Federal Court of Australia
Shi v Minister for Home Affairs [2023] FCAFC 136
ORDERS
Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1 The appellant is a citizen of the People’s Republic of China who held a resident visa until 25 June 2020 when the respondent Minister cancelled it pursuant to s 501(3A) of the Migration Act 1958 (Cth).
2 On 18 February 2021, following representations made by the appellant to the Minister for the revocation of the Minister’s decision to cancel the appellant’s visa, the Minister made a decision under s 501CA(4) of the Act not to revoke his earlier decision.
3 The appellant then applied for judicial review of that decision in this Court. One of the grounds of judicial review was that the Minister had failed to engage, in the requisite manner, with a representation that the appellant had made to the Minister that he was at a considerable risk of suicide if removed to China (suicide risk representation).
4 The primary judge dismissed that application: see Shi v Minister for Home Affairs [2022] FCA 708 (J). For the reasons developed below, the primary judge was correct to do so.
B. Background and the representations made to the Minister
5 On 11 June 2020, the appellant was convicted in the District Court of Western Australia for a contravention of s 220 of the Criminal Code Compilation Act 1913 (WA). That section prohibits the possession of “child exploitation material”. The appellant was sentenced to imprisonment for 14 months. His appeal against the sentence was dismissed.
6 On 25 June 2020, the Minister (acting through a delegate) cancelled the appellant’s visa, as was required by s 501(3A) of the Act. The appellant was then notified of the Minister’s decision and invited to make representations to the Minister about the revocation of the cancellation decision.
7 The appellant took up that invitation. The representations made on behalf of the appellant included a Psychological Report prepared by Dr Sam (Waisam) Hoong, a clinical psychologist. Dr Hoong’s report included:
12 Psychological synopses
...
It is clear that any deportation following Mr. Shi’s serving the sentence would cause him immense psychological distress. He has very low self-esteem, that in the past has been bolstered by his ability to care for his family. He is socially inadequate so being returned to China would further reinforce and demonstrate to him his inadequacy. I consider that his deportation would put him at considerable risk of suicide. His deportation would also be very psychologically injurious to his mother and half-sister.
From psychological perspective, Mr Shi’s offending was more due to his naivety and sense of woeful inadequacy, rather than any prurient interest in child pornography.
(emphasis added)
8 Dr Hoong’s report is the basis of the suicide risk representation.
C. The Minister’s reasons for Decision
9 In support of his decision under s 501CA(4) of the Act not to revoke the cancellation of the appellant’s visa, the Minister provided a Statement of Reasons.
10 As the appellant failed the character test, the focus of the Reasons was on whether there existed “another reason” why the cancellation decision should be revoked. It is sufficient, for the purposes of this appeal, to identify the following parts of the Reasons.
11 The Minister’s reasoning with respect to the extent of impediments that the appellant would face if he were to be removed from Australia was set out at Reasons [21] to [26]:
21. I have also had regard to the impediments that Mr SHI will face if removed from Australia to his home country of China in establishing himself and maintaining basic living standards.
22. Mr SHI states the living standard in the village where his mother grew up is low and he does not like living there. He is not close to the relatives he has in China and he would have no support there.
23. Mr SHI’s representative acknowledges he will not face any cultural and language barriers returning to China, but he will encounter financial difficulty. His relatives in China are poor and it will be difficult for Mr SHI to find employment to repay the $600,000 loan he has in Australia.
24. Mr SHI suffers from stress and depression. A psychologist’s report dated 23 September 2020 states Mr SHI’s ability to care for his family in Australia bolstered his very low self-esteem; whereas removing him from his family would lower his self-esteem further. The removal would cause Mr SHI ‘immense psychological distress’, which would put him ‘at considerable risk of suicide’.
25. Mr SHI’s representative states Mr SHI does not agree with the new security law in Hong Kong and he is against the Chinese ‘one party politics’. However, he has not made his political views publicly known.
26. I take into account that the living standard of the village where Mr SHI’s relatives reside may not be comparable to Australia. However, I find that, as Mr SHI would not receive any support from his relatives and does not want to live in that area, there is no apparent obstacle to him moving away from the village and re-establishing himself in a bigger city in China, where the standard of living may be higher and opportunities greater. Moreover, Mr SHI is young, physically healthy, without any cultural and language barriers, and his work experience would assist him to find employment. I accept that the absence of family and social support will pose a degree of hardship for him, but he would be able to keep in touch by electronic and other means.
12 The Minister’s conclusion was expressed as follows:
60. As explained above, in coming to a decision on Mr SHI’s request for revocation of the mandatory cancellation of his visa, I find Mr SHI made representations in accordance with the invitation, but I was not satisfied that Mr SHI passes the character test (as defined in s 501of the Act).
61. In considering, in light of Mr SHI’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr SHI’s younger half-sister, ... I found that their best interests would be served by the revocation of the original decision.
62. In addition, I have considered the length of time Mr SHI has made a positive contribution to the Australian community for over 10 years and the consequences of non-revocation of the original decision for his other family members, and the extent of impediments that Mr SHI would face if he were removed to China.
63. On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crime committed by Mr SHI, which is of a sexual nature, and involved a vulnerable member of the community, that being a minor.
64. Further, I find that the Australian community could be exposed to significant harm should Mr SHI reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr SHI.
65. I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa.
66. I concluded that Mr SHI represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community and the expectations of the community, outweighed the best interests of his minor half-sister, as a primary consideration, and any other considerations as described above. These include his lengthy residence and ties, employment, and familial to Australia, and the hardship Mr SHI, his family and social networks will endure in the event the original decision is not revoked.
67. Therefore, I am not satisfied that there is another reason why the decision to cancel Mr SHI’s Class BB Subclass 155 Five Year Resident Return visa should be revoked, as required by s501CA(4)(b)(ii) of the Act. Consequently, my power to revoke is not enlivened and Mr SHI’s visa remains cancelled.
D. The application for judicial review and the primary judge’s decision
Application for judicial review
13 The amended originating application advanced two grounds of review. Only the second ground is relevant to this appeal. It was in the following terms:
2 The respondent constructively failed to exercise his jurisdiction in the following respects:
Particulars
(a) The applicant, through the report of Dr Hoong of 9 September 2020 made a representation that deportation would cause him “immense psychological distress” and that “deportation would put him at considerable risk of suicide”.
(b) These representation were noted by the respondent in [24] of his decision.
(c) In determining the applicant’s extent of impediments if removed, the respondent stated “I accept that the absence of family and social support will pose a degree of hardship” but failed to engage with the “human consequences involved”: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225: 364 ALR 423 at [3]
(d) The respondent was required to engage in an active intellectual process with significant and clearly expressed relevant representations concerning the risk of suicide if the applicant is returned to China, and failed to do so.
14 The primary judge noted that she was conscious of the limited role of the Court in reviewing the exercise of administrative decision-making powers, particularly in respect of a decision that involves the exercise of a wide discretionary power, such as s 501CA(4) of the Act (citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at 509 [26]) (J[35]).
15 She also noted that both grounds of judicial review alleged a failure to engage in an “active intellectual process” in relation to representations relating to the effect of the non-revocation of the appellant’s visa; and that as the decision of the plurality in Plaintiff M1/2021 makes plain, labels such as “active intellectual process” must be understood in their proper context and do not give rise to a kind of general warrant for the Court on review to scrutinise the procedural and substantive merits of the Minister’s decision with a view to substituting the Court’s own views for those of the administrative decision-maker. Her Honour also noted that a finding that a decision-maker did not apply an “active intellectual process” to a question that the decision-maker was required to consider should “not lightly be made and must be supported by clear evidence” (citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at 364 [48] (Griffiths, White and Bromwich JJ); and GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 at 220 [32(g)]) (Flick, Griffiths and Moshinsky JJ)) (J[36]).
16 The primary judge then summarised the submissions made by the appellant and in particular the appellant’s submissions that:
(1) the Minister did not, as a matter of law, adequately consider the representations that the appellant had made (citing Carrascalao at 383 [131]) (J[37]);
(2) his grounds of review did not seek to attack the Minister’s “weighing exercise”. Rather, he contended that the Minister erred in failing, in substance, to actively engage with his representations, relying on Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at 607 [38] to [39] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) (J[38]);
(3) the requirement to set out the reasons for decision in s 501G(1)(e) of the Act is an important accountability mechanism: Omar at 602 [34(a)] (J[39]); and
(4) it was not sufficient for the Minister to “just recount” the risk of suicide and that the Minister was obliged to engage in some “reflection upon the whole consideration of the human consequences involved” (citing Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at 630 [3] (Allsop CJ, with whom Markovic J agreed; Steward J agreeing in the result)) (J[40]).
17 Her Honour also noted that the appellant placed considerable reliance on the decision of Justice Perram in Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; (2019) 164 ALD 139. She noted in particular the appellant’s submissions that:
(1) to engage with the representations made at the requisite level, the Minister’s Reasons should have included a reflection that involved discussion and consideration of the feared harm eventuating (citing Ezegbe at [32] to [36]);
(2) on reading the Minister’s decision, the reader should be able to discern whether the Minister accepted that the claimed risk exists (citing Ezegbe at [33]);
(3) the Minister’s decision gave no indication as to whether the Minister accepted the representations made as to the risk of suicide by the appellant; and
(4) thus, the structure, tone and content of the Minister’s decision, and the absence of any engagement in a factual assessment of whether the articulated risks of suicide were likely to eventuate, demonstrated that the Minister had failed to consider, in the relevant legal sense, the representations that the appellant had made (J[41]).
18 The primary judge then considered the first ground of judicial review. Although that ground does not inform the grounds of appeal, her Honour’s reasoning concerning the appellant’s reliance upon Ezegbe is relevant. At J[45], the primary judge stated:
As to Mr Shi’s reliance on Ezegbe, the Court’s finding of error in that case was made in a different context to the circumstances of this case. Ezegbe concerned an application for review of a decision to cancel a visa on character grounds. The applicant, Mr Ezegbe, applied to the Minister seeking revocation of the cancellation decision and made representations which included that he would be at risk of harm if returned to Nigeria. He contended that he would be targeted by both sides of the conflict concerning the right of the region of Biafra to autonomous self-rule. In resolving the application against the Minister, Perram J found that the Minister gave consideration to the consequences that would emerge from Mr Ezebge returning to Nigeria holding those fears and not the actual consequences of the fears held, or the actual harm that might likely eventuate on his return to Nigeria. That is, the Minister fell into error by failing to deal with aspects of the representations which were made to him and were not related to claims which might be made for a protection visa: see Ezegbe at [37] – [38] and the cases cited therein. It is this distinction between Ezegbe and the circumstances of the present application that must be appreciated. This is not a case where Mr Shi submits that the Minister considered a different harm, fear or consequence to the one put forward by him concerning the risk of harm to his half-sister, nor is it said that there was a failure of consideration in a total sense, but instead there is said to be, effectively, a constructive failure on the Minister’s part arising from a lack of active intellectual engagement with particular aspects of the representations that were put forward on behalf of Mr Shi.
19 The primary judge then turned to the second ground of judicial review. As her Honour’s reasoning on this ground of review is the subject of challenge in this appeal, it is appropriate to set out that reasoning in full:
Ground 2 – Mr Shi
47. Ground 2 is directed to Mr Shi’s representation with respect to his risk of suicide if returned to China. Mr Shi submits that the Minister did not engage with this submission in the requisite way.
48. The Minister addressed this representation as part of his consideration of the extent of impediments Mr Shi would face if removed. The Minister accepted that Mr Shi suffers from stress and depression. The Minister quoted from a psychologist’s report in which the psychologist concluded that removal would cause Mr Shi “immense psychological distress” which would put him “at considerable risk of suicide”: R[24], extracted in full at [23] above. It was the psychologist’s opinion that Mr Shi’s ability to care for his family in Australia “had bolstered his very low self-esteem; whereas removing him from his family would lower his self-esteem further”: R[24]. As part of his consideration, the Minister found that on removal it would be open to Mr Shi to locate himself in a bigger city in China where the standard of living may be higher and the opportunities may be greater: R[26]. He regarded Mr Shi’s age, health, work experience and lack of cultural and language barriers as being favourable for him to find employment. While the Minister recognised the hardship to Mr Shi resulting from the absence of family and social support, a fair reading of the Minister’s reasons reveals that the Minister was of the view that Mr Shi would likely find employment in a city in China and be able to keep in touch with his family by electronic and other means: R[26]. Both those matters are relevant in the context of what the psychologist says about the impact of removal on Mr Shi’s mental health given that the psychologist opines that Mr Shi’s ability to care for his family, prior to his incarceration, was important to his self-esteem.
49. As with ground 1, Mr Shi advances an argument in support of ground 2, that the Minister failed to “engage meaningfully” with Mr Shi’s risk of suicide. Again, the reasons, read fairly and as a whole, demonstrate that the Minister did correctly identify and engage with the relevant representations made by Mr Shi. The Minister accepted that Mr Shi suffered stress and depression and quoted from the psychologist’s report relied on by Mr Shi in relation to his risk of suicide.
50. The structure of R[26] indicates that the reference to Mr Shi being “young, physically healthy, without any cultural or language barriers” was an aspect of the Minister’s consideration of Mr Shi’s representation that the living standard in his mother’s village is low, he is not close to his relatives in China and that he would have difficulty finding employment.
51. Rather than being a formulaic dismissal of the representation in respect of Mr Shi’s risk of suicide if removed, the Minister’s reasons demonstrate that the Minister regarded the absence of cultural and language barriers coupled with Mr Shi’s work experience, as enabling him to establish himself in a bigger city, where the standard of living may be higher (with the result that he would not inevitably encounter the financial difficulty to the degree referred to in his representations). In the final sentence of R[26], the Minister returned to the issue of the hardship posed by his lack of family and social support, accepting that Mr Shi would encounter such hardship, but found that Mr Shi would be able to keep in touch by electronic and other means. The Minister referred to “a degree of hardship” in this sentence. Mr Shi’s complaint is really a complaint about weight — that this factor warranted greater weight than the Minister was prepared to attribute to it. I interpolate to note that Mr Shi’s submissions in support of ground 2 regarding the application of Ezegbe were not persuasive for the reasons set out at [45] above. As with ground 1, the fact that Mr Shi disagrees with the Minister’s ultimate assessment of the degree of hardship that he may suffer upon removal does not establish an error of law. Ground 2 must also be dismissed.
E. The Grounds of appeal and the appellant’s submissions
20 The appellant’s grounds of appeal are:
1. The Judge below erred in failing to find that in light of the clearly articulated representation about the Appellant’s risk of suicide, the Minister was required to engage with the representation and make a determination as to the weight to be accorded to it.
2. The Judge below erred in failing to find that in light of the clearly articulated representation about the Appellant’s risk of suicide, the Minister was required to engage with the representation and evaluate it, and failed to do so.
21 The appellant’s submissions (as they did before the primary judge) involve the following essential propositions:
(1) the suicide risk representation was clearly articulated;
(2) that representation was one that identified potentially grave consequences for the appellant;
(3) thus, the Minister was required to give to that representation consideration commensurate with its gravity;
(4) the Reasons did not reflect consideration of the suicide risk representation to a degree commensurate with the gravity of that representation and merely acknowledged or noted it;
(5) thus, it should be inferred that the Minister erred by failing to properly engage with the suicide risk representation; and
(6) the error was material and as such was a jurisdictional error.
22 At the core of the appellant’s submissions is the proposition that the gravity of the suicide risk representation required the Minister’s Reasons to display a level of consideration commensurate with that gravity.
23 However, as the Full Court of this Court (Mortimer J, as her Honour then was; Colvin and O’Sullivan JJ) explained in ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7], by reference to Plaintiff M1/2021, it is necessary to bear in mind “the important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand)”.
24 A failure to advert to and understand the representations put by an applicant seeking the revocation of the cancellation of a visa may amount to a jurisdictional error. Whether there has been such a failure may fall to be determined as a matter of inference to be drawn from the reasons given by the Minister. However, in considering whether the Minister’s reasons give rise to an inference that the Minister has not adverted to and understood the representations made, the Court is not to consider the degree or the quality of the Minister’s evaluation of the representations. As the Full Court in ECE21 explained 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… This, it seems, was the aspect of Full Court decisions of this Court, like Omar, that the High Court disagreed with”.
25 Thus, the appellant’s submissions invite an approach which is inconsistent with the approach to be taken as explained in Plaintiff M1/2021 and ECE21 and must be rejected.
26 In the present case, the Minister was required to advert to and understand the representations made by the appellant, including the suicide risk representation: Plaintiff M1/20201 at 504 [9], 508 [24] and 512 [36]. That the Minister did so and comprehended that the appellant had made the suicide risk representation is clear, as the primary judge found at J[49], from Reasons [24] where the Minister referred not only to the fact of Dr Hoong’s report, but also to various parts of its contents and quoted directly from the part of the report that contained the suicide risk representation. For the reasons set out above, no inference is available arising from the contended quality or degree of the Minister’s evaluation of the suicide risk representation. It follows that the appellant has not discharged his heavy onus of establishing that the Minister failed to advert to and understand that representation.
27 Having adverted to and understood the suicide risk representation, the Minister was then required to consider that representation, together with the other information before him and attribute to it whatever weight he considered appropriate (including no weight), in considering whether he was satisfied that there was another reason why the cancellation decision should be revoked (s 501CA(4)(b)): Plaintiff M1/2021 at [24]; ECE21 at [9]. As the primary judge noted at J[51], the appellant’s complaint is in truth a complaint that the Minister did not attribute sufficient weight to the suicide risk representation. For the reasons set out above, that argument is untenable.
28 The appeal should be dismissed with costs. We will make orders accordingly. The Court is grateful to the counsel for the appellant who acted for him on a pro bono basis in this appeal.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Snaden, Anderson and Goodman. |
Dated: 16 August 2023
