018] FCA 1494 at [14]. 62. On my review of the reasons, the Minister as a matter of substance had regard to the representations as to homelessness. I do not see in the Minister's reasons any ground to conclude that the issue of homelessness was not substantively considered. 63. The Minister's consideration of the representations about medical needs is apparent from [37] and [39]-[41] of the reasons (set out at [23] above). 64. Information about the applicant's medical conditions was provided to the Minister and the Minister recorded in his reasons that he had considered those reports. The applicant's medical conditions identified by him include heart failure (he suffered cardiac failure in 2014), Crohn's disease, depression and chronic pain. The Minister noted the applicant's statement that he would likely face difficulties in organising the specialist medical care he needs. 65. Again, it is important to note the conclusion at [90] of the reasons (at [41] above) and the assumption by the Minister that the applicant will endure hardship. Such hardship, which sensibly must be taken to include a reference to dealing with health and medical issues, was acknowledged, but in the Minister's view was outweighed by the risk of harm that the applicant posed to the Australian community and the need to protect it from that risk. 66. The Minister's reasons disclose that he accepted that the applicant would face significant difficulties and hardship upon return to Ireland but that insofar as lack of social and economic support may impact on his physical health and his ability to address his medical needs, the applicant would have a level of access to healthcare, social welfare and housing comparable to that which is available in Australia. There was no evidence from the applicant that supported the statement in the representations to the effect that medical services may be unavailable to the applicant in Ireland. As referred to above with respect to the homelessness representations, it was for the applicant to put forward whatever material he wished the Minister to take into account about medical services in Ireland. 67. In my view the Minister directed his attention to whether hardship, including the prospect of homelessness and the applicant's health and medical issues, comprised 'another reason why the original decision should be revoked' and he concluded on the materials before him that he was not satisfied that there was such another reason. For the reasons set out above, I do not consider that the Minister committed error in reaching that state of satisfaction. It follows that ground 1 is not made out. 12 No error is discernible in the primary judge's reasons. As her Honour correctly noted, the Minister is required to consider representations made by a person in response to an invitation under s 501CA(3) of the Act and a failure to consider or take into account matters of sufficient importance and the representations may amount to jurisdictional error: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 ("Maioha") at [45] (Rares and Robertson JJ); Navoto v Minister for Home Affairs [2019] FCA 295 at [47] (Allsop CJ). But, as the primary judge correctly found, in making his decision the Minister did address the representations made by Mr Pennie that he would experience homelessness, financial devastation, lack of medical care, unemployment, loneliness and exacerbation of his psychological conditions if removed to Ireland and considered the consequences to Mr Pennie of returning to Ireland. The Minister accepted that he may experience significant difficulties and practical hardships upon return to Ireland but was of the view that Mr Pennie would have a level of access to healthcare, social welfare and housing comparable to that which is available in Australia and that, as an Irish citizen, Mr Pennie will have a level of access to healthcare, social welfare and housing support that is similar to other citizens of Ireland. 13 In written submissions filed by Mr Pennie in support of his appeal, Mr Pennie argued that the views expressed by the Minister were factually incorrect as "factual evidence" demonstrated that: (a) homelessness in Ireland is at a crisis point and has increased some 200% in the past 12 months; (b) he would not be eligible for a state pension as he has made zero contributions in the past due to living in and calling Australia home; (c) he would not be entitled to immediate job seekers allowance as he has not been in Ireland or another EU member state; and (d) he is not automatically entitled to collect social payments and/or housing assistance. 14 At the hearing, Mr Pennie sought to tender various documents in support of his concern about his homelessness if deported to Ireland, but, as none of those documents were before the Minister when he made his decision, the tender was not allowed. The primary judge correctly stated that it was for Mr Pennie to put before the Minister what he wanted the Minister to take into account and it was not for the Minister to undertake his own research or investigate for himself the likelihood or otherwise of Mr Pennie finding housing in Ireland, or obtaining social welfare or adequate health care. The Minister had no legal duty to make such inquiries for himself nor to make findings of fact as to whether Mr Pennie would be entitled to social and housing welfare if removed to Ireland: Maioha at [41]-[46] (Rares and Robertson JJ). His legal duty was to address the representations made and to take them into account in considering whether to revoke the cancellation decision. A fair reading of the Minister's reasons discloses that he both considered and weighed up the matters put to him by Mr Pennie. 15 Ground 2 is a claim that the Minister's decision was affected by jurisdictional error in that it was legally unreasonable. Mr Pennie's second ground of appeal focusses on a part of the Minister's reasons concerned with membership of the Bandidos Motorcycle Club ("the Club"), an outlaw motorcycle gang of which he has been a vice president. Mr Pennie claimed that there was no evident rational connection between the material before the Minister and the following findings of fact made by the Minister: (a) "I find that without a definitive separation from [the Club] or other negative associations, there remains a risk that Mr Pennie may reoffend, whether compelled to do so or otherwise"; and (b) "I find that if Mr Pennie resumed contact with any outlaw motorcycle club, his likelihood of reoffending would increase". It was submitted by Mr Pennie that, therefore, the decision was legally unreasonable. It is said that the primary judge was in error in failing to so find. 16 The particular statements in the reasons of the Minister that are the subject of complaint were at paragraphs 70 and 80 and are as follows: While I accept that Mr PENNIE has attempted to leave [the Club], I note the submission from Mr PENNIE states that the separation is 'ongoing.' I find that without a definitive separation from [the Club] or other negative associations, there remains a risk that Mr PENNIE may re-offend, whether compelled to do so or otherwise. … While I accept that Mr PENNIE has the support of family and friends, has made progress towards his rehabilitation and has positive plans and intentions for his release from prison which may reduce the likelihood of him reoffending, I cannot dismiss his past association with a well-known motorcycle gang, his propensity towards drug use in times of crisis and the absence of testing of his newfound rehabilitation in an uncontrolled environment. I find that if Mr PENNIE resumed contact with any outlaw motorcycle club, his likelihood of reoffending would increase. Furthermore, I find Mr PENNIE's history in resorting to drugs due to negative events makes him susceptible to engage in future offending involving drugs. 17 The above statements were said to have been without evident rational connection to the material before the Minister on the basis of a claim that all of the material showed that Mr Pennie had severed his ties with the Club. It was said that the primary judge erred in failing to find that the Minister's decision lacked the quality of reasonableness that was necessary for a valid exercise of the statutory power to revoke the cancellation of Mr Pennie's visa. 18 The primary judge rejected that ground. Her Honour considered that, as other parts of the decision revealed, the Minister was well aware that the appellant's contention was that he had severed ties with the Club and that the Minster's consideration of the question of risk was not premised only on what might have been a misplaced emphasis on use of the word "ongoing" in the submission but on a number of matters. Her Honour reasoned at [79]: The Minister evidently considered that despite the applicant's claim that he had separated completely from [the Club], there was a risk that he would re-engage or be in contact with the Club. So much is implicit from the finding at [80] read as a whole. The Minister states that he could not dismiss the applicant's past association. The Minister noted the circumstances of the assault on the applicant in prison. The Minister noted (at [70]) the risk of reoffending remained whether the applicant was 'compelled to do so or otherwise', a reference that must in context be a reference to the potential for the applicant to offend in response to conduct of the Club members. The Minister's reference to a 'definitive separation' from the Club and other negative associations is expressed against the background of the Minister's notation of the Pathways Report that referred to the applicant remaining under threat from his former Club members and his 'goal' of staying away from gang life, and the reference in the lawyers' submission of 8 February 2016 to the difficulty attached to seeking to leaving the Club. It was apparent that the applicant's separation from the Club had not been tested outside the prison environment. The Minister had noted a lack of acknowledgment by the applicant of the influence of involvement in a motorcycle club on his conduct. Even accepting the applicant's representations as to separation, in circumstances where members of the Club made contact with the applicant directly or indirectly when he was in custody and in circumstances where (in marked contrast to the circumstances in Muggeridge [v Minister for Immigration and Border Protection [2017] FCAFC 200]) there has been no period of time outside of prison during which separation has been established or tested, it cannot be said that it was illogical or irrational for the Minister to take into account the possibility of the applicant resuming contact with the Club. It was open to the Minister to find that he could not dismiss that possibility. 19 Her Honour concluded that there were reasons given by the Minister from which a logical basis could be seen for taking into account the possibility of the appellant resuming contact with the Club. No error is discernible in the primary judge's reasons. 20 In our view, the reasons of the Minister recognised two matters that provided rational support for the Minister's reasoning, taking account of its character as an administrative decision. First, separation from the Club was not a matter that was in the hands of Mr Pennie alone, as Mr Pennie frankly acknowledged during the course of his oral submissions before this Court. Second, past association with a motorcycle gang could indicate a propensity to possible future association. 21 As to the first matter, on the material before the Minister, those involved with the Club were still pressuring him to offend. In those circumstances, it was open to the Minister to reason that separation from the Club was ongoing, in the sense that it had not been completed. The fact that Mr Pennie may have referred to ongoing separation as meaning that his intention was that it would be ongoing and permanent did not make the Minister's reasoning unreasonable in the relevant legal sense. The Minister did not misstate the material by quoting the reference to "ongoing". The reasons did no more than emphasise that the process of separation was ongoing. As the primary judge correctly found, it could not be said that it was illogical and unreasonable for the Minister to take into account the possibility of the appellant resuming contact with the Club. It was open to the Minister to take the view that the separation was not definitive in circumstances where the material showed that the separation was not accepted by the Club. In reaching that view, the Minister was not manifesting a misunderstanding of the submission by Mr Pennie (summarised earlier in the reasons) that he had severed all ties with the Club. Rather, the reasoning reflected the material which indicated that the separation was not complete. Significantly, the Minister's finding referred to a risk of reoffending by Mr Pennie "whether compelled to do so or otherwise". This language indicated a view about the Club possibly compelling actions by Mr Pennie in the future that was open to be formed on the material before the Minister. 22 As to the second matter, ultimately, the Minister referred to Mr Pennie's "past association with a well-known motorcycle gang" and then referred to the possibility of resumed contact "with any outlaw motorcycle club". The past association with the Club at a senior level was a rational basis upon which to be concerned about future association despite the material advanced to the effect that Mr Pennie was making a complete separation from the Club. 23 Plainly, the Minister's reasons were focussed on the fact that the Club had not accepted a definitive separation and Mr Pennie's past behaviour indicated a propensity that may result in a future association with an outlaw motorcycle gang. This mode of reasoning was not irrational. 24 Finally, we note that even if there had been irrationality demonstrated in the particular findings it would still have been necessary for Mr Pennie to demonstrate that the decision was unreasonable by reason of that aspect of the reasons. As stated in Tsvetnenko v United States of America [2019] FCAFC 74 at [85] (Besanko, Banks-Smith and Colvin JJ): [R]eview for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness. Unreasonableness of the kind described in authorities such as Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 is a narrow ground of review. There was no attempt before the primary judge or on appeal to demonstrate that the alleged irrationality, if established, was of such a character that it made the decision as a whole unreasonable in the requisite sense. 25 Accordingly, we would dismiss the appeal. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Davies, Derrington and Colvin.