MCKERRACHER J
1 I have had the advantage of reading the reasons in draft prepared by Stewart J. I am grateful to his Honour for the clear outline of the relevant facts (which I will not repeat), the issues and the leading authorities. For the reasons given by Stewart J, Ground 1 of the appeal cannot succeed. Regrettably, I have arrived at a different conclusion on Ground 2 and consider that the appeal should therefore be dismissed.
2 The substance of Mr Swannick's main complaint is a failure to give adequate consideration to the overall effect of a determination to not revoke the visa cancellation decision, particularly with regard to his mental health. In my view, the difficulty in the argument as put is that it focuses on the outcome rather than the process. As a result, where no other jurisdictional error has been established, the argument can only be accepted if this Court substitutes its own conclusion on the merits. The difficulty with various descriptors being given to the quality of decision making, as a number of authorities have accepted, is that doing so may invite the Court to slide into merits review in circumstances where no other jurisdictional error has been established. For that reason, even though a reviewing court might well have reached a different decision on the merits, and even though an outcome may appear to be harsh (as many decisions under s 501 may appear to be), it is beyond the remit of the Court's function to substitute its view on the merits.
3 I respectfully agree with the observations of Stewart J that the principal point in the appeal calls for an evaluative exercise, based in part on impression, in deciding whether the Minister adequately considered the consequences for Mr Swannick's mental health on his return to the United Kingdom, including the Minister's characterisation of those consequences as "significant hardship". That exercise by the Court on appeal does not necessarily involve looking for error in the reasoning of the primary judge. The Court on appeal must make an evaluation of the issue for itself. It is convenient though to set out the reasoning of the primary judge.
4 As her Honour correctly observed in the primary judgment (at PJ [58]), Mr Swannick did not submit that he would not be entitled to, or able to, obtain any support in the United Kingdom for his mental health issues or would not be entitled to, or able to, receive his medication. Similarly, he did not submit that he would be unable to obtain assistance with respect to homelessness in the United Kingdom. At least in this regard, although such support and assistance is certainly only one consideration, the United Kingdom clearly has sophisticated services available.
5 As observed by the primary judge, it was clear from the Minister's reasons (MR) as a whole that the Minister was aware of the concerns about Mr Swannick's mental health, and that he considered a range of sources (as set out at MR [60]-[62]), including Mr Swannick's own expressed concerns, in dealing with impediments that he would face upon return to the United Kingdom. Her Honour also noted (at PJ [64]) that separately in his reasons the Minister had also recorded information about Mr Swannick's mental health issues. The Minister accepted that all of his social, employment, educational and meaningful family ties are in Australia, and that it was implicit that the Minister was aware that there were no such ties in the United Kingdom.
6 Her Honour further observed (at PJ [65]) that the Minister referred to a lack of family support and other connections (at MR [61]), and that he also expressly referred (at MR [61]) to the statement in the submission on behalf of Mr Swannick that he fears homelessness.
7 The primary judge referred (at PJ [66]) to the parts of the Minister's reasons recording his consideration of representations as to a feared decline in mental health and feared homelessness (from MR [53]) which preceded the Minister's finding (at MR [64]) that he accepted that Mr Swannick would experience "significant hardship" in returning to the United Kingdom. The primary judge found (at PJ [67]-[68]) that the reference to "significant hardship" at [64] of the Minister's reasons must, in its context (that it follows reasons that expressly refer to the issues of mental health and homelessness), be taken to include Mr Swannick's mental health issues and potential homelessness. Just as such hardship must also be taken to include the "serious and substantial difficulties" that he would face assimilating in a new country, which was referred to at [63] of the Minister's reasons.
8 The primary judge concluded (at PJ [69]) that this approach was consistent with Navoto v Minister for Home Affairs [2019] FCAFC 135 (at [99]) and Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 (at [70]). These authorities are important and consider broadly similar circumstances. They also reveal that the focus of attention, in inquiries such as the present, must be on the process that was undertaken in arriving at the outcome in the decision, rather than the merits of the decision itself. I also refer to them below.
9 Her Honour reiterated (at PJ [70]) that while the Minister's conclusion (at MR [64]) that Mr Swannick would experience "significant hardship" was concise, it was necessary to direct attention to the particular context in which the expression was used, including the nature of the reasons that preceded it and the nature of the representations in fact made. Her Honour referred to what she had said earlier (at PJ [58]), and stated that relevantly, there was no material put forward by Mr Swannick as to circumstances that might deny him, or impact his access to, mental health services, medication or housing support in the United Kingdom.
10 As the primary judge correctly stated (at PJ [71]) in any event, contrary to the submission made at first instance for Mr Swannick, it was not for the Minister to ask for further representations or make inquiries about the representations or ascertain whether Mr Swannick would in fact be homeless or would in fact have no access to medical care or counselling: citing Navoto (at [100]), Maioha (at [48] and [70]) and Pennie v Minister for Home Affairs [2019] FCAFC 129 (at [14]).
11 Her Honour then observed (at PJ [72]) that, as recognised in Navoto (at [89]), the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression.
12 Her Honour concluded (at PJ [72]) that, having regard to the limited nature of the representations made, the careful recording of the evidence and submissions as to Mr Swannick's mental health issues and fears of homelessness in the "impediments" section of the reasons immediately preceding the Minister's finding at [64], and the qualitative finding that the various impediments would lead to Mr Swannick experiencing significant hardship, the Minister, as a matter of substance, had regard to the representations. Her Honour concluded (at PJ [73]) that the Minister identified the hardships that Mr Swannick might face, and that read practically, the Minister's reasons indicated that the Minister included mental health issues and potential homelessness within his findings as to significant hardship.
13 Mr Swannick, who made a compelling and eloquent submission to this Court, stressed that the Court must assess in a qualitative way whether the decision-maker has, as a matter of substance, had regard to the representations put, referring to Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 per Perram J (at [22]). It is clear in my view that the primary judge did just this in considering whether the Minister had given consideration to the submission made as to Mr Swannick's fears of homelessness and a serious deterioration in his mental health if he is removed from Australia (at PJ [33]-[75]), concluding (at PJ [74]) that the Minister "substantively considered Mr Swannick's claims in respect of mental health and homelessness".
14 There are three authorities that are particularly pertinent to this appeal. The first is Maioha where the Full Court (per Rares and Robertson JJ) observed (at [45]-[47]):
45 What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put: compare Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] per Perram J. Additional adjectives do not assist that analysis and indeed tend to distract from it by being "apt to encourage a slide into impermissible merit review": Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30] citing Swift v SAS Trustee Corporation (2010) 6 ASTLR 339 at [45]. Because the Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. Neither does the Court ignore such a statement.
46 In our opinion the Minister did have regard to the respondent's representations in the present case and it could not be said that he had not had regard to the representations that the respondent would have nowhere to live and no money if returned to New Zealand. Indeed, he found that the risk of harm that the respondent posed to the Australian community and the need to protect it from that risk outweighed the factors in favour of restoring the respondent's visa, including "the hardship Ms MAIOHA… will endure …"…
47 We would therefore, with respect, disagree with the primary judge at [32] that the passages from the Minister's reasons "failed to engage in an active intellectual way with the applicant's submissions as to her financial situation and accommodation and in failing to do so, the Minister fell into jurisdictional error."
(Emphasis added)
15 Secondly, the requirement to consider whether a decision-maker has in substance considered the representations made, was adopted by the Full Court in Navoto (Middleton, Moshinsky and Anderson JJ) (at [85]-[89] and [98]-[99]):
85 Moreover, if a decision-maker under s 501CA(4) of the Act overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the decision-maker may, depending on the seriousness of the error, commit a jurisdictional error: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 at [30] per Rangiah J, cited in Hay v Minister for Home Affairs [2018] FCAFC 149 at [10] per Colvin J, with White and Moshinsky JJ agreeing and DRP17 at [47] per Jagot, Rangiah and Banks-Smith JJ; see also Maioha at [49] per Rares and Robertson JJ.
86 A number of these authorities were considered by the primary judge at first instance. Having surveyed the authorities, his Honour expressed at [47] the following summary of the key principles, which we respectfully adopt:
… it can be taken that a failure to consider or take into account matters of sufficient importance in the representations may amount to jurisdictional error either because it cannot be said that the required state of satisfaction has been reached in accordance with the section in all the circumstances, or because not to take such an important matter into account reflects a failure to take into account all the representations. One should be cautious about over reliance on textual taxonomical precision in this area. There will be jurisdictional error if material important in the representations has not been taken into account so as to make the purported exercise of the power not one that can be seen or characterised as being based on, or having taken into account, the representations as a whole. An evaluation of this will be context and circumstance specific. Textual formulae are of little assistance.
87 Moreover, in addressing a clearly articulated argument advanced by the person making representations, a decision-maker under s 501CA(4) of the Act is required to give active intellectual consideration to those representations: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 (Carrascalao) at [43]-[46] per Griffiths, White and Bromwich JJ and Buadromo at [42] per Besanko, Barker and Bromwich JJ. The person making the representations and submissions should not be left to guess what role material considerations have played in the decision: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1 (Lafu) at [49] per Lindgren, Rares and Foster JJ. This is particularly important where the consequences of these considerations have serious human consequences, such as deportation and exclusion from Australia: Hands at [3] per Allsop CJ, with Markovic and Steward JJ agreeing.
88 This, however, "does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant": Carrascalao at [45]. And, importantly, decision-makers under s 501CA(4) of the Act are not required to consider a reason in favour of revocation not advanced by the person making representations to the decision-maker: Sowa v Minister for Home Affairs [2019] FCAFC 111 at [43] per Jagot, Bromwich and Thawley JJ, citing Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 362 ALR 9 at [79(3)] and [80] per Robertson, Moshinsky and Bromwich JJ.
89 Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall "on the wrong side of the line", to quote Lafu at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons. What is required by a court upon judicial review is a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations made: Maioha at [45] per Rares and Robertson JJ.
…
98 These passages illustrate three principles which also resonate in this case. First, in conducting judicial review of the reasons of a decision-maker, the court upon judicial review must retain an abiding appreciation of the ultimate statutory task that was faced by the decision-maker. Under s 501CA(4)(b)(ii), the issue for the decision-maker is whether he or she is satisfied that there was another reason why the original decision to cancel the visa should be revoked. Particular aspects of the reasons of the decision-maker must be viewed through that prism.
99 Second, and relatedly, the reasons of the decision-maker must be interpreted practically and with common sense, guided by the acknowledgment of the nature and context of administrative decision-making. Thus, in the words of the oft quoted injunction, "[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280 at 287 per Neaves, French and Cooper JJ, quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 66; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; see also Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] per French CJ, Bell, Keane and Gordon JJ.
(Emphasis added.)
16 Thirdly, it is necessary also to consider the decision in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, and the frequently cited passage (per Allsop CJ at [3]) which now stands for the proposition that a decision-maker must engage in an "honest confrontation" with the often devastating and human consequences of administrative decision-making. It is crucial in my view, that this decision be understood together with the authorities that are helpfully summarised in the passage from Navoto which is quoted above. While the Minister in this case may have phrased his reasons in a somewhat repetitive way, indicating that certain representations had been "accepted", "noted" and "considered", it cannot be said that the seriousness of Mr Swannick's representations as to his mental health were glossed over or ignored. The reasons disclose Mr Swannick's mother's statement that "it will be like he has died" if returned to the United Kingdom (at MR [38]) and that "she fears her son will end up in a mental institution or kill himself if he is removed" (at MR [57]). The Minister went on to say that he had considered the representation that Mr Swannick "feared homelessness and a serious decline in his mental health" (at MR [61]). These submissions are only a few of the numerous and related submissions that were made by Mr Swannick, and on his behalf, to which reference has been made in the Minister's reasons.
17 In summarising these impediments and reaching a conclusion (at MR [64]), the Minister chose the phrase "significant hardship". With respect, I adopt the statement of the primary judge (at PJ [70]) where her Honour said:
There is no doubt that the Minister's conclusion at [64] is concise. Others may have expressed it differently. However, it is not sound to dismiss a finding as formulaic simply because a similar or identical expression is used in other decisions. It remains necessary to direct attention to the particular context in which the expression is used, including the nature of the reasons that precede it and the nature of the representations in fact made.
18 The issue of whether a decision-maker has honestly confronted the representations made cannot become one of language alone. What one person may describe as "significant hardship", another may describe as "devastating". The context of all s 501 cases is the real human consequence of any person's forced removal from Australia. It is grim in almost any situation. As authority dictates, this necessarily requires honest confrontation with those consequences rather than a formulaic ticking of boxes. And in this case (as with most) it is true that the Minister did not dwell at length on the nature and consequences of the "significant hardship", or each individual submissions which went towards the finding of "significant hardship", but that is not to say they were not actively considered in arriving at this finding.
19 There is another aspect of Hands which requires consideration although this aspect was not raised specifically at first instance. In considering the extent of impediments of removal in that case, the decision-maker engaged in a style of analysis of each submission raised by Mr Hands similar to the Minister's decision in this case. This was followed by a conclusion that Mr Hands may experience short-term hardship. In this case, in contrast, the Minister has concluded that Mr Swannick would experience significant hardship if returned and that "the impact of these impediments would lessen over time" by virtue of the welfare and support services in the United Kingdom. These assessments differ in material ways when read within the factual context of each case.
20 Critical evidence was led in Hands regarding the appellant's acceptance into an Aboriginal community, his cultural acceptance as a Koori man and his long-term family connections with five local Aboriginal families: see Hands (at [15]). Such evidence extended to detailing the extent of the impact on Mr Hands and his community if he were removed. In light of this evidence, Allsop CJ, with whom Markovic and Steward JJ agreed, held (at [44]) that there was no rational or probative basis for the finding that any emotional or psychological hardship would be short-term.
21 That is not the expression used in this case. In this instance, the Minister has accepted that removal would occasion "significant hardship". He does not suggest that the significant hardship will disappear, but expresses the view that it will "lessen over time". While this is, in many cases, a reasonable inference to draw when a person who raises concerns about their health is to be returned to a country with welfare and health services comparable to Australia's, in this case Mr Swannick raised a specific concern about the impact of losing the support of his family. This concern is referred to by the Minister (at MR [65]) where he accepted "that all of [Mr Swannick's] … family ties are in Australia" and, considered the submission that "… he needs to remain in Australia where he can receive the love and support of his family". It is doubtful whether there was adequate evidence either way to support the additional rider that the significant hardship would lessen over time. But a practical reading of the reasons indicates the Minister's belief that the available services would lessen the significant hardship (including the impact on him of loss of immediate access to family). That assessment might be questioned, but it cannot be said, in my view, that there was no evidence on which to base that assessment.
22 But, in any event, as noted by the Court in Navoto (at [63]-[64]), the authorities reveal two competing approaches to the determination of whether a finding of fact without evidence amounts to jurisdictional error. It is not necessary to consider them in detail here. In my view, the Minister's assessment of "significant hardship" was both reasonably open on the evidence and displayed sufficient consideration of Mr Swannick's submissions when read in the context of the reasons as a whole, such that it cannot be said that a potentially erroneous finding as to a "lessening over time" was a necessary precondition to the exercise of jurisdiction or a critical step in the ultimate conclusion. Importantly, unlike Hands, there was no suggestion in this case that the significant hardship would only be short-term. There was no suggestion the problems would go away completely.
23 The discussion in these reasons has all focussed on just one issue required to be considered by the Minister. The ultimate task of the decision-maker on an application to revoke a mandatory visa cancellation should also be borne in mind. The extent of the impediments that Mr Swannick would face if removed was but one of a number factors which the Minister was required to weigh in considering whether there was another reason to revoke the cancellation decision. Not least amongst these was the nature of Mr Swannick's serious criminal history.
24 For these reasons, while it is another very unhappy case, I do not consider that Mr Swannick has established that the Minister failed to take into account his mental health in observing (only) that he was going to face significant hardship. I consider that the appeal must therefore be dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher.