FEDERAL COURT OF AUSTRALIA

Hua v Minister for Home Affairs [2019] FCAFC 158

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs, to be assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from orders made by a single judge of this court on 12 February 2019, dismissing the appellant’s amended originating application for judicial review of a decision of the respondent (by his delegate, the Assistant Minister) (the Minister) not to revoke the mandatory cancellation of the appellant’s Class BB Subclass 155 Five Year Resident Return visa pursuant to s 501CA of the Migration Act 1958 (Cth) (the Act).

2    The appellant is a citizen of Vietnam. He has normally resided in Australia since 18 September 1987, and had been the holder of a Class BB Subclass 155 Five Year Resident Return visa, until it was cancelled on 4 January 2016. It was cancelled under the mandatory cancellation provision in s 501(3A) of the Act, which applied because he had been sentenced to a term of imprisonment of 12 months or more, and he was serving a sentence of imprisonment on a full-time basis.

3    The appellant has an extensive criminal record dating back 30 years. As the primary judge recorded (Hua v Minister for Home Affairs [2019] FCA 94 at [1]):

In 1989 he was convicted of armed robbery and thereafter made regular appearances in the Magistrates and County Courts, with convictions for theft, burglary, assault, trafficking heroin and the handling of stolen goods, to name but a few. On 30 July 2014, he was convicted in the County Court of Victoria of arson, reckless conduct endangering life, making threats to kill, recklessly causing injury, intentionally destroying property, theft and cultivation of cannabis. He was sentenced to a cumulative total of three years and six months imprisonment.

4    The primary judge summarised the offending that led to his imprisonment as follows (at [5]):

On 5 November 2013, the applicant carried out what the sentencing judge in the County Court described as an “extreme and somewhat callous act” which was “inherently dangerous”. Earlier, on 21 October 2013, he had gone to the home of his wife and demanded cash, a bank card and a mobile phone. When these were not produced he threatened to “burn the house down with her in it”. The police were called to intervene. Then, on 5 November 2013, the applicant and his wife, who was at the time pregnant, were arguing at home when the wife asked their son to call the police. The applicant took a large knife from the kitchen and said “if you dare call the police I’ll kill you and burn you alive”. The applicant then poured petrol throughout the home which he then lit. The wife asked the applicant to save one son (who has Down syndrome) before running to a bedroom to save their daughters, aged five and three. The wife and daughters could not escape as their bedroom window was covered with external bars. The house was burning. They were trapped. One son pleaded with the applicant to help but he made no attempt to do so. Thankfully, the fire brigade rescued the wife and the daughters. The applicant and one son suffered burns. The wife required treatment for smoke inhalation. It was accepted that the applicant’s poor mental health (he was a diagnosed schizophrenic) contributed to his offending.

5    The appellant requested revocation of the cancellation on 26 January 2016 (under s 501CA(4) of the Act). He provided a number of supporting documents, including an undated letter from a Prison Officer Leggett, who was the appellant’s case manager when he was held at the Hopkins Correctional Centre at Ararat in Victoria between May 2015 and his release in 2017.

6    On 1 February 2016, the appellant’s representatives provided a written submission.

7    On 4 August 2017, the Department invited the appellant to provide further information about a “Client Incident Report” dated 31 May 2017 concerning an incident in which the appellant hit another detainee in the head when he was detained (as he is still detained) at an immigration detention centre.

8    Further information was provided by the appellant’s lawyers by way of a letter dated 20 October 2017. Among that material was a statutory declaration made by the appellant in which he said, among other things, as follows:

Since I have been in prison, I have thought very hard about what happened and I have learned strategies for dealing with my anger problem. I am very sorry for breaking the Australian law; I have felt shame, guilty and remorse to now. I promise that I will not future commit a criminal offence again in Australia. I am hoping if the Minister would consideration of my circumstances during the time of my offences that I was not in my right state of mind.

(Errors in original).

9    The letter also contained a submission about the incident in the detention centre, as follows:

I am instructed that this is a one-off incident. This incident occurred during a time when Mr Hua was experiencing a lot of stress and anxiety due to the cancellation of his visa and his unknown future.

In relation to this incident, Mr Hua instructs that he and other Vietnamese detainees were using the computer first when the victim asked to use the computer for 10 minutes only then they could resume use of the computer. Mr Hua and other detainee obliged and went to play pool for an hour. When they wanted to use the computer once again the victim refused. Mr Hua sat down next to the victim and the victim was very rude to Mr Hua and threatened him. I am instructed that the victim continued to be very rude to Mr Hua and goaded Mr Hua daring him to hit him repeatedly before Mr Hua did actually hit him and the victim hit him back.

I refer to the letter by Prison Officer K Leggett that was previously provided that verified that there were no incident reports involving Mr Hua while he was at the Hopkins Correctional Centre. Mr Leggett reported that Mr Hua was quiet, polite and courteous to the staff.

(Emphasis in original).

The Minister’s decision

10    The primary judge summarised the Minister’s decision in terms which we adopt, as follows. The Minister:

(1)    Had regard to the submissions made by the appellant and on his behalf.

(2)    Had regard to the best interests of the appellant’s children, including the son with Down syndrome, and found that their needs supported revocation of the cancellation decision. In the face of all that had happened, his wife and children did not want the appellant to be deported.

(3)    Considered that the expectations of the Australian community were that the appellant should be denied a visa.

(4)    Decided that his wife and family would experience “emotional, financial and practical hardship” if the appellant were to be deported to Vietnam. It was observed that one son in particular had become very depressed following the making of the cancellation decision and had burnt the family home down.

(5)    Took into account the impediments the appellant would face in Vietnam, including the emotional hardship of being away from his family.

(6)    Considered that the appellant’s criminal history was very serious.

(7)    Analysed the risk of harm to the Australian community if the appellant were to remain in Australia, concluding at [69] that there was an “ongoing likelihood” that the appellant would reoffend and that, if he did so “in a similar manner”, it could result in “physical and/or psychological harm” to the Australian community.

11    The Minister decided not to revoke the mandatory cancellation, because the risk to the community and protection of it outweighed the other factors.

12    The grounds of appeal before the primary judge focused on particular paragraphs of the Minister’s reasons. They are also the focus of this appeal. It is convenient to set them out here:

54.    I have considered whether [the appellant] poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps [the appellant] has undertaken to reform and address his behaviour. I have also taken into account [the appellant’s] overall conduct in the custodial and non-custodial environment, and his insight into the offending.

…

60.    I consider that remorse is a salient part of the rehabilitation process. While [the appellant] has not expressed remorse directly to the Department, I have had regard to the submissions from [the appellant’s wife] and his agent that he regrets his actions and the hurt he has caused his family. I have also considered the sentencing remarks of 30 July 2014 in which the judge noted that [the appellant] had expressed some remorse and that schizophrenia ‘distorts a person’s capacity to express appropriate remorse’.

…

65.    I have weighed these submissions against [the appellant’s] long history of drug abuse and offending, and his recent conduct in the custodial environment, where I note he assaulted a fellow detainee by punching him in the side of his face after an argument about computer use. His agent submits that [the appellant] was under ‘a lot of stress and anxiety due to the cancellation of his visa and his unknown future’ and was ‘goaded’ by the victim. This assault causes me hesitation in accepting submissions that [the appellant] has learned to deal with anger, and indicate an ongoing inability to manage such emotions in a pro-social way. I consider that [the appellant] could expect to experience stress in the community, particularly in raising his six minor children, dealing with Johnny’s special needs, and rebuilding the family home. The before me does not satisfy me that [the appellant] can handle such stress without resorting to drugs and possibly violence.

The primary judge’s decision

The statutory declaration point

13    The appellant contended below that the Minister “was unaware of, or had no regard to,” the statutory declaration by the appellant that had been submitted to the Minister to the effect that he was genuinely remorseful, and in doing so had overlooked a piece of evidence that was sufficiently significant, such that the omission amounted to jurisdictional error.

14    The primary judge was not satisfied that the Minister had overlooked the statutory declaration, including because he considered that the reference to an absence of “direct remorse” in the Minister’s reasons “should be read as a reference to the contents of the applicant’s actual request for revocation of the Cancellation Decision made pursuant to s 501CA(4)(a) on 26 January 2016”: at [27].

15    In the alternative, the primary judge held that any error was not material because the Minister “clearly understood that the applicant was remorseful, and took that into account”: at [28].

The prison officer letter point

16    The appellant’s other ground below was that the Minister’s failure to refer to the letter from Prison Officer Leggett, mentioned above at [5], about his good behaviour when he was imprisoned at the Hopkins Correctional Facility, was also a failure that amounted to jurisdictional error. That letter read:

I am sending this behavioural report to you in regards to the above mentioned prisoner. … His behaviour while he has been here at HCC has seen no incidents recorded against him. [The appellant] does not associate with known trouble makers within the prison and is very quiet. He is polite and courteous to staff, fulfils any requests that staff make of him and is of no management concerns at all.

17    The primary judge found that the letter had not been overlooked, and that the better explanation for its omission was that the Minister “did not find the contents of [it], which expressed conclusions in very general terms and was significantly out of date (by approximately one and a half years), to be material and that is why its contents were not mentioned in the reasons for decision”: at [30].

18    Alternatively, the primary judge found that if the letter had been overlooked, the omission was not a jurisdictional error: at [31].

This appeal

The grounds of appeal

19    The grounds of appeal from the orders of the primary judge are as follows:

1.    The learned primary judge erred because, on its proper construction, the second sentence of the reasons of the Minister for Home Affairs dated 28 February 2018 at paragraph [60] were not to be read as referring solely to the applicant’s request for revocation, but instead was an erroneous statement about the state of affairs existing at the date of the Decision.

Particulars

1.    The applicant contended that, in making his decision under s 501(CA)(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant’s visa, the Minister had misunderstood the evidence in that he concluded that the applicant “had not expressed remorse directly to the Department” when, in fact, the applicant had directly expressed remorse in a statutory declaration that formed part of his representations for the purposes of s 501(CA)(4) of the Act.

2.    The learned primary judge held that, on its proper construction, the phrase “had not expressed remorse directly to the Department” was to be read as “a reference to the contents of the applicant’s actual request for revocation of the decision made pursuant to s 501(CA)(4)”.

3.    In doing so, the learned primary judge erred because, on its proper construction, the phrase “had not expressed remorse directly to the Department” was to be given its literal meaning, which was that as at the time of the decision, the applicant had made no direct expression or remorse to the Department.

2.    The learned primary judge erred because he conflated the question of whether the Minister had overlooked certain evidence with the question of whether the Minister had, as a matter of substance, had regard to that evidence.

Particulars

1.    The applicant contended that, in making his decision under s 501(CA)(3) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant’s visa, the Minister had failed to have regard to substantial evidence, being direct expressions of remorse made by the applicant in a statutory declaration of him provided to the Department in the course of representations made by the applicant pursuant to s 501(CA) of the Migration Act 1958 (Cth).

2.    The primary judge reasoned that because the Minister had relied in his decision on material from the same paragraph of the statutory declaration in which the applicant had made his expression of remorse and there was no direct evidence before that the Minister had not read the statutory declaration, that the Minister had not overlooked the evidence of remorse.

3.    The learned primary judge then held that, as set out in the particulars to Ground 1 above, on its proper construction, the phrase “had not expressed remorse directly to the Department” was to be read as “a reference to the contents of the applicant’s actual request for revocation of the decision made pursuant to s 501(CA)(4)”. For the reasons given above, the primary judge was wrong to do so.

4.    As a consequence of the above reasoning, the primary judge concluded, in effect, that because the Minister had relied on other material from the same paragraph of the statutory declaration and there was otherwise no evidence that the Minister had not read the decision, that the Minister had not overlooked the applicant’s evidence and had, therefore, as a matter of substance, had regard to it.

5.    Even if the primary judge were correct to conclude that the Minister had read the material, that did not answer the question of whether the Minister had, as a matter of substance, had regard to it. That conclusion was not open on the material before the primary judge.

3.    The learned primary judge erred by holding that if the Minister misunderstood a certain aspect of the applicant’s remorse, that error was not significant or material.

Particulars

1.    The primary judge held that, even if he was wrong in the conclusions described in the particulars to grounds 1 and 2 above, the error was not significant or material: at [28].

2.    That conclusion was wrong in circumstances where the Minister determined that he would treat remorse as a “salient part of rehabilitation” and where, having done so, a direct expression of remorse in the form provided by the applicant was capable of persuading the Minister to place greater weight on remorse in his overall assessment of the applicant’s rehabilitation and thereby affecting the Minister’s overall treatment of that question, and the degree to which it would attract weight when balanced against other considerations.

4.    The learned primary judge erred by failing to find that the Leggett Letter was overlooked by the Minister and not, as a matter of substance, considered.

Particulars

1.    The primary judge held that the Minister had not overlooked the Leggett Letter and, instead, had concluded that it was not material: at [30].

2.    That conclusion was wrong in circumstances where the Minister had decided to consider the applicant’s behaviours in custodial settings at large, and the only evidence bearing on that question was the material in fact relied on by the Minister (see the Minister’s decision at [65]) and the Leggett Letter.

3.    The primary judge ought to have found that the Minister failed to have regard to the Leggett Letter which was substantial and consequential evidence on the question of the applicant’s behaviour in the custodial environment.

5.    The learned primary judge erred by reaching a state of satisfaction that, if the Leggett Report was overlooked, it would have made no difference to the result, because that finding was not open to the primary judge and constituted an impermissible merits review of the decision.

Particulars

1.    The primary judge “did not hold” that the contents of the Leggett Letter “might have caused the Minister to reassess his findings concerning the risk that the applicant would offend” because “the Leggett Letter was subsumed by the incident which had taken place much more recently in 2017”.

2.    That path of reasoning was impermissible. The primary judge was not permitted to consider how the Minister might have weighed one piece of evidence against another, nor was he permitted to reach a conclusion about how the Minister might have weighed that evidence.

3.    In doing so, the primary judge engaged in an impermissible merits review.

20    The appeal was argued on the basis that grounds 1-3 raise a single question, viz “whether the appellant had expressed remorse directly to the Department by way of the statutory declaration … and, if so, what consequence follows”. See the appellant’s outline of submissions dated 8 August 2019 at [20].

The appellant’s submissions

21    The appellant’s case that the primary judge erred was put in these terms in counsel’s outline of submissions:

First, the primary judge declined to infer that the Minister had failed to take into account the Refugee Legal letter of 20 October 2017 and the appellant’s statutory declaration because it was apparent from the reasons that Minister was aware of those documents and had regard to them. However, mere awareness of the documents does not establish the required “reality of engagement” with the appellant’s representations. As such, the question was not whether the Minister had overlooked the documents, but whether the Minister had discharged his statutory obligation to consider whether the required state of satisfaction was met by reference to the material presented in the representations’ [citing Hay v Minister for Home Affairs [2018] FCAFC 149 at [11]]. The Minister, being aware of the documents, nonetheless failed to understand that the appellant had made a direct expression of remorse, or to take that expression of remorse into account, and thereby failed to discharge his statutory obligation to form (or not) the required state of satisfaction by reference to the materials presented in the representations.

22    The submission continued as follows:

The primary judge’s construction also fails to explain why the Minister, having identified the salience of remorse and taking the trouble to note that the appellant had not express (sic) remorse directly to the Department in his actual request for revocation of the Cancellation Decision made pursuant to s 501CA(4)(a) on 26 January 2016, then had regard to secondary expressions of the appellant’s remorse but not to the principal evidence of that remorse - being the appellant’s statutory declaration of October 2017.

Properly construed, the Minister’s reasons should be read as evidencing that the Minister mistook the facts and proceeded on the erroneous basis that the appellant had not directly expressed remorse to the Department.

(Emphasis in original).

23    The appellant also contends that the primary judge erred by holding, in the alternative, that any error, if there be one, was not material and therefore did not rise to the level of jurisdictional error. The submissions to that effect were as follows:

The Minister was aware of the appellant’s submission, in general terms, that he was remorseful. So much follows from paragraph 12 of the Minister’s reasons, and the discussion in paragraph [60] of those reasons. But it was the Minister who elevated the significance of remorse by declaring that “remorse is a salient part of the rehabilitation process”. In giving content to the question of rehabilitation (in part) by reference to remorse, the Minister signalled the importance that he intended to attach, in the deliberative process, to such remorse. In what the Minister understood to be an absence of direct evidence from the appellant, he proceeded to assess this factor by reference to secondary expressions of remorse and a posited inability on the part of the appellant to express remorse by reason of his schizophrenia. The Minister did not take into account the best evidence on this question, which was that of the appellant himself.

The Minister’s error was material. The appellant’s expression of remorse, made by way of a statement sworn under the pain and penalties of perjury, may have affected the Minister’s assessment of the degree to which the appellant was remorseful (and the degree to which the appellant was capable of expressing such remorse) and the weight to be attached to the appellant’s remorse when considering the risk the appellant posed to the Australian community. If the Minister had reached a different conclusion about either of those matters the Minister may have reached a different conclusion on the degree of risk to the Australian community posed by the appellant or may have placed different weight on his conclusion as to that risk when evaluating how to exercise the discretion conferred by s 501CA(4). If any of these things had occurred, the discretion may have been exercised differently.

(Emphasis in original).

Consideration of statutory declaration grounds of appeal

24    We accept that it is more likely than not, in all the circumstances, that the Minister did overlook the fact that the appellant had given “direct” evidence of his remorse in the form of the statutory declaration referred to at [8] above. In our view, however, that omission was not material.

25    In our view, the fundamental premise that underpins the submissions in relation to grounds 1-3, namely that a personal, sworn statement of remorse is the “best” evidence of remorse, is a false one, at least in the circumstances of this case. During the course of her oral submissions, counsel for the appellant submitted that the “best” evidence of remorse is that which comes from the person claiming to be rehabilitated, and that the Minister was wrong to give weight instead only to the “secondary” evidence of others that the appellant was genuinely remorseful. During her oral submissions, counsel for the appellant put the contention as follows:

And this, in my submission, is also why the error, if it be an error, was material, because a direct expression of remorse in the words of the appellant, in a detailed statutory declaration that set out the offending, his experience of remorse in several different contexts, remorse for breaking Australian law, but also remorse for what he did for his family, is the best evidence of, one, the appellant’s remorse and, two, the genuineness of that remorse.

26    We do not accept that submission. In our view, the wife’s statement of her “true belief” that he has “changed” and that he will not offend again is the “best evidence” of his remorse. Here, the appellant’s wife (and children) were the victims of what, on any view, were horrendous acts of violence that led to the appellant being imprisoned for three and a half years.

27    It seems to us a much more powerful fact in favour of the notion that the appellant is remorseful not so much that he says he is, but that his wife, the victim at his hands of a serious crime of violence, says he is. In the circumstances, evidence of a strongly held belief in the genuineness of a person’s remorse is likely to be more probative or persuasive than the person’s own claim, which – without more – might ordinarily be regarded as self-serving. And the impact of that other person’s expression of belief is all the more powerful when, as is the case here, that person was a victim of the offender in question.

28    As is apparent from his reasons, the Minister expressly took into account in assessing the appellant’s claim to be rehabilitated the appellant’s wife’s statement that she “truly believe[s] that he will not ever repeat any offences again”. At [64] of his reasons, the Minister says:

I am aware that Mr Hua’s family believes that he has changed. Ms Kha [the appellant’s wife] states that ‘I truly believe that he will not ever repeat any offences again’. Mr Hua’s sisters submit that he has reflected on his actions, acknowledged his wrong-doing, and believe his family ‘can change & encourage him to become better & to be mentally healthier’…

29    It is thus quite apparent, as the primary judge found, that the Minister was well aware of the appellant’s claim to be remorseful and rehabilitated. It is also clear that the Minister accepted as relevant the appellant’s wife’s statement of belief, and those of his sisters, that he is remorseful and will not reoffend. On a fair reading of the Minister’s reasons he implicitly accepted that the appellant was remorseful, and we do not consider the Minister’s failure to have regard to his “direct” expression of remorse to be material to the decision.

30    Further, the Minister considered the risk the appellant posed to the Australian community by reference to two overarching considerations: (a) any mitigating or causal factors in his offending; and (b) any steps the appellant had taken to reform and address his offending behaviour. The Minister addressed the mitigating or causal factors in the appellant’s offending under the subheading “Contributing factors”. Then, the Minister turned to consider the steps the appellant had taken to address his offending conduct, doing so under the subheading “Rehabilitation”. The Minister’s consideration in relation to the appellant’s remorse was only one part of the Minister’s deliberation under that subheading, which included consideration of the appellant’s psychiatric condition and the likelihood of his complying with a mental health treatment regime; his not having committed any offences between August 1999 and October 2013; his ability to not reoffend and to comply with his mental health treatment regime and to abstain from using drugs; and the belief of his family and friends that he would not reoffend.

31    The Minister weighed those considerations against the appellant’s long history of drug abuse and offending, including the appellant’s recent conduct in immigration detention where he had punched a fellow detainee; the fact that his family was around him during the period in which his offending behaviour occurred and that he had also offended against his family; his previous breaches of suspended sentences, community based orders, intensive corrective orders and a judicial order designed to protect his family from his offending; and that he had been warned by the Department in April 2012 that any further offending may lead to his visa being cancelled. The Minister found that there was an ongoing likelihood that the appellant would reoffend and that the Australian community could therefore be exposed to significant harm. The Minister concluded that the appellant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the other considerations.

32    On a fair reading of the Minister’s reasons the appellant’s remorse was just one part of the Minister’s multifactorial consideration of the appellant’s rehabilitation prospects, which proceeded on the basis of an implicit acceptance that the appellant was remorseful. That consideration was itself only just one part of a multifactorial consideration of the factors relevant to the risk to the Australian community through his reoffending.

33    In all the circumstances the Minister’s failure to consider the appellant’s “direct” expression of remorse was, it seems to us, a matter of no great significance to his decision, that is, it is not material. In our view, if the Minister had regard to the appellant’s statutory declaration it could not realistically have resulted in a different decision. See Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 at 263, [45].

34    There is therefore no merit in grounds 1-3.

Consideration of the prison letter grounds of appeal

35    Grounds 4-5 were dealt with by the parties as raising the one or two part question, namely whether the Minister failed to have regard to the letter from Prison Officer Leggett, and if so, whether that failure was material.

36    The Minister made it clear that he had taken into account the appellant’s “overall conduct in the custodial and non-custodial environment”. As the Minister said at [54] of his reasons, “I have considered whether [the appellant] poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps [the appellant] has undertaken to reform and address his behaviour. I have also taken into account [the appellant’s] overall conduct in the custodial and non-custodial environment, and his insight into the offending.” (Emphasis added).

37    The fact of the matter is that the only evidence before the Minister of the appellant’s conduct in the “custodial environment” was the Leggett letter. And the only evidence of the appellant’s conduct in the “non-custodial environment” was the incident report about the appellant assaulting another detainee in the detention centre. It follows inexorably, once those facts are accepted (as they must be), that the Minister had regard to the Leggett letter.

38    Grounds of appeal 4-5 thus fall away.

39    In any event, the appellant has not shown that the primary judge was wrong to conclude that the better explanation for the Leggett letter not being referred to was that the Minister did not consider it material. As the Minister’s counsel submitted, a reasonable and rational explanation for not referring to the letter was that it had been overtaken by events. The (undated) letter must have been provided by 26 January 2016, in order for it to have been included with the appellant’s initial request for revocation. What the Minister regarded as material, and which he obviously wanted to give appellant a chance to make a submission about, was the incident that occurred in immigration detention on 31 May 2017.

Disposition

40    The appeal must therefore be dismissed with costs.

Associate:

Dated:    10 September 2019