Federal Court of Australia

Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 12 April 2022 be set aside and the following orders substituted:

(a)    the application be allowed;

(b)    the decision of the Administrative Appeals Tribunal made on 26 May 2021 be set aside;

(c)    the matter be remitted to the Tribunal for determination according to law; and

(d)    the first respondent pay the applicant's costs, to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1    Mr Jabari is a national of Iraq. He appeals from a judgment of this Court dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision by a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of Mr Jabari's visa. That cancellation had occurred because Mr Jabari did not pass the character test in s 501 of the Migration Act 1958 (Cth) and was serving a sentence of imprisonment for fraud offences. Mr Jabari then made representations as to why the cancellation should be revoked under s 501CA(4)(b) of the Migration Act.

2    There is no issue that Mr Jabari does not pass the character test, meaning that the question for the delegate and for the Tribunal under s 501CA(4)(b)(ii) was whether they were satisfied that there was 'another reason' why the cancellation decision should have been revoked. At first instance, and again on appeal, Mr Jabari criticises the nature and quality of the consideration that the Tribunal gave to two aspects of the submissions he made:

(1)    Mr Jabari had two young children in Australia who were Australian citizens. He contends that he made submissions about the effect that long-term separation would have on them and that this should have weighed heavily in favour of revocation.

(2)    Mr Jabari claims to suffer from medical conditions and anxiety which required medication. He submitted that he was concerned that in Iraq he would not be able to obtain those medications.

3    If the Court finds that the Tribunal did not give the requisite consideration to one or both of these matters, there will also be an issue as to whether the failure to do so was material to the Tribunal's decision, so that the Migration Act should be construed as denying statutory force to that decision. In other words, the issue in relation to each of the two submissions just described is whether the Tribunal fell into jurisdictional error.

4    For the following reasons, we have respectfully reached the view that the primary judge erred in his Honour's treatment of the first of those submissions. The Tribunal failed to give the submission about the children the level of consideration required in order to discharge its duty of review of the delegate's decision, and the failure was material to the outcome of the review. Therefore, the appeal will be allowed.

Background to the Tribunal's review and subsequent events

5    Mr Jabari came to Australia in 1994, at the age of 22. The children relevant to the present appeal were from his relationship with a Yamatji woman, Margaret Hawke. He has two older children from a previous relationship who are living in Malaysia and who are not relevant to the appeal.

6    Mr Jabari's children with Ms Hawke, J and A, were 8 years old and 6 years old respectively at the time of the Tribunal's decision. They lived in Port Hedland with their mother, and, like their mother, identified as Indigenous Australians.

7    In 2015 Mr Jabari was convicted of possession of methamphetamine with intent to sell or supply and sentenced to prison. The mandatory cancellation of his visa which followed from that was revoked in 2016. Those offences are not directly relevant now, save that they resulted in periods of incarceration which separated Mr Jabari from J and A. The fraud offences which led to the present cancellation of his visa had taken place in around 2009 but he was not convicted of those offences until 2018. He was sentenced to five years imprisonment with eligibility for parole after three years.

8    As a result, on 18 February 2019 Mr Jabari's visa was cancelled under s 501(3A) of the Migration Act. He validly commenced the procedure for the Minister to consider revoking the cancellation, and on 2 March 2021 a delegate of the Minister decided not to revoke it. Mr Jabari applied to the Tribunal for review of the decision and the Tribunal held a hearing on 10 May 2021. The Tribunal affirmed the delegate's decision on 26 May 2021.

9    On 19 July 2022, J and A were killed at their home in Port Hedland. Ms Hawke was convicted of their murder. Those tragic events do not affect the authority (or legality) of the earlier Tribunal decision. Also, it was common ground that the death of the children did not raise a question about the futility of the Court granting relief to Mr Jabari that might bear on the discretion to grant a constitutional writ. The position taken by counsel for Mr Jabari was that the deaths of the children at the hands of their mother could well have had a deleterious effect on his client's mental health and evidence to that effect could be adduced which could affect the outcome at a new hearing. There is therefore no need to refer to those events again in this judgment.

The representations made to the Minister and the submissions made to the Tribunal

10    Generally, when judicial review is sought on the basis that the decision maker did not give due consideration to a matter, it is necessary to evaluate that in light of the representations and submissions which the applicant made about the relevant matters. It is convenient to set out the relevant representations and submissions here.

Representations and submissions about Mr Jabari's two Australian children

11    Mr Jabari's original representations as to why the mandatory cancellation of his visa should be revoked were made in an annexure to the standard form 'Request for Revocation of a Mandatory Visa Cancellation Under s 501(3A)' dated 12 March 2019. This document was before the delegate and the Tribunal. At that time, the direction made by the Minister under s 499 of the Migration Act, with which delegates and tribunals making decisions under s 501CA(4) were required to comply, was Direction No 79, 'Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA' (Direction 79). Under the heading 'Consideration (B) – Best Interests of Minor Children', Mr Jabari's representations referred to the requirement in para 13.2(1) of Direction 79 that decision makers must give consideration to whether revocation is in the best interests of minor children. The annexure indicated that Mr Jabari would give evidence as to the likely effect of separation on his two children, J and A, 'being young children … rely fairly heavily on their father for support' (para 34). It indicated that there was evidence before the judge who sentenced Mr Jabari on his conviction for fraud as to the impact of separation on his children because of his imprisonment. The annexure then said (para 40): 'This detrimental impact is likely to become further exacerbated by the separation the children would experience, if separated from the Applicant, as their father'.

12    Further representations about Mr Jabari's children were contained in a Personal Circumstances Form dated 5 November 2020. This referred to J and A as well as the two children in Malaysia. In response to a request to describe the impact the cancellation of his visa would have or has had on the children, Mr Jabari wrote:

The impact to all my children for me being incarcerated is already taking its toll on their mental state. The only positive is that the children believe I will be coming home soon. I was eligible for parole in October 2020 and all [we?] were looking forward to sharing Xmas together. In the event that my visa cancellation is not revoked this would create a devastating impact to all my children in different ways. [J] suffers nightmares and wakes up screaming asking for me. Her schooling is affected and the only comfort we can give her is that I'll be coming home soon. I haven't been able to bond with [A] and he is suffering not having a father figure in his life.

13    Under a request for any other information that he wanted the Minister or delegate to consider when making their decision, Mr Jabari wrote that it:

would be horrific if my mistakes result in further punishment to my children being [separated] from their father and their father being given a death sentence being sent to a warzone. I have paid the price for my mistakes and my children do not deserve to suffer for the rest of their lives for my mistakes.

14    Also on 5 November 2020 Mr Jabari addressed a letter to the Department where he again raised the best interests of his children in Australia (and those in Malaysia) by reference to para 13.2 of Direction 79. The letter essentially repeated the specific submissions in the Personal Circumstances Form about the effect of his incarceration on J and A, and added: 'A decision to not revoke my visa cancellation will only [exacerbate] the already difficult separation anxiety issues being faced by my children'.

15    Also before the Tribunal was a bundle of materials tendered by the Minister. This included a letter of support to the sentencing judge written on behalf of Ms Hawke by the Wirraka Maya Health Service, Aboriginal Corporation. It was a request for Mr Jabari to be imprisoned close to where she and the Australian children were living so that they could visit to prevent untreated trauma. It said:

Margaret was very upset once she starting discussing the reason why she needed a support letter but she knew what she wanted and that [it] was the best for her children's relationship with their father to still be able to visit their father if incarcerated.

Margaret said that she has [weighed] the consequence of her partner being incarcerated but even more she said that she can't fathom her children not seeing and having that relationship that they have had with the children since birth and the children missing their father in the physical, mental and emotional and visual and she [knows] that this will be a long term cognitive development trauma. Margaret would like arrangement set up for her children to able to see their father quite regularly before this untreated trauma starts.

16    The letter also contained a paragraph that appears to have been copied from another (unattributed) source, as follows:

Kids with Parents in Prison Often Deal With Untreated Trauma

Some kids whose parents are incarcerated watched them get arrested, or were exposed to criminal activity. Others have been abused, neglected, or shuffled through an ever-shifting web of caretakers and foster homes, some more capable of caring for a child than others. Even in the best of circumstances, the kid is still losing a parent. Together, these make children of incarcerated parent's learning disabilities [sic]. They are also at greater risk for a wide variety of physical health problems. The type of trauma children experience depends on the age at which their parent is locked up, according to Gary Blau, the head of the child, adolescent, and family services branch of the Substance Abuse and Mental Health Services Administration, a U.S. federal agency. Infants who lose critical bonding time with a parent may be at greater risk for problems with emotional attachment, he said, while older kids may feel guilt and shame, leading to aggression, anxiety, or withdrawal. The trauma of losing a parent is often compounded by a sudden loss of income, he added, as well as the stigma and shame kids feel about having a criminal as a parent.

17    Mr Jabari also put a statement before the Tribunal as part of his bundle of evidence. It referred to J as follows:

I am very close with my daughter [J]. She remembers me very well and still wakes up in the middle of the night and cries for her father. I spoke to her the other day on the phone and she was immediately crying. It will be even worse for her if I can never come home.

18    There were also two statements of support from acquaintances of Mr Jabari in the bundle that made relevant references to the interests of J and A. They both said that the children had already been affected by their separation from their father, with one saying that 'they are struggling mentally/emotionally from not having their dad around and not seeing him'.

19    Mr Jabari had legal representation before the Tribunal and his solicitors commissioned a report from a forensic psychologist, Dr Phil Watts. While focussed on the risk that Mr Jabari would reoffend, the report did make the following comment about his children:

I consider it a relevant factor for consideration with immigration that the indigenous children are at particular risk without the presence of a father, more so perhaps than other Australian children, and certainly from the descriptions by Mr Jabari, there have been a number of social problems in Margaret's extended family with alcohol and drugs.

20    Mr Jabari's solicitors submitted a detailed statement of facts, issues and contentions (SOFIC) to the Tribunal. The following submission was made in relation to the best interests of J and A:

Due to his placement in Karnet Prison Farm (in Serpentine, WA) the Applicant has been unable to receive regular visits from Ms Hawke and their two children, who live approximately 1,688km away in Port Hedland. This has already had a significant impact on the children - financially, emotionally and practically.

21    The SOFIC referred specifically to the letter from the Wirraka Maya Health service and quoted the reference in it to the children suffering 'long term cognitive development trauma'. It referred to Mr Jabari's statement about J waking up crying in the middle of the night and the statement in his personal circumstances form about the toll his incarceration was taking on the children's mental state. The SOFIC also said:

104.    The Applicant's prior conduct has negatively impacted his children only by effecting their ongoing separation during his terms of imprisonment [footnote: See paragraph 8.3(4)(c) of Direction 90.]. This has been particularly negative for the Applicant's children given the distance and the COVID-19 pandemic, both of which prevented visits.

105.    Children who have an incarcerated parent are already more than three times as likely to suffer from depression or behavioural or conduct problems and at least twice as likely to suffer from learning disabilities, ADD/ADHD and anxiety than children who do not have an incarcerated parent. The Applicant's children live in a regional area and have already been emotionally and physically disadvantaged by the absence of one of their parental figures.

106.    Neither [J] nor [A] have been or are at risk of being subject to or exposed to family violence perpetrated by the Applicant and have not been abused or neglected by the Applicant in any way. There is no evidence they have suffered any physical or emotional trauma arising from the non-citizen's conduct, other than that caused by separation from their father.

107.    The Tribunal should find that it is in the best interests of the Applicant's children that the cancellation of the Applicant's visa is revoked, given that non-revocation will result in certain, permanent separation from their father.

108.    This consideration weighs heavily in favour of revoking the Applicant's visa cancellation, should be of paramount importance to the Tribunal, and should outweigh the other primary considerations.

22    The statement in para 105 about depression, behavioural or conduct problems and other consequences for children who have an incarcerated parent was footnoted with a reference to a 2014 article in the Journal of Health and Social Behaviour.

Material about anxiety and medical conditions

23    The SOFIC made the following submissions on the subject of impediments Mr Jabari would face if he were to be removed to Iraq (para 120, footnote removed):

The Applicant suffers from diabetes, high blood pressure, anxiety and asthma, and takes nine different prescription medications per day. He has serious concerns that if he were returned to Iraq he would not be able to access adequate healthcare and medication, especially given the COVID-19 pandemic.

24    This was followed by country information consisting of an excerpt from a Department of Foreign Affairs and Trade (DFAT) report indicating that Iraq's health system was not in a good state and there were few mental health services and a shortage of practising psychologists. It was footnoted to a pharmacy record of the Department of Corrective Services showing Mr Jabari's prescription medications.

25    In addition, Dr Watts's report referred to a number of difficulties Mr Jabari reported, 'particularly in regards to anxiety, sleep disturbance and suffering from nightmares'. Dr Watts continued:

He explained that he is on several medications to assist him to sleep at night. From what I could work out, this appeared to be a combination of antianxiety and antidepressant medication.

Mr Jabari indicated that he has not previously been diagnosed with any mental health problems. However, he also said that he is not one to speak about his emotions and believes that he has suffered from depression and anxiety, as well as trauma, but has not spoken about these either personally or professionally until recent years.

Mr Jabari indicated that he has health concerns and that he is treated for diabetes and high blood pressure. In other respects, he considers himself to be healthy.

26    However, the report was focussed on the risk that Mr Jabari would reoffend and Dr Watts did not attempt to diagnose any mental disorder such as depression or anxiety.

The Tribunal's reasons

27    By the time of the Tribunal's decision, Direction 79 had been superseded by 'Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA' (Direction 90). The Tribunal's discussion of the best interests of minor children in Australia commenced by setting out the paragraphs of Direction 90 which required it to make a determination about whether non-revocation of the cancellation of Mr Jabari's visa was or was not in the best interests of a child affected by the decision, and the paragraphs which list factors that were required to be considered, where relevant (paras 8.3(1)-8.3(4)). That included para 8.3(4)(d), which required the Tribunal to consider the likely effect that any separation from Mr Jabari would have on the relevant children, taking into account his ability to maintain contact in other ways.

28    After some consideration of the manner in which it should approach the interests of Mr Jabari's two children in Malaysia, the Tribunal then turned to consider his submissions in relation to J and A. It summarised them as including a submission to the effect that due to substance and alcohol abuse issues in their extended family, they needed their father's presence for stability and financial and emotional support. Another submission the Tribunal described was that, despite Mr Jabari having been incarcerated for a number of years, there was evidence of a close bond with those children, in particular with J. The Tribunal also summarised submissions of the Minister, which accepted that it would be in those children's best interests for Mr Jabari to remain in Australia but argued that, due to his ability to maintain contact with them by other means and his history of supplying methamphetamine to their mother and extended family, this consideration should be given less weight.

29    The Tribunal accepted that Mr Jabari had a parental relationship with J and A, that his incarceration had affected his ability to bond with A, and that he had a close relationship with J. The Tribunal accepted that if Mr Jabari were to remain in Australia, he would be involved in the children's lives by parenting them along with their mother and that, while he could make a positive contribution to their lives, there was a risk that he might not remain drug free and he might reoffend. The Tribunal noted with some concern the fact that his prior offending included supplying methamphetamine to Ms Hawke and her extended family. The Tribunal set out passages from Ms Hawke's statement about the impact of not having Mr Jabari's help to bring up the children, and also confirming that it was unlikely that they would move to Iraq should he be returned there.

30    The Tribunal quoted the comment in Dr Watts's report which is reproduced at [19] above that indigenous children are at particular risk without the presence of a father, but it noted that Dr Watts had not met or assessed Ms Hawke, J or A. It also quoted from part of the letter from the Wirraka Maya Health Service which is set out at [15] above. The Tribunal's conclusions as to the best interests of J and A were then as follows (footnotes removed):

170.    The Tribunal accepts that the children's separation from their father has been made more difficult by their geographical location. The Tribunal also accepts on the evidence that their family circumstances are such that they would benefit from stable parenting in an illicit substance free environment. The Tribunal further accepts that some of these risk factors may be increased because the children are Aboriginal, however there was limited evidence as to the specific impacts that this would have on the Applicant's children.

171.    The Tribunal acknowledges that during the Applicant's incarceration, particularly since being moved to Karnet Prison Farm, which is a significant distance from Port [Hedland], he has maintained contact with all his children through electronic means and that there is no reason why that could not continue if he were to be removed to Iraq. The Tribunal accepts, however that such contact is not a substitute for personal contact, particularly given the young ages of the children.

172.    While there is material before the Tribunal concerning alleged family violence to which there is some mention of Ms J being exposed, the Tribunal considers that there is nevertheless insufficient evidence to establish that either of the children have been exposed to family violence by the Applicant.

173.    Taking all of the considerations identified in para 8.3(4) of Direction No 90 into account, it is the Tribunal's finding that the best interests of the Applicant's two children in Australia, Ms J and Mstr AH, would be served by the Applicant remaining in Australia and thus weigh heavily in favour of the revocation of the Cancellation Decision.

31    The Tribunal's consideration of Mr Jabari's medical and psychological conditions came later under the heading of impediments he would face if removed to Iraq. Once again, the Tribunal set out the paragraph from Direction 90 which required consideration of this. It referred to Mr Jabari's submissions that he suffered from medical issues and was on nine different medications per day. It set out the country information quoted in his SOFIC about the poor state of health services in Iraq. It summarised other evidence about his health, including Dr Watts's observations that Mr Jabari had not previously been diagnosed with any mental health problems, but that he had believed he suffered from depression and anxiety. The Tribunal's conclusion on these subjects was as follows (at para 221):

The Tribunal accepts on the evidence that the Applicant suffers from a number of health problems, including asthma, high blood pressure and diabetes, which are managed by medication. He also has food allergies, which by the reference to the presence of an Epi-Pen, may be inferred to be serious. However, there is no evidence before the Tribunal to suggest that the Applicant suffers from the mental health problems claimed or that any of his physical health problems present particular challenges from the perspective of health management. The Tribunal accepts that the standard of the Iraqi health system may not be the same as that available in Australia. However, there is no evidence that the Applicant would be denied access to the Iraqi health system or would otherwise not have access to services that are available to other Iraqi citizens. Further, while the Tribunal accepts that the Applicant would suffer emotionally from separation from his family, there is no evidence that the Applicant would be in need of specific mental health services in Iraq for this reason.

32    In its conclusion at the end of its reasons, the Tribunal repeated that the best interests of Mr Jabari's children weighed heavily in favour of revoking the decision to cancel the visa. It found that the impediments he would face if he was returned to Iraq also weighed slightly in favour of revocation. However, in the end it concluded that the primary considerations of the protection of the Australian community and the expectations of that community outweighed the countervailing considerations of the best interests of the children, impediments on return, and Mr Jabari's links to Australia, which together the Tribunal described as 'strong'. The Tribunal thus decided not to revoke the cancellation of Mr Jabari's visa.

The primary judge's decision

33    The grounds of review before the primary judge alleged that the Tribunal had fallen into jurisdictional error in the following ways:

(a)    it failed to give proper consideration to what was in the best interests of Mr Jabari's children, in particular as required by para 8.3(4)(d) of Direction 90, in that it did not deal with his submission about the adverse psychological and behavioural impact on children of a parent who is incarcerated and absent for a prolonged period; and

(b)    it failed to carry out its statutory task of review with respect to assessing Mr Jabari's representations as to impediments he may face upon his return to Iraq, in that it failed to consider a clearly articulated argument and failed to give his representations on that subject active intellectual consideration.

34    In relation to the first of these grounds, Mr Jabari submitted to the primary judge that the Tribunal had failed to actively engage with the question of how a permanent separation from Mr Jabari would affect J and A, other than in the most cursory fashion.

35    While the primary judge acknowledged that para 8.3(4)(d) of Direction 90 required the Tribunal to consider the likely effect that separation from Mr Jabari would have on the children, his Honour also observed that there needed to be a focus on the nature of the representations that Mr Jabari had advanced on that subject. It was necessary to consider the cogency of the material and the place it had in the assessment of Mr Jabari's claims.

36    The primary judge drew a contrast between this case and Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172; (2021) 287 FCR 294 in which, he said, there were detailed submissions about the likely detrimental effect on the appellant's children of long-term separation. In the present case, according to his Honour, 'the representations about the adverse effects of separation on the children were sparse, at best': primary judgment (PJ) at [43]. At [44] his Honour found:

The applicant gave some short evidence in an earlier statement that 'In the event my visa cancellation is not revoked this would create a devastating impact to all my children in different ways' and he referred to his daughter waking up screaming at night. Similar statements were expressed elsewhere. But this material was before the Tribunal and in my view was taken into account.

37    At PJ [45] the primary judge declined to:

infer that the Tribunal failed to take an aspect of the applicant's representations into account when that aspect was less developed than other parts of the representations, and the Tribunal otherwise dealt comprehensively, as it did, with the representations about the childrens' best interests.

38    While his Honour acknowledged the passages in Mr Jabari's SOFIC where representations were advanced about the effects on children of an incarcerated or detained parent, his Honour found that (at PJ [46]):

… this submission appears to have been made in the context of the recognition that the applicant's 'prior conduct has negatively impacted his children only by effecting [sic] their ongoing separation during his terms of imprisonment' (SOFIC at [104]). That is, these representations were about past and present harm to the children, rather than about the likely effects of permanent separation in the future. But in any event the Tribunal took into account future effects.

39    The primary judge appeared to describe this consideration of future effects as including the positive effects that the children would experience if the cancellation of the visa were revoked so that Mr Jabari could resume parenting them, and also the fact that if the cancellation was not revoked, he could maintain contact with them through electronic means, acknowledging the Tribunal's finding that this was no substitute for personal contact, particularly given the young ages of the children.

40    His Honour considered it to have been considerably in Mr Jabari's favour that the Tribunal concluded that the best interests of J and A would have been served by him remaining in Australia and that this weighed heavily in favour of revocation of the cancellation decision. His Honour concluded (at PJ [50]-[51]):

In my view, the Tribunal's determination both of the fact that the [children's] best interests favoured revocation, and that the consideration weighed heavily in favour of revocation, leads to an inference that the Tribunal did not overlook or fail to consider the representations about the impact his removal from Australia would have on the children. I infer that the Tribunal did take these matters into account in its assessment of the best interests of the children.

Having read the Tribunal's reasons at [151] to [173] and [262], I am not in doubt that the Tribunal fairly considered the applicant's representations concerning clause 8.3(4)(d).

41    The primary judge also found that even if the Tribunal had fallen into error in the manner alleged, that would not have been material. His Honour's view that further consideration of Mr Jabari's submission could not realistically have affected the outcome appeared to rest on the fact that the Tribunal had found in any event that the interests of the children weighed heavily in favour of revocation.

42    The primary judge thus rejected the first ground of review.

43    As to the second ground, the primary judge summarised the Tribunal's consideration of Mr Jabari's claims about his physical and mental health problems and the state of the Iraqi health system and concluded that there was no error in the Tribunal's approach. His Honour considered that the Tribunal was aware of Mr Jabari's claims and it considered that, notwithstanding the limitations of the Iraqi health system, his health concerns required nothing more than medication and would be able to be managed. It recognised that there was a general shortage of drugs and supplies in acknowledging that the standard of the Iraqi health system might not be the same as that in Australia, but there was no evidence before it that the particular drugs that Mr Jabari needed would be unavailable. The primary judge was satisfied that the Tribunal engaged intellectually with Mr Jabari's representations on this aspect. His Honour also considered that the Tribunal was under no duty to make its own inquiries about the Iraqi health system. He thus rejected the second ground of review.

The parties' cases on appeal

44    By the two grounds of appeal Mr Jabari contends that the Tribunal erred in the same two ways as he alleged before the primary judge. In relation to the first ground, concerning the interests of the children in Australia, the essence of the ground is that the Tribunal failed to actively engage with the question of how a permanent separation from Mr Jabari would affect the children. This is said in a context where para 8.3(4)(d) of Direction 90 required the Tribunal to consider the likely effect that any separation would have on the child, and where Mr Jabari had made submissions that it would cause significant trauma for the children if he were to be unable to return to them and his period of incarceration had already adversely affected them.

45    According to Mr Jabari's submissions on ground one, the primary judge erred because his Honour mischaracterised or did not appreciate an important aspect of Mr Jabari's submissions to the Tribunal about the likely future effects on the children of permanent separation from him. His Honour characterised the submission as being about whether Mr Jabari's past conduct had negatively affected the children. Mr Jabari refers to several submissions made to the Tribunal and witness statements before it which, he says, were about the future effect of separation on the children, contrary to the primary judge's characterisation. Mr Jabari submits to this Court that while the submissions to the Tribunal were brief, they raised a significant matter and were supported by academic evidence and his own evidence. The Tribunal's omission to deal with this in otherwise comprehensive reasons means, he submits, that the Court should infer that the Tribunal overlooked these submissions. He submits that the fact that it referred to much of the 'minutiae' of Mr Jabari's case but not to these significant representations supports an inference that it overlooked them.

46    Mr Jabari also submits, relying on Nathanson v Minister for Home Affairs [2022] HCA 26, that the threshold for materiality is not onerous and that if there had been proper consideration of the children's interests the outcome could have been different, even though the Tribunal had concluded that their interests weighed heavily in favour of revocation.

47    The Minister resists ground one on the basis that the primary judge was correct to characterise Mr Jabari's submissions about the effect of incarceration on the children as going to the effects of his past conduct rather than the impact of separation in the future. The Minister also submits that, since the Tribunal concluded that the interests of the children weighed heavily in favour of revocation, there is little question that the Tribunal understood Mr Jabari to have submitted that long-term separation would be adverse to them. The aspect of Mr Jabari's submissions to the Tribunal on which he now relies – the effect of long-term separation on the children – was less developed, the Minister says, than other aspects of his submissions and this means it should not be inferred that the Tribunal failed to take it into account, in view of its otherwise comprehensive reasons. The Minister also submits that in any event any failure to take it into account would not have been material, because in view of the Tribunal's conclusion that the interests of the children weighed heavily in favour of revocation, further consideration of the brief submissions about the effect of long-term incarceration on them could not realistically have made a difference.

48    The second ground of appeal asserts that the Tribunal misunderstood the DFAT report and incorrectly found that the Iraqi health system was functional. It also claims that the Tribunal did not engage in active intellectual consideration as to whether Mr Jabari would have access to the basic medication that he required daily. Mr Jabari's submissions to this Court essentially repeat the submission to the primary judge that the Tribunal misunderstood the DFAT report about the Iraqi health system. He points to the existence of some material before the Tribunal about Mr Jabari's health problems and submits that in those circumstances the Tribunal's 'relatively bland finding' at para 221 of its reasons (reproduced at [31] above) indicates a failure to engage with the serious claim that Mr Jabari may not have access to the medication that he required daily.

49    The Minister's submissions in response on the second ground essentially support the correctness of the primary judge's approach outlined above. He submits that it was a matter for the tribunal to assess matters such as shortages of drugs in the Iraqi health system and what that might mean for the availability of the drugs Mr Jabari needed. The Minister refers to Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [26] in support of the submission that assertions of failure to give active intellectual consideration to a matter must be treated with some caution.

Principles

50    In Plaintiff M1/2021 at [23]-[27] a majority of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) discussed the approach to be taken to claims that a person or tribunal making a decision under s 501CA(4) of the Migration Act has failed to engage with representations in favour of revocation made by a non-citizen. Their Honours held that the decision-maker is not required to treat every statement within the representations as a mandatory relevant consideration: Plaintiff M1/2021 at [23]. While the decision-maker must read, identify, understand and evaluate them, from that point he or she is able to 'sift them, attributing whatever weight or persuasive quality is thought appropriate', with the weight to be afforded to any particular representation a matter for the decision-maker: Plaintiff M1/2021 at [24].

51    In ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[9], a Full Court comprised of Mortimer, Colvin and O'Sullivan JJ emphasised two aspects of the statutory task, having regard to Plaintiff M1/2021. The first is a distinction between considering representations in the sense of averting to and understanding them, and considering them in the sense of evaluating their significance in the course of making the decision. In their Honours' view, a consequence of Plaintiff M1/2021 is that (ECE21 at [7]):

it is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance. Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister's reasons, even a matter that was clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made.

52    In other words, provided the decision-maker has averted to and understood the representations the applicant has made, the degree or quality of engagement they provide to a given representation is a matter for them, as long as they act within the bounds of rationality and reasonableness. Their Honours held that, accordingly (ECE21 at [8]):

approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: [Plaintiff M1/2021] at [26]. This, it seems, was the aspect of Full Court decisions of this Court, like [Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589], that the High Court disagreed with.

53    The second aspect of the statutory task which their Honours thus emphasised was that the weight to be afforded to any particular representation is a matter for the Minister (or other decision-maker), including forming a view that the representation should be given no weight: ECE21 at [9]. It is necessary, however, for the decision-maker to be aware of and to have understood the representation.

54    ECE21 was decided after we heard argument in this matter and the parties have not had any opportunity to address us, for example, on whether in light of Plaintiff M1/2021 it remains open to submit that the Tribunal did not engage with a representation made by Mr Jabari to the requisite degree. However, we do not consider that the case impacts on the outcome of either ground.

55    In relation to ground 1, that is because ECE21 concerned a decision of the Minister, not the Tribunal, and ground 1 relies on a specific requirement in Direction 90 for the Tribunal to consider the likely effect that any separation from Mr Jabari would have had on J and A, taking into account their ability to maintain contact in other ways: para 8.3(4)(d). Since it is common ground that this was relevant on the material before the Tribunal, it follows that it was a relevant consideration, made mandatory by force of Direction 90 and s 499 of the Migration Act: see FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] and cases cited there. It follows that representations about the likely effect that any separation from Mr Jabari would have had on J and A are mandatory relevant considerations and if the Tribunal were to treat them as being of no significance, that would be a jurisdictional error. The established principles about the degree of consideration required apply. In summary, they are:

(1)    A conclusion that the decision-maker 'has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof': Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48].

(2)    What is required is the reality of consideration by the decision-maker, the Court on judicial review being required to assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the relevant matter: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ).

(3)    The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ).

(4)    Although the likely effect that any separation from Mr Jabari would have had on his children was a mandatory consideration because of Direction 90, not because it was among his representations, the representations nevertheless remain relevant. The requisite degree of consideration is affected by the centrality, to the issues, of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed in the representations: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)] (Reeves, O'Callaghan and Thawley JJ). It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]. The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] (Robertson J).

(5)    Whether or not a matter has been considered can be a matter of inference drawn from the reasons as a whole. For example, there may be material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150 at [19] (Perram J). On the other hand, the inference that a failure to set out reasoning in relation to a matter signifies a failure to consider it should not be drawn too readily where the reasons are otherwise comprehensive and the issue has at least been identified at some point: Applicant WAEE at [47].

56    Ground 2 is different, in that neither it nor Mr Jabari's submissions rely on Direction 90 as making the question of Mr Jabari's medical and psychological needs a mandatory relevant consideration. However, as will be described below, we consider that even if it is assumed that it was mandatorily relevant, Mr Jabari has not discharged the onus of establishing that the Tribunal failed to have regard to it.

Ground 1 – The interests of the children in Australia

57    We have, respectfully, come to the conclusion that the primary judge erred in his treatment of the first ground of review, so that the first ground of appeal must be upheld. As we have said, the starting point is that under Direction 90, the Tribunal was required to consider the likely effect that any separation from Mr Jabari would have had on his children, taking into account their ability to maintain contact in other ways. There were representations and submissions before the Tribunal which raised, as a matter relevant to that, the psychological impact that long-term separation from a parent can have on a child, especially at a young age. These included:

(a)    Mr Jabari's initial representation to the Minister that the separation of the children from their father had had a detrimental impact on them and that this would be likely to be exacerbated by 'the separation the children would experience, if separated from the Applicant, as their father', in context this was a reference to the separation that would ensue if the cancellation of the visa were not to be revoked;

(b)    Mr Jabari's further representation in the Personal Circumstances Form that his incarceration was 'already taking its toll' on the children's mental state and that if his visa cancellation were not revoked that would 'create a devastating impact to all my children in different ways', followed by a reference to J suffering nightmares and waking screaming asking for him and to A suffering from not having a father figure in his life;

(c)    the repetition of the substance of the above representations in the letter to the Department of 5 November 2020;

(d)    the statement in the letter from the Wirraka Maya Health Service about 'the long term cognitive development trauma' which will be caused by the children's separation from their father, supported by an unattributed statement about the trauma that children of incarcerated parents experience; and

(e)    Mr Jabari's statement to the Tribunal that J wakes up in the night crying for her father and that '[i]t will be even worse for her if I can never come home'.

58    In all that context, it was not, with respect, correct to understand the SOFIC as relying on the negative effect of separation as only relevant to the consequences of Mr Jabari's incarceration as a result of his past conduct. The relevant passages from the SOFIC are reproduced at [20]-[21] above. It is true that para 104 of the SOFIC does refer to prior conduct, but this is clearly a specific reference to para 8.3(4)(c) of Direction 90, just as the SOFIC at para 103 referred to a particular consideration made mandatory by para 8.3(4)(b). We do not read the rest of the passage we have quoted as being confined by the specific reference in para 104. Rather, together with the other representations that we have summarised, the rest of the passage is making the broader point that in future, J and A are likely to suffer from psychological and physical disadvantage due to the absence of one of their parents. This was footnoted to an academic article on the subject. That understanding of the passage finds support in the statement in para 105 that the children have 'already' been emotionally and physically disadvantaged, implying that this will continue or get worse in the future, and in the reference in para 107 to 'certain, permanent separation'.

59    It would be odd to understand an applicant to be emphasising those matters solely in order to bolster the point, potentially disadvantageous to him, that his prior conduct had traumatised his children. It is clear that this is not what the SOFIC or the rest of the representations were seeking to convey. Rather, they were seeking to make a simple contention that if Mr Jabari's young children were to be separated from their father for a long time or indefinitely, that would cause additional trauma and psychological problems. While it was a matter for the Tribunal whether to accept this, and how much weight to put on it, it was a serious point, cogently (and repeatedly) put and supported by other material, and the Tribunal was required in the context of para 8.3(4)(d) to consider it.

60    Instead, the Tribunal's consideration of the impact of separation on the children was fragmentary and did not address the potential impact in the long-term future. It was fragmentary because while it referred to a relevant passage from Ms Hawke's statement, and a passage from the Wirraka Maya Health Service letter, it failed to refer to the much more direct representations about the trauma the children were suffering and would continue to suffer that were made by Mr Jabari himself and on his behalf in the SOFIC. And then in the deliberative part of its reasons on the interests of the children (reproduced at [30] above), there is no mention of the submission or evidence about the trauma that long-term separation would cause in future. In light of the relatively prominent place that the submission took in Mr Jabari's representations and submissions, we infer that this is because the Tribunal misunderstood the representations as only referring to the effect of Mr Jabari's prior conduct or of his incarceration to date. It is not because the point was subsumed in findings of greater generality: cf. Applicant WAEE at [47].

61    We do not accept the Minister's submission that the Tribunal's conclusion that the interests of the children weighed heavily in favour of revocation means that the Tribunal understood Mr Jabari to submit that long-term separation would be adverse to them. The Tribunal's conclusion in that regard may be understood as based on the matters set out in paras 170-172 of the Tribunal's reasons, none of which avert to the submission about trauma caused by long-term future separation. Given the importance of the submission, and the potential for the impact to which it referred to have lasted for many years in view of the young ages of the children, it would be odd if the Tribunal did avert to the submission without referring to it, while at the same time referring to several other matters.

62    We also do not accept the Minister's submission that the error we have identified was not material. The Tribunal's weighing of all the matters it had considered at the end of its reasons showed that there were strong considerations pointing both ways. While the Tribunal did conclude that the interests of the children weighed heavily in favour of revocation, there was a realistic possibility that if it had appreciated the submission about the trauma of long-term separation, it would have put even more weight on those interests, and that this may have tipped the balance towards a different outcome on the review. See, for example, Dunasemant v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] FCAFC 13; (2022) 292 FCR 155 (Davies, Rangiah and Cheeseman JJ). Nathanson confirms that the threshold for materiality is not a high one.

63    Ground 1 will be upheld.

Ground 2 – Mr Jabari's physical and mental health issues

64    Given the conclusion we have reached in relation to ground 1, it is appropriate to be brief in relation to ground 2. It has not been made out. In its reasons the Tribunal recorded Mr Jabari's submissions about his medical issues, including anxiety, and the need for nine medications per day. It recorded his serious concerns that he would not be able to access adequate health care in Iraq. It noted, and can be taken to have deliberated on, the lack of expert medical evidence before it regarding Mr Jabari's asserted conditions. It described the evidence that was before it in some detail.

65    The Tribunal accepted that Mr Jabari suffered from a number of described medical conditions. It accepted that the standard of the Iraqi health system may not be the same as that available in Australia. That is a conclusion about the import of the country information which was open to the Tribunal. Contrary to Mr Jabari's submissions, it does not indicate a view that the Iraqi health system was functioning. And even if it did, any disparity between that view and the evidence would be a matter of degree, and any error resulting from that disparity would be an error within the jurisdiction of the Tribunal.

66    The Tribunal's conclusion (set out at [31] above), as 'bland' as it may have been, specifically refers to the lack of medical evidence substantiating Mr Jabari's conditions and so evidences consideration of the material that was before the Tribunal. There is no merit in ground 2. That is so even if it is assumed in Mr Jabari's favour that consideration of his representations about his health issues was mandatory, so that the distinction between two different levels of 'consideration' drawn in ECE21 does not arise.

67    Ground 2 is dismissed.

Conclusion

68    Ground 1 will be upheld and the appeal will be allowed. The decision of the primary judge will be set aside and in lieu it will be ordered that the decision of the Tribunal be set aside, the matter be remitted to the Tribunal for determination according to law, and the Minister pay Mr Jabari's costs of the application. As Mr Jabari did not seek his costs of the appeal, there will be no order as to those costs.

Associate:

Dated:    26 June 2023