Federal Court of Australia

Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

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.

Associate:

Dated:    1 October 2020

REASONS FOR JUDGMENT

WHITE J:

25    The question on this appeal, as indicated by the respective reasons of McKerracher J and Stewart J, is whether the Minister gave proper consideration to the effects on the appellant’s mental health in the event that his visa remains revoked and he is deported to the United Kingdom.

26    The appellant’s personal circumstances and relevant passages in the Minister’s reasons and the decision of the primary Judge are contained in the respective reasons of McKerracher J and Stewart J. So also are the applicable statutory provisions and relevant extracts from the authorities. It is not necessary for me to repeat them.

27    One cannot help but be struck by the evident harshness of the Minister’s decision not to revoke the cancellation of the appellant’s visa. Likewise, the persuasive manner in which the appellant made his submissions on the hearing of the appeal was impressive. Nevertheless, I am not persuaded that there is any error in the decision of the primary Judge. I respectfully agree with the reasons of McKerracher J for that conclusion.

28    I also consider that the following matters provide some further context supporting the conclusion of the Judge that the Minister did have appropriate regard to the appellant’s submissions.

29    The Department provided the Minister with a submission concerning the possible revocation of the decision to cancel the appellant’s visa. That submission was a substantial document and included a summary of the representations made by and on behalf of the appellant under the following headings:

    Best interests of minor children;

    Expectations of the Australian community;

    Strength, nature and duration of ties to Australia;

    Impediments to return;

    The nature and seriousness of the conduct; and

    Rehabilitation and mitigating circumstances.

30    In the section headed “Impediments to return”, the Departmental submission stated:

[62]    Mr SWANNICK has the following health concerns: hypercholesterolemia, self-harm, amphetamine abuse, chronic alcohol use, depression, marijuana abuse and he has previously suffered episodes of drug-induced psychosis Attachment P.

[63]    Mr SWANNICK has seen a radiologist in relation to reduced sexual function and shrunken testes (sic) Attachment AW.

[64]    Mr SWANNICK’s father is very concerned for his son’s mental health, both now while he is in detention and if Mr SWANNICK returns to the United Kingdom Attachment AR. Mr SWANNICK’s mother fears he will end up in a mental institution or kill himself if he is removed Attachment AQ.

[65]    Mr SWANNICK is also concerned about his mental health as he has spent many years addressing his depression and anxiety Attachment AP.

[66]    Mr SWANNICK received counselling and takes medication for depression and anxiety Attachment H. When Mr SWANNICK first arrived in prison he had poor coping skills and did not deal with change or stress effectively. He also has a history of self-harm. Mr SWANNICK has achieved significant improvements in his mood regulation and anxiety management through counselling and medication Attachment P. Mr SWANNICK’s usual medications include Fluoxetine (an anti-depressant), Propranolol (for his heart condition), Atorvastatin (for cholesterol) and the painkillers paracetamol and Ibuprofen Attachment K.

[67]    Mr SWANNICK has adjustment disorder with anxious mood (disorder) and submits that he has been feeling down, depressed and anxious. Mr SWANNICK submits that he is not experiencing suicidal thoughts, and is currently anxious regarding his immigration situation and has sought medication and counselling Attachment AU, AX.

[68]    Mr SWANNICK is very scared of returning to the United Kingdom Attachment H. Mr SWANNICK has spent his entire adolescent and adult life in Australia. All of his social, employment, educational and familial ties are in Australia. Mr SWANNICK has no real knowledge of life in the United Kingdom, and at the age of 47, would face considerable hardship re-establishing himself without family support or other connections. Mr SWANNICK fears homelessness and a serious decline in his mental health if he is removed from Australia Attachment K. While Mr SWANNICK may have relatives in the United Kingdom, he needs to remain in Australia where he can receive the love and support from his family Attachment AA.

[69]    Given the length of time he has lived in Australia, his age and the fact he has never left Australia, Mr SWANNICK will have serious and substantial difficulties assimilating to a new country Attachment K.

[70]    Mr SWANNICK has turned his mind to the prospect of starting a new life in the United Kingdom and has listed a number of matters he would need to address including obtaining a bank account and drivers licence, and finding a way to contact his friends and family. Mr SWANNICK considers a return to the United Kingdom to be overwhelming and he is unsure where to start as he has not been to the United Kingdom in 45 years Attachment AN.

[71]    Mr SWANNICK states the United Kingdom is not his home. He considers Australia to be his home. Mr SWANNICK requests that he please be allowed to remain in Australia as he ‘loves it here’ Attachment AP.

(Emphasis in the original)

31    In effect, the Departmental submission summarised the representations on the issue of impediments and referred the Minister to the attachments containing the representations or the information. It is also apparent that [55]-[63] of the Minister’s reasons (which are set out in the reasons of Stewart J) correspond closely with [62]-[70] of the Departmental submission.

32    The manner in which the Minister expressed himself in [55], [57] and [59]-[63] in particular of his reasons suggests that he considered the attachments containing the information and submissions to which the Department had referred him. That is to say, the Minister’s manner of expression suggests that he gave active consideration to the primary documents containing the submission or information on which the appellant relied. It was not suggested at first instance or on the appeal that the Minister had not considered the Departmental submission or had not considered the attachments to that submission. If the Minister did consider the attachments, that adds to the difficulty, in my view, in concluding that he did not actively engage with the appellant’s submission concerning the effect on his health.

33    In my respectful opinion, regard should be had to this additional context when considering [64] of the Minister’s reasons. For convenience, I repeat [64]:

I accept that Mr Swannick would experience significant hardship in returning to the United Kingdom. I find that the impact of these impediments would lessen over time as Mr Swannick would have access to welfare and support services similar to other citizens of the United Kingdom in his position.

34    The first sentence of [64] indicates that the Minister accepted the force of the matters which he had summarised in the preceding paragraphs which, as I have indicated, are to be taken as derived from his consideration of the attachments to the Departmental submission.

35    It is true that the manner in which the Minister expressed his conclusion in [64] is concise, as the primary Judge found. But conciseness in the expression of a conclusion is not inconsistent with there having been proper consideration of the matters relied upon for the conclusion.

36    By way of illustration of that proposition, I note that the Minister concluded his consideration of the strength, nature and duration of the appellant’s ties with Australia, which occupied 21 paragraphs in his reasons ([31]-[51]), with a similarly concise statement in [52], namely:

I have considered the effect of non-revocation upon Mr Swannick’s parents, sister, nephews and close acquaintance Mr Frijaf and I accept that those persons would experience emotional, practical and financial hardship. I have taken this into account and recognise the effect of non-revocation for family members in Australia.

37    For these additional reasons, I agree with McKerracher J that the appeal should be dismissed.

38    As I mentioned at the commencement of the reasons, the decision not to revoke the cancellation in this case does appear harsh. The question of whether the residual discretion, if available, should be exercised in favour of the appellant is, however, a matter for the Minister.

Associate:

Dated:    1 October 2020

REASONS FOR JUDGMENT

STEWART J:

Introduction

39    The appellant, Mr Swannick, is a 50-year-old man who was born in England but has lived in Australia since the age of three. Everything of importance to him is in Western Australia: his three children, his elderly parents, his sister, his nephews, his friends, his dog, his job and the house which he owns. He knows no-one in England. Since arriving in Perth in 1974 under an official assisted passage scheme, he has never left Western Australia.

40    Having entered Australia on an entry permit on his mother’s passport, Mr Swannick has been a permanent resident of Australia since his arrival. Most recently, he resided here under a Class BF (permanent) visa. Mr Swannick never acquired Australian citizenship notwithstanding that his parents were granted citizenship in 1989. His mother says that Mr Swannick intended to apply for citizenship and many years ago took some steps to do so but he could not complete the paper work. He has remained a United Kingdom citizen.

41    In the period between 1989 and 2014, Mr Swannick was convicted of several minor offences including cannabis possession and driving without a licence. On 11 February 2016, he was convicted of several counts of unlawful and indecent assault, and one count of sexually based offending against a child under the age of 16. The total head sentence for the offences was a term of imprisonment of four years, with a non-parole period of two years.

42    On 23 June 2017, his permanent residence visa was cancelled by a delegate of the first respondent (the Minister) under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he did not satisfy the character test set out in sub-ss 501(6) and (7) of the Act.

43    Mr Swannick was released on parole on 28 May 2018, after two years and three months’ imprisonment. The Parole Board of Western Australia found that his release “would not present an unacceptable risk to the safety of the community”. Mr Swannick was transferred that same day into immigration detention, where he remains.

44    Mr Swannick requested that the cancellation of his visa be revoked by the Minister, and his lawyers provided a written submission to this end. On 9 October 2019, the Minister made the decision not to revoke the cancellation under s 501CA(4) of the Act. Mr Swannick sought judicial review of the Minister’s decision in this Court, but his application was dismissed by a judge of this Court: Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 490. This is an appeal against that decision.

45    Mr Swannick seeks an order that the decision of the Minister be set aside and a writ of mandamus requiring the Minister to determine his application for revocation of the cancellation of his visa according to law.

46    In his notice of appeal, Mr Swannick relies upon two grounds:

1.    The Honourable Judge erred by relying heavily on the Case she had previously presided over and had favoured the Minister for Home Affairs (Pennie Vs Minister for Home Affairs [2019] FCA 489). The cases do possess similarities but are quite different in qualitative nature. The case brought upon by Pennie was based on his physical health and the ambiguity that rose on the competence of the Irish Medical Services. Physical health can almost be dealt with anywhere in the World given that the required services are available. My case is based on mental health which is a totally different aspect of our health and one that is extremely complex in nature. If I was removed from my support network. I am going to suffer another mental breakdown. I had an episode that involved self-harm while I was incarcerated.

2.    The Honourable Judge erred by concluding that the Minister taken into account my mental health by mentioning the fact that I was going to face serious hardships. Hasty generalisation of everyone leaving an institution. Everyone who has been detained for a considerable amount of time is most likely to encounter reintegration issues. It is an hackneyed statement and cannot form any sound legal basis. The specifics of my case were not looked into objectively but rather my cases was clouded due to the nature of my crime.

47    The substance of the complaint contained in these grounds is that the Minister did not give adequate consideration to the mental health difficulties Mr Swannick will face if removed from Australia.

The statutory framework

48    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to a substantial criminal record, or sexually based offences involving a child, and that the person is serving a full-time sentence of imprisonment. It is not in issue that Mr Swannick did not pass the character test.

49    Section 501CA(4) of the Act empowers the Minister to revoke the cancellation decision:

(4)    The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)      the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

50    In Mr Swannick’s case, the Minister accepted that he had made representations in accordance with the invitation and Mr Swannick accepted that he did not pass the character test. Accordingly, the Minister was required to consider whether there was “another reason” why the cancellation decision should be revoked.

The Minister’s decision

51    The Minister was presented with a detailed submission prepared by the Department of Home Affairs that summarised the material put forward on behalf of Mr Swannick in support of the Minister deciding to revoke the cancellation, and included as attachments copies of that material. The Departmental submission made provision on a cover sheet for the Minister to indicate whether he wished to consider the case personally or refer it to a delegate, and if he decided to consider it personally whether his decision was that the cancellation should be revoked or not revoked. It then provided, in the event that he decided not to revoke the cancellation, for the Minister to either sign the attached pre-prepared statement of reasons for such a decision with any amendments that the Minister may wish to make or to not sign them with a “please discuss” option.

52    The Departmental submission was signed by the Minister on 9 October 2019 indicating that he would consider the matter personally, that he decided not to revoke the cancellation of the visa and that he had signed the pre-prepared statement of reasons. Scrutiny of the statement of reasons shows that the Minister signed them on the same day without amendment.

53    The Minister’s statement of reasons cover a range of considerations. Relevantly for this appeal, they stated that the Minister gave consideration to the impediments faced by Mr Swannick if he were to be removed to the United Kingdom.

54    At [55] of the Minister’s reasons, it was noted that Mr Swannick suffered from high cholesterol, self-harm, amphetamine abuse, chronic alcohol use, depression, marijuana abuse, and that he had previously suffered episodes of drug-induced psychosis.

55    The Minister’s reasons addressed Mr Swannick’s mental health concerns as follows:

57.    I have considered the submission from Mr SWANNICK’s father that he is very concerned for his son’s mental health, both now while he is in detention and if his son were to return to the United Kingdom. I am also aware of a submission from Mr SWANNICK’s mother that she fears her son will end up in a mental institution or kill himself if he is removed.

58.     I have also considered Mr SWANNICK’s concerns about his mental health as he has spent many years addressing his depression and anxiety.

59.     I have considered the submission Mr SWANNICK received counselling and takes medication for depression and anxiety. I have also noted the representation that when Mr SWANNICK first arrived in prison he had poor coping skills and did not deal with change or stress effectively. Further, I have considered submissions that Mr SWANNICK also has a history of self-harm. I have also considered the representation that he has achieved significant improvements in his mood regulation and anxiety management through counselling and medication. I acknowledge Mr SWANNICK’s usual medications include Fluoxetine (an anti-depressant), Propranolol (for his heart condition), Atorvastatin (for cholesterol) and the painkillers paracetamol and Ibuprofen.

60.     I have considered information from International Health and Medical Services dated 8 August 2018 that Mr SWANNICK has adjustment disorder with anxious mood (disorder). I have also considered Mr SWANNICK self reports that he has been feeling down, depressed and anxious. Mr SWANNICK submits that he is not experiencing suicidal thoughts, and is currently anxious regarding his immigration situation and has sought medication and counselling.

61.     I have considered Mr SWANNICK’s statement that he is very scared of returning to the United Kingdom. I accept that Mr SWANNICK has spent his entire adolescent and adult life in Australia and that all of his social, employment, educational and meaningful family ties are in Australia. I have considered representations that Mr SWANNICK has no real knowledge of life in the United Kingdom, and at the age of 47, would face considerable hardship re-establishing himself without family support or other connections. I have considered representations that Mr SWANNICK fears homelessness and a serious decline in his mental health if he is removed from Australia and that while Mr SWANNICK may have relatives in the United Kingdom, he needs to remain in Australia where he can receive love and support from his family.

62.     I have considered a Self Management Plan from Mr SWANNICK received on 19 June 2018 and I note Mr SWANNICK’s submission that he has turned his mind to the prospect of starting a new life in the United Kingdom and has listed a number of matters he would need to address including obtaining a bank account and drivers licence, and finding a way to contact his friends and family. I have considered Mr SWANNICK’s submission that he considers a return to the United Kingdom to be overwhelming and he is unsure where to start as he has not been to the United Kingdom in 45 years.

63.    I have also considered the submission that given the length of time he has lived in Australia, his age and the fact he has never left Australia, Mr SWANNICK will have serious and substantial difficulties assimilating to a new country.

56    In assessing the overall effect of the impediments faced by Mr Swannick if he were removed, the Minister found as follows:

64.    I accept that Mr SWANNICK would experience significant hardship in returning to the United Kingdom. I find that the impact of these impediments would lessen over time as Mr SWANNICK would have access to welfare and support services similar to other citizens of the United Kingdom in his position.

57    The Minister noted (at [142]) that the Parole Board of Western Australia had decided to release Mr Swannick on parole as he “did not pose an unacceptable risk to the safety of the community” and went on to make several findings about Mr Swannick’s risk of reoffending:

150.     I find that the support of family and friends, employment, residing in his own home without his ex-partner and her children, receiving counselling and reporting obligations will assist Mr SWANNICK in refraining from re-offending.

151.     I have considered that the sentencing Judge noted Mr SWANNICK was assessed as a low to moderate risk of re-offending. I find that Mr SWANNICK ceasing to use drugs and alcohol, addressing his mental health and protective factors such as employment and support from medical professionals, family and friends will assist him from abstaining from future offending. However, I note with concern Mr SWANNICK’s poorly-developed insight into his offending as demonstrated by his repeated denials he committed offences and his preparedness to blame his offending on drug and alcohol use. Mr SWANNICK’s offending comprises a regular pattern of behaviour over many years involving multiple vulnerable victims, including his minor stepdaughter who was in his care.

152.     I find that there is a risk that Mr SWANNICK will reoffend, albeit a low risk.

153.     I consider that should Mr SWANNICK re-offend in a similar manner, it could result in serious harm to vulnerable members of the Australian community.

58    Finally, the Minister concluded as follows:

162.     In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr SWANNICK represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence, employment and familial ties to Australia, and the hardship Mr SWANNICK, his family and social networks will endure in the event the original decision is not revoked.

59    Accordingly, the Minister declined to revoke the cancellation.

The decision of the primary judge

60    The ground of review before the primary judge was that the Minister failed to give “proper, genuine and realistic consideration” to a representation made by Mr Swannick. In the particulars to that ground, the representation was identified as being Mr Swannick’s submissions about the mental health issues and homelessness he would face.

61    In an admirably detailed and careful judgment, the primary judge determined that the Minister had substantively considered Mr Swannick’s claims in terms of mental health and the risk of homelessness:

59.    It is clear, when the reasons are read as a whole, that the Minister was aware of concerns about Mr Swannick's mental health.

60.    The Minister considered a range of sources of information about Mr Swannick's mental health. He had regard to information from the Mental Health Team at the relevant prison (at [55]). He had regard to the opinions expressed by Mr Swannick's parents (at [57]-[58]). He had regard to Mr Swannick's own expressed concerns (at [58]).

61.    The Minister also had regard to the manner in which Mr Swannick says he has dealt with his mental health concerns, including with counselling and medication (at [58]-[59]). The Minister set out the actual medication used by Mr Swannick, noting that one is an anti-depressant (at [59]).

62.    The Minister recorded that Mr Swannick had taken steps to seek medication and counselling (at [59]-[60]), and recorded Mr Swannick's submissions that he feels overwhelmed by what would lie ahead (at [62]).

63.    Of the section in the reasons dealing with impediments upon return, at least half of the paragraphs refer to Mr Swannick's mental health.

…

66.    The parts of the reasons (from [53]) that record the Minister's consideration of the representations as to a feared decline in mental health and feared homelessness immediately precede the Minister's finding at [64] that 'I accept that Mr Swannick would experience significant hardship in returning to the United Kingdom'.

67.    The reference to 'significant hardship' must in context be taken to include Mr Swannick's mental health issues and potential homelessness, just as such hardship must be taken to include the 'serious and substantial difficulties' that Mr Swannick faces in assimilating to a new country (referred to at [63]). On a proper reading of [64], all such issues are recognised as impediments that will lead to significant hardship.

68.    The finding by the Minister that Mr Swannick will experience 'significant hardship', following reasons that expressly refer to the issue of mental health and homelessness, to my mind reflects more than a mere recitation of Mr Swannick's claims (and the Minister's finding in this case is an important distinction from the reasons the subject of McCutcheon[ v Minister for Immigration and Border Protection [2018] FCA 828]).

69.    The finding (at [64]) that the impact of the impediments would lessen over time as Mr Swannick would have access to welfare and support services in the United Kingdom must also be viewed in the context that the impediments are those just addressed, including issues relating to mental health and homelessness. Therefore, in this case, the reference to 'welfare and support services' must be taken to refer broadly to social services including health and housing services that are available to citizens of the United Kingdom. This approach is also consistent with the principle that the reasons of the decision-maker are to be interpreted practically and not minutely: Navoto at [99]; and Maioha at [70].

70.    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.

62    The primary judge concluded that there was no error in the Minister’s reasons.

The parties’ submissions on appeal

63    Mr Swannick’s notice of appeal contains two grounds, as set out above. He filed written submissions in advance of the hearing. The substantive complaint that emerges from the grounds of appeal and the submissions was that the Minister had not adequately considered the detrimental effect of removal on Mr Swannick’s mental health, and that the primary judge had erred in finding to the contrary.

64    Mr Swannick appeared in person at the hearing. He made oral submissions which largely accorded with his written submissions. He submitted that the Minister did not take into account secondary considerations, especially regarding his mental health.

65    At the hearing, most of the Mr Swannick’s submissions concerned the Minister’s assessment of the impact of removal on Mr Swannick’s mental health. Mr Swannick took issue with the finding (at [64]) of the Minister’s reasons that the impact of impediments would lessen over time because Mr Swannick would have access to welfare and support services in the United Kingdom. Mr Swannick submitted that “the mere existence of these services does not mean that the problem is solved; Australia has these services”. He submitted that his mental health problems would not be cured by the existence of support services, since they would be caused by removal from his family and support network.

66    Mr Swannick also made submissions regarding the assessment of his risk to the community. He noted that he had completed courses and programs while in prison, in order to become a better member of the community. Mr Swannick drew attention to the fact that the Minister found (at [152]) that he had a low risk of reoffending, but ultimately concluded that he represented an unacceptable risk of harm to the Australian community. Mr Swannick submitted that this was inconsistent. Mr Swannick compared his situation to that in Pinder v Minister for Home Affairs [2019] AATA 1398, submitting that Mr Pinder’s offences were far more serious, and yet the Administrative Appeals Tribunal revoked the cancellation of his visa.

67    In addressing the first ground of appeal, which claimed that the primary judge erred in relying on Pennie v Minister for Home Affairs [2019] FCA 489 (which was confirmed on appeal in Pennie v Minister for Home Affairs [2019] FCAFC 129), the Minister submitted that both cases concerned the question of whether the Minister had given proper, genuine and realistic consideration to a representation made by the applicant in that case. The fact that Pennie was concerned more with issues of physical health rather than mental health was submitted to be irrelevant.

68    On the second ground of appeal, which turns on whether there had been adequate consideration of Mr Swannick’s representations about his mental health, the Minister noted that Mr Swannick did not submit that he would be unable to obtain support in the United Kingdom for his mental health issues. The Minister drew attention to the primary judge’s finding (at [59]) that it was clear from the reasons as a whole that the Minister was aware of concerns about Mr Swannick’s mental health. The Minister also emphasised the primary judge’s finding (at [67]) that the phrase “significant hardship” in the Minister’s reasons must, in context, be taken to include Mr Swannick’s mental health issues. The Minister submitted that there was no error in the primary judge’s application of Navoto v Minister for Home Affairs [2019] FCAFC 135 or Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643.

69    The Minister’s submissions also dealt with Mr Swannick’s reference to the Pinder decision. The Minister submitted that the fact that the Tribunal revoked the cancellation of Mr Pinder’s visa does not mean that the Minister erred in the present case, since each case turns on its own facts. The Minister went on to expand on some of the differences between Pinder and the present case.

70    At the hearing, counsel for the Minister was asked about the complaint that the Minister’s use of the phrase “significant hardship” was insufficient to show consideration of the difficulties Mr Swannick would face if removed. Counsel for the Minister submitted that in the preceding paragraphs of the reasons, the Minister had noted various types of hardship that Mr Swannick would suffer, and that the phrase “significant hardship” was a recognition of all the difficulties set out in the preceding paragraphs.

Consideration

71    Two arguments made by Mr Swannick can be dealt with briefly.

72    First, Mr Swannick’s complaint about the primary judge’s reliance on Pennie is misconceived. As pointed out by the Minister, both cases turned on the same legal question (that is, the proper approach by a Minister in considering whether to revoke a visa cancellation) and the differences in their factual circumstances are irrelevant. There was no error on the part of the primary judge in this regard.

73    Second, Mr Swannick’s reliance on the Pinder decision is also misconceived. Although the obvious disparity between the offences in the two cases may be jarring (Mr Pinder’s offences being far more serious), and although Mr Pinder first came to Australia at the age of 26, not at the age of three, to enter into a comparison of the facts of the two cases in order to make a conclusion about the different outcome on Mr Swannick’s case would be to undertake a merits review. Inevitably the cases turn on their own facts. What happened in the Pinder decision is simply irrelevant to the present case.

74    However, there is more substance to Mr Swannick’s complaint that the Minister did not give proper consideration to his mental health concerns.

75    It is apposite to note at the outset the requirement for an “honest confrontation” of the potentially devastating consequences of visa cancellation under s 501, as expressed by Allsop CJ (Markovic and Steward JJ agreeing) in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3]:

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [9]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

76    That passage from Hands has been cited dozens of times in the short period since judgment in that case was handed down, including about a dozen times by the Full Court. It is an expression of the need for the Minister to “consider” significant and clearly expressed relevant representations made in support of a revocation request: Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [37] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ. Meaningful consideration requires more than simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, it may be necessary to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that the statutory decision-making process is carried out according to law. See Omar at [39].

77    As part of the process of consideration of the merits, the Minister is required to engage in an “active intellectual process”: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [46] per Griffiths, White and Bromwich JJ.

78    In Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643, Rares and Robertson JJ (Flick J agreeing in the result) set out the nature of the Minister’s task:

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] HCA 48; 243 CLR 164 at [30] citing Swift v SAS Trustee Corporation [2010] NSWCA 182; 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.

79    Relevantly for present purposes, in Navoto v Minister for Home Affairs [2019] FCAFC 135 the Court (Middleton, Moshinsky and Anderson JJ) said the following:

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 [v Minister for Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1] 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.

80    In Navoto (at [99]) it was also emphasised, with reference to well-known authority, that 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, and that “[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”. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ.

81    The above passages from Maioha and Navoto were set out in the primary judge’s reasons for judgment. Her Honour considered that the Minister had, as a matter of substance, considered Mr Swannick’s claims in respect of mental health.

82    Her Honour found (at [67]) that the reference to “significant hardship” must in context be taken to include Mr Swannick’s mental health issues, and found (at [68]) that this finding reflected “more than a mere recitation” of Mr Swannick’s claims.

83    Whilst I accept that “significant hardship” in context is to be understood as including mental health hardship, I respectfully reach a different evaluative conclusion with respect to the Minister’s consideration of Mr Swannick’s mental health hardship being no more than a mere recitation. The Minister (in [55] to [64] of his reasons) gives a detailed list of the various hardships faced by Mr Swannick if he is removed. However, the words “I have considered” at the beginning of each paragraph are not sufficient on their own to demonstrate actual active consideration of these matters (comparable to the “decisional checklists” or “mechanical formulaic expression” criticised in Hands at [3]). The fact that they correspond to the submission put to the Minister by the Department is also not evidence of active intellectual consideration or honest confrontation. On the contrary, the Minister’s wholesale adoption of the Department’s pre-prepared statement of reasons without amendment, while constituting positive evidence of consideration of the matters referred to, is not evidence of the quality of that consideration. Cf. Folau v Minister for Immigration and Border Protection [2017] FCAFC 214; 256 FCR 455 at [90]-[92] per Murphy and Burley JJ.

84    Similarly, in Omar, the Court found (at [43]) that the Assistant Minister had merely “noted” or said that he had taken into consideration some of the matters relating to the risk of harm in Somalia. Specifically, the visa applicant in that case had made submissions about the treatment of mentally ill persons in Somalia. The Court found that these arguments were of “central significance” and that the Assistant Minister had to engage with them properly and make findings of fact one way or the other, not merely state that he had considered the argument (at [43]).

85    In the present case, after noting all the impediments which Mr Swannick said that he would face, and without making any finding on them, the Minister summarised the total effect of them. This paragraph is quoted above, but it deserves repeating:

64.    I accept that Mr Swannick would experience significant hardship in returning to the United Kingdom. I find that the impact of these impediments would lessen over time as Mr Swannick would have access to welfare and support services similar to other citizens of the United Kingdom in his position.

86    In his final reasoning, the Minister (at [162]) refers to the “hardship” Mr Swannick, his family and social networks will endure in the event that the visa cancellation is not revoked.

87    There are two problems with the Minister’s conclusion with regard to “significant hardship”. The first is the reduction of all of the difficulties Mr Swannick is likely to face if returned to the United Kingdom into the phrase “significant hardship”. Mr Swannick submitted, as he did before the primary judge, that this phrase was “hackneyed” and did not demonstrate adequate consideration of his mental health difficulties.

88    In Hands, the Court drew particular attention to a finding by the Minister that Mr Hands “may experience short term hardship”:

32.    The last sentence in [35] contains a finding of fact that was critical to the assessment. There is nothing in the material that could permit a rational finding that Mr Hands “may experience short term hardship”. To any person reading the material before the Assistant Minister, the only conclusion reasonably open would be that the removal of Mr Hands would in all likelihood be a crushing blow to him and his partner, deeply affecting him, his family and his community. The proposition that there would be short term hardship was unsupported by any material, and utterly at odds with any reasonable reading of the whole of the material.

89    The phrase “significant hardship” is perhaps a greater recognition of Mr Swannick’s suffering than the “short term hardship” finding in Hands, but it cannot be allowed to escape scrutiny merely by use of the word “significant”. The matters set out earlier in the Minister’s reasons, if accepted, indicate that Mr Swannick would suffer devastating consequences if he was removed from Australia. These would likely be indefinite. His fears of a serious decline in his mental health were substantiated by information from the Mental Health Team at Karnet Prison Farm, indicating that he has numerous mental health issues. I accept the submission that to describe these consequences as “significant hardship” is hackneyed, or glib. It shows no active intellectual engagement with what was put by Mr Swannick as it makes no findings on them, glibly and compendiously describes them as significant hardship, and fails to confront what is really being done to Mr Swannick. In order to assess the veracity and gravity of the representations as to the hardship that would be faced, it was necessary to make findings on those representations, one way or the other (cf. Omar at [43]).

90    Taking a step back to the statutory scheme, a visa is mandatorily cancelled under s 501(3A) if the visa holder does not pass the character test because of the operation of para (6)(a) (substantial criminal record) on the basis of paras (7)(a), (b) or (c), or para (6)(e) (sexually based offences involving a child), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution. The threshold for such a mandatory cancellation includes if the visa holder has been sentenced for a term of imprisonment of 12 months or more (s 501(7)(c)) or if a court in Australia or elsewhere has found the person guilty of a sexually based offence involving a child even if the person was discharged without a conviction (s 501(6)(e)).

91    The result is that despite the person having served their sentence, if any, a further consequence follows from their offending as a matter of mandatory operation of law, being the cancellation of their visa which entitles them to be in Australia. In some cases, that consequence may not be particularly harsh and may do no injustice. For example, a relatively young person on a short-term visa, with little connection to Australia and a full and safe life elsewhere, may find the cancellation of their visa no more than an irritation. In another case, the consequence may be devastating and, on the face of it, unjust or unfair. An example would be an older person who has lived in Australia their whole life, had long since qualified for citizenship but not acquired it, not out of conscious choice but from ignorance or disadvantage, and has no connection at all to another place. Another example, taken from Omar (at [40]), is if the person was returned to another country they would likely be chained, imprisoned and at risk of physical injury because of that country’s treatment of the mentally ill.

92    The statutory scheme provides the mechanism to ameliorate the hardship that might be caused by a mandatory cancellation in a particular case. That is by giving the Minister the power to revoke the cancellation if, relevantly, there is a reason to do so other than because the person actually does pass the character test (s 501CA(4)). In a case at the low end of the spectrum of harshness, there would on the face of it be no other reason for revocation. But at the other end of the spectrum, the reason for revocation is glaring and obvious. It is the extraordinary harshness that could be meted out to the person. But even then, the Minister might not revoke the cancellation when not only the harshness of the consequences of the cancellation is taken into account but also other relevant considerations such as the risk of reoffending and the protection of the Australian community. But for such a decision to be lawful, the Minister must confront, which is to say appreciate, what is being done. It is that despite there being on the face of it a compelling reason to revoke the cancellation, when all things are considered the cancellation should not ultimately be revoked.

93    This demonstrates what is lacking in this case. The Minister by his reasons shows no appreciation of the hardship and injustice that will be wrought on Mr Swannick by the cancellation. That is not to say that such an appreciation would necessarily lead to a different decision. A lawful decision might still have the same outcome, but the reality of the outcome on the visa holder must be confronted for the decision to be lawful.

94    The second problem with [64] of the Minister’s reasons is the finding that these impediments would “lessen over time” because of Mr Swannick’s ability to access welfare and support services. This is, to quote Hands at [44], “hardly to the point”. There is no evidence to indicate that the nub of Mr Swannick’s hardship would be lessened over time by welfare and support services. The major impediments set out before the Minister were in the nature of family and social ties and the importance of a support network. Indeed, the Minister noted (at [150]) that it is such a network that would assist Mr Swannick to refrain from reoffending, but then made a decision that would cause Mr Swannick to be removed from that network.

95    Mr Swannick’s parents provided compelling evidence to indicate that they would likely never see their son again because they live in social housing and are on the pension, and cannot afford international travel. During the hearing Mr Swannick made the point that “welfare and medical health support, the mere existence of these services does not mean that the problem is solved … This is an aspect that can’t be solved by money or medication”.

96    In short, the impact on Mr Swannick of being wrenched from Western Australia and returned to a place he has never known will be devastating. A single reference to “significant hardship” does not evidence an honest confrontation with the very real human consequences of removal. The finding that the impact would lessen over time due to “welfare and support services” is not supported by any evidence and the information in the preceding paragraphs that is said to have been considered points to the contrary.

97    The Minister’s reasoning in this respect does not amount to an honest confrontation with what he is doing. All of Mr Swannick’s suffering is condensed into the single phrase “significant hardship”. To find that the impact would lessen over time due to “welfare and support services” is to glibly dismiss the consequences of permanent separation from his family, his friends, his community, his work, his home, and his whole Australian identity. It will be to separate him from who he is.

98    It should perhaps be acknowledged 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 of his return to the United Kingdom. That exercise by the court on appeal does not involve looking for error in the reasoning of the primary judge. The court on appeal must decide the question for itself. See Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [18] per Kiefel CJ, [35]-[50] per Gageler J, [85]-[87] per Nettle and Gordon JJ and [154]-[155] per Edelman J.

99    It follows that although I have reached a different conclusion to the primary judge, that is not on the basis of having identified any error in her Honour’s judgment. I have merely reached a different evaluative conclusion with regard to what the Minister did. In doing so, I am mindful of the necessity of avoiding “sliding into impermissible merits review” while at the same time holding the Minister to the limits of the statutory power by focusing on the process of his decision making. In my view, in this case that process failed in the way in which I have identified with the result that jurisdictional error is established.

Disposition

100    In the result, I would uphold the appeal, substitute the orders below for orders setting aside the Minister’s decision and issuing a mandamus that the Minister consider the matter again according to law, and order that the Minister pay Mr Swannick’s costs below and on appeal.

Associate:

Dated:    1 October 2020