VCBP v Minister for Home Affairs

Tribunal's decision 12 The applicant applied to the Tribunal for review of the delegate's decision. The applicant attended a hearing before the Tribunal on 25 and 26 February 2019, at which he was represented by counsel. 13 On 6 March 2019, the Tribunal decided to affirm the delegate's decision: VCBP and Minister for Home Affairs (Migration) [2019] AATA 337 (AAT Reasons). The AAT Reasons were structured by reference to the considerations set out in Direction No 79 - Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s501CA (Direction No. 79). 14 In summary, the Tribunal held that: (a) the "Protection of the Australian community" weighed strongly against revocation of the mandatory cancellation: AAT Reasons at [74]-[99]; (b) the "Best interest of minor children in Australia affected by the decision" (i.e. the applicant's two sons) weighed significantly in favour of revocation of the mandatory cancellation: ibid at [100]-[105]; (c) the "Expectations of the Australian community" weighed against revocation of revocation of the mandatory cancellation: ibid at [106]-[112]; (d) the consideration of "International non-refoulement obligations" were not engaged: ibid at [113]; (e) the "Strength, nature and duration of ties" to Australia weighed in favour of revocation of the mandatory cancellation: ibid at [114]-[116]; (f) the consideration of "Impact on Australian business interests" was not engaged: ibid at [117]; (g) the "impact on victims" weighed neutrally: ibid at [118]; and (h) the "extent of impediments if removed" to the United Kingdom weighed against revocation of the mandatory cancellation, but not strongly so: ibid at [119]-[125]. 15 The Tribunal summarised the conclusion of its balancing exercise under s 501CA(4)(b)(ii) of the Act as follows: 126. … Apart from potential separation from his children and his wider family, the significant matter which counsel submitted should be taken into account was the trauma of childhood sex abuse and how that has affected the subsequent behaviour of the Applicant. The Tribunal has considered those submissions above and accepts that the abuse claim has foundation, but not that this is determinant in regard to restoration of VCBP's visa. He has a long history of offending, much of it at the lower end of the scale and directly related to his drug addiction, but he also openly accepted responsibility for an armed robbery; and for two recent and serious domestic assaults against his domestic partners. 127. It is the finding of the Tribunal that the primary consideration which weighs in favour of revoking the mandatory cancellation of VCBP's visa, the best interests of minor children, and the other consideration which also weighs in his favour, the strength, nature and duration of ties, are outweighed by the primary and other considerations which weigh against revocation.

Application to this Court 16 The applicant initially incorrectly filed an application for judicial review of the Tribunal's decision in the Federal Circuit Court on 2 April 2019. The solicitors for the Minister subsequently notified the applicant of this error and invited him to file an application for an extension of time in the Federal Court. The applicant did so on 8 May 2019. On this basis, the Minister did not oppose the application for an extension of time. On 17 May 2019, I granted an order by consent that the application for an extension of time be allowed. 17 The hearing of the review application was originally listed for 19 September 2019. However, the applicant, who is currently in immigration detention, informed the security officers who were to escort him to court that he was feeling unwell and could not attend court. This message was passed onto my chambers shortly before the commencement of the hearing. In these circumstances, I adjourned the hearing. 18 The judicial review application was heard on 22 October 2019. The Minister was represented by Mr Hosking of counsel. The applicant appeared in person. At the hearing, I provided the applicant an opportunity to address me in relation to his application, and specifically in relation to his grounds of review. The applicant mentioned that he had lived in Australia for two-thirds of his life and expressed his view that the decision to deport him was severe given his two children, aged 11 and 8, continued to live in Australia and that the applicant had no family in the United Kingdom. The applicant also referred to his PTSD as a result of the sexual violence that he experienced in his childhood. The applicant finally highlighted that a report of Ms Gee, a psychologist, stated that the applicant was at a high likelihood of suicide if he returned to the United Kingdom without the support of his family. 19 The two grounds of review set out in the applicant's originating application for review of a migration decision dated 1 August 2019 are in now considered in turn.

Ground One - Failure to make reasonable enquiries as to mental health services 20 The first ground of review contended by the applicant was as follows: The Tribunal's decision is affected by jurisdictional error because the Tribunal failed to make reasonable enquiries as to the availability of appropriate mental health services which would be available to the Applicant to address the severe mental health issues outlined by Dr Donna Gee in her report dated 5 February 2019. 21 Paragraph 14(1)(e) of Direction No. 79 provides that, in deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account, including, relevant to this case, the extent of impediments to the non-citizen if removed from Australia. This consideration is further informed by paragraph 14.5 of Direction No. 79: 14.5 Extent of impediments if removed (1) 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; c) Any social, medical and/or economic support available to them in that country. 22 Ms Donna Gee is a clinical psychologist who gave evidence to the Tribunal. She examined the applicant on two occasions, 19 July 2018 and 19 January 2019. As a result of these examinations, two reports of Ms Gee - dated 23 July 2018 and 5 February 2019 - were before the Tribunal. 23 In her latter report, Ms Gee diagnosed the applicant with a "Major Depressive Disorder, Post Traumatic Stress Disorder, and Opioid Use Disorder, in sustained remission and on maintenance therapy". These diagnoses were noted by the Tribunal at [47] of the AAT Reasons. Ms Gee observed that "[e]ffective treatment of [the applicant's] mental health symptoms is likely to lead to significant improvement in his psychological and social functioning and reduce the likelihood of a relapse in his substance misuse". She further noted generally that: (a) "[t]he addition of psychological interventions to standard biological treatments such as Methadone can result in major increases in treatment efficacy"; and (b) "[t]here is evidence to suggest that with integrated treatment targeting substance misuse, mental health issues and providing a stable lifestyle (housing, work) reduces the likelihood of reoffending significantly". 24 At no point in her second report did Ms Gee comment on the availability of appropriate treatment in the United Kingdom for the applicant's mental health diagnoses. However, she did express the following: 11. In my opinion, [the applicant] will be unable if he is deported to Scotland. He has no supports in Scotland and his main motivators for change, his children and being a good father to ten, would be gone. Furthermore, the lack of support systems available would place [the applicant] at considerable risk for deterioration in his mental health and a relapse in his substance misuse. His mother reports that she "doesn't think we would survive" if he was deported to Scotland. 25 During the hearing before the Tribunal, the applicant was briefly asked in cross-examination about his ability to access treatment for his mental health conditions if removed from Australia: [COUNSEL FOR THE MINISTER:] If I can then move on to some of your other health issues, briefly? You told Ms Drago that you were on Epilim for epilepsy?---Epilim. Yes. Epilim. Is that a medication that you are able to get through some sort of government subsidy here?---Yes. Are you aware of whether you would be able to continue taking that in Scotland?---I think so, yes. It is on the NHS there?---I think so. I don't know. I imagine it would be. Are there other health issues that you would look to get treatment with if you remained in Australia?---Yes, My − the psychological treatment for the depression and the post−traumatic stress disorder. Yes. That is a part of my - - - Is there any reason why you couldn't also access those treatments in Scotland?---Well, I would also − I need the support of my family to go through it all properly, you know? To go through it now on my own is - I can't even bear the thought of it. But there's − I don't see why there would be any reason why not. 26 In accordance with paragraph 14.5 of Direction No. 79, the Tribunal considered the extent of impediments to the applicant if removed from Australia at [119]-[125] of its decision: Extent of impediments if removed (paragraph 14.5) 119. The Direction requires that a decision-maker must consider the extent of impediments on a person in re-establishing themselves and maintaining basic living standards in their home country, in the context of what is generally available to other citizens of that country. The Tribunal must take into account VCBP's age and health, any language or cultural barriers and any social, medical or economic support available to him in the United Kingdom. 120. The Tribunal notes that VCBP has been diagnosed with epilepsy which is not completely stable. The Tribunal, under section 33 of the AAT Act, has informed itself about support for persons with epilepsy under the National Health Service (NHS), the United Kingdom's universal health system. The NHS on-line information sheet relating to sodium valproate states: Can I get epilepsy medicines for free? If you have epilepsy, you're entitled to free prescriptions for all your medicines (not just your epilepsy ones). To claim your free prescriptions you'll need a medical exemption certificate. The application form for the medical exception certificate is called FP92A. You can get this from your doctor's surgery. You will need to fill in the form, then your doctor will sign it and send it off. 121. It would appear to the Tribunal that, should VCBP be repatriated, being a citizen of the United Kingdom he would be able to avail himself of the free medicine scheme referred to in this information sheet. The Tribunal notes that the NHS also has methadone programmes available for eligible persons and, as VCBP has been deemed to be eligible for such treatment in Australia, he could present this documentation in the UK. 122. It is clear that VCBP has some mental health challenges from his drug addiction and perhaps added to by the childhood trauma and it is noted that the NHS has a range of professional mental health support services to which he would have access, as a UK citizen. 123. VCBP has been in Australia continuously since the age of 19, some 26 years. This is almost all his adult life. The Tribunal accepts, as did the Respondent in submissions, that there would be difficulties in him re-establishing himself. WC states in his written statement (Exhibit A5) that he has siblings in the UK but that he has had no contact with them for years and there was a falling out with some of them. The consistent evidence from family witnesses was that any relatives in Scotland are distant. 124. The Tribunal notes the evidence from EDB that Perth, the Scottish city they grew up in, has a significant drug culture. However, if VCBP is deported, he is not being deported to his town of origin. He would be able to re-establish himself in any constituent country of the United Kingdom. 125. The Tribunal finds that this consideration weighs in favour of the mandatory cancellation, but not strongly so. 27 The complaint in the applicant's first ground of review centres on the Tribunal's finding at [122] that "the NHS has a range of professional mental health support services to which he would have access, as a UK citizen". 28 As alluded to in its reasons, the Tribunal was "not bound by the rules of evidence" and could instead "inform itself on any matter in such manner as it thinks appropriate": s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal evidently referred to publicly available information about the National Health System in the United Kingdom to inform itself about the access that he would have to mental health services as a UK citizen. These materials were "rationally probative" of the factual conclusions reached by the Tribunal at [122]: see Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [19] per Logan J. 29 The applicant appeared to contend in his first ground of review that the Tribunal fell into jurisdictional error because it did not make additional enquiries about those matters. However, the applicant did not explain what he says the Tribunal should have done differently, or what additional enquiries he says the Tribunal should have made. And, it is well established that the Tribunal is not required to make its own enquiries in order to discover whether an applicant's case might be better put or supported by other evidence: see Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575 at [36] per Keane CJ and [49] per Emmett J. See also Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992; 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ. 30 In this case, there was material that was sufficient for the Tribunal to satisfy itself that "the NHS has a range of professional mental health support services to which [the applicant] would have access, as a UK citizen". The Tribunal was under no obligation to make further or different enquires about the treatment or support services that would be available to the applicant in the United Kingdom. 31 For these reasons, the first ground of review raised by the applicant must be dismissed.

Ground Two - Preferencing of earlier psychologist report 32 The second ground of review contended by the applicant was as follows: The Tribunal's decision is affected by jurisdictional error because the Tribunal made consequential and substantial findings of fact by preferencing an earlier report by Dr Aaron Cunningham dated 9 April 2018 ('2018 Report') and failing to consider the report of Dr Donna Gee dated 5 February 2019 ('2019 Report'). This is despite the fact that the 2018 report was prepared before the Applicant was able to get treatment for his mental health issues, stemming from the sexual assault perpetuated on him as a child. In failing to preference the 2019 Report, the Tribunal thereby failed to take into account critical evidence which could have informed its assessment of the Applicant's risk of future offending and other primary considerations. 33 This ground relates to the Tribunal's consideration of the "[p]rotection of the Australian community", being a primary consideration under Direction No. 79. As part of that consideration, paragraph 13.1.2 of Direction No. 79 requires the Tribunal to have regard to the nature of the harm should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the non-citizen engaging in such conduct. 34 In relation to these considerations, the Tribunal: (a) noted the Minister's submission that the applicant's recent offending was the result of his inability to control his anger, and his drug use: AAT Reasons at [85]; (b) noted that, although the applicant was drug-free at the time of the Tribunal hearing, his ability to remain drug-free had not been tested in the community: ibid at [86]; (c) noted that, although the applicant had given assurances that he would not return to drug use or offending when his visa was cancelled in 2016, he had broken those assurances: ibid at [86]; (d) accepted that the applicant had been sexually abused when he was aged around 11 or 12, but did not accept that this was the sole cause of the applicant's drug use or PTSD: ibid at [93]-[95]; (e) noted that the applicant had committed a serious domestic violence offence only months after having the 2016 cancellation of his visa revoked: ibid at [96]; and (f) noted that the applicant's admission that he still had an anger-management problem: ibid at [96]. 35 In light of these matters, the Tribunal concluded that the risk of the applicant re-offending was high (ibid at [98]) and that the consideration of the protection of the Australian community weighed strongly against revoking the cancellation of the visa: ibid at [99]. 36 In the course of reaching this conclusion, the Tribunal considered the evidence of various psychologists to have examined the applicant, namely: (a) Mr Jeffrey Cummins, a forensic and clinical psychologist who assessed the applicant on 16 May 2016 and produced a report of the same date; (b) Dr Aaron Cunningham, a forensic psychologist who examined the applicant by video link on 9 April 2018 resulting in the production of a report dated 10 April 2018; and (c) Ms Gee, who, as explained above, produced two reports - dated 23 July 2018 and 5 February 2019. 37 Relevantly for current purposes, the Tribunal considered the evidence of the psychologists in the context of the risk of the applicant reoffending: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2) … 87. The Respondent submitted that VCBP did not mention any childhood sex abuse in the 2016 process and drew the Tribunal's attention to the report of Mr Jeffrey Cummins, forensic and clinical psychologist, who assessed the Applicant on 16 May 2016 and took a history from VCBP. In the report (GD, p 659), Mr Cummins recorded: He stated he was never the victim of any physical domestic violence during his upbringing. He has never been the victim of any sexual abuse. 88. Mr Cummins also reported that VCBP told him that he decided to turn his life around as a result of his offending behaviour of September 2015. 89. Dr Aaron Cunningham, forensic psychologist, examined VCBP on 9 April 2018 by video link (GD, p 151). Dr Cunningham accepted VCBP's evidence that he was sexually abused by his soccer coach and reported that VCBP said his mother: …confronted the coach. However VCBP begged and pleaded with her not to take the matter further. As a result the perpetrator did not face any charges and VCBP did not receive any support. He continues to have distressing recollection of this abuse. 90. Dr Cunningham said (GD, p 153): In my opinion VCBP presents with a diagnosis of Post Traumatic Stress Disorder. In my opinion VCBP's Post Traumatic Stress Disorder was predisposed by the violence in his childhood home. He was exposed to physical violence from his father. He experienced additional trauma when he was sexually abused at the age of 11. 91. The Applicant submitted to the Department a news item from the Scottish Daily Record (GD, p 176) about the gaoling of a man who Perth Sheriff Court found had sexually abused a number of victims, including setting up a football team and abusing young players in the 1980s. 92. The Tribunal has carefully considered the oral evidence of the Applicant and the evidence and reports of Ms Gee and the report of Dr Cunningham. There are inconsistencies, as set out above, in what VCBP told Mr Cummins in 2016 and what he subsequently told the other two psychologists in 2018. It is reasonable for the Respondent to submit that it was incongruous that VCBP had not raised his childhood sexual abuse before, not only when his visa was cancelled in 2016 but in pleas of mitigation at Court. 38 The applicant contended that the Tribunal failed to consider Ms Gee's second report. In order to establish that the Tribunal fell into jurisdictional error by failing to consider the report, the applicant was required to show, first, that the Tribunal in fact failed to consider the report and, second, that the report, or an aspect of it, was of sufficient importance that the failure to consider it indicated that the Tribunal failed to reach the required state of satisfaction in s 501CA(4), or failed to consider the representations as a whole: see, generally, Navoto v Minister for Home Affairs [2019] FCAFC 135 at [84]-[89] per Middleton, Moshinsky and Anderson JJ. 39 Contrary to the submission of the applicant, the Tribunal did not fail to consider Ms Gee's second report. This is evident from the Tribunal: (a) expressly referring to that report, as well as Ms Gee's previous report: AAT Reasons at [46]-[47]; (b) specifically noting Ms Gee's evidence about the applicant's opioid use disorder: ibid at [85]; (c) stating that it had carefully considered both reports of Ms Gee: ibid at [92]; and (d) identifying Ms Gee's second report as one of the applicant's exhibits tendered at the hearing: ibid in Appendix 2. 40 Ultimately, however, in deciding that the applicant presented a high risk of re-offending, the Tribunal was influenced by matters other than those dealt with by Ms Gee, including, in particular, the fact that the applicant had re-offended so soon, and seriously, after the revocation of the cancellation of his visa in 2016. 41 The applicant also appeared to contend that the Tribunal fell into jurisdictional error because it referred at [89]-[90] of its reasons to specific passages of Dr Cunningham's report rather than Ms Gee's reports. However, it is not immediately clear how these passages represent a preferencing of Dr Cunningham's evidence over that of Ms Gee in a manner that damaged the merits of the applicant's case for revocation of his visa cancellation, let alone a preferencing of evidence so irrational so as to amount to a jurisdictional error. 42 There is nothing in Ms Gee's second report that is of such significance that the Tribunal's decision not to specifically mention it, and instead refer to the report of Dr Cunningham, would amount to a jurisdictional error. In particular: (a) the report includes the same diagnoses as Ms Gee's previous report, which diagnoses were specifically referred to by the Tribunal: AAT Reasons at [47]; (b) despite having specifically been asked to give an opinion about the likelihood of the applicant re-offending if he were released into the community, Ms Gee did not offer an opinion about that matter; and (c) although the report does seem to attribute the applicant's PTSD to the sexual abuse, rather than the domestic violence, the Tribunal accepted that the sexual abuse contributed to the PTSD: ibid at [95]. 43 To the extent the applicant submits that the Tribunal should have given greater weight to Ms Gee's report, that submission also does not disclose jurisdictional error. It was a matter for the Tribunal to determine the weight to give to the material before it: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36 per Brennan J. 44 For these reasons, the second ground of review raised by the applicant must be dismissed.

Conclusion 45 For the reasons given above, the applicant's application for judicial review will be dismissed. The applicant will pay the first respondent's costs of and incidental to the application. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson.