Federal Court of Australia

Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 173

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    On 12 October 2021, the second respondent (the Tribunal) affirmed the decision of a delegate of the first respondent (the Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) refusing to revoke the cancellation of the appellant’s visa.

2    The appellant’s application for judicial review of the Tribunal’s decision was dismissed by a judge of this Court in Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 450. The appellant appeals from that judgment.

3    We shall summarise the factual background, the legislative scheme, the Tribunal’s decision and the primary judge’s reasons for judgment before considering the parties’ submissions.

Factual background

4    The appellant is a citizen of Lebanon. He arrived in Australia in June 2006. He is now 41 years old.

5    On 14 September 2020, the appellant was sentenced in the District Court of Western Australia to 2½ years’ imprisonment for one count of “Criminal Damage by Fire”.

6    On 29 October 2020, the Minister cancelled the appellant’s Class BB Subclass 155 Five Year Resident Return visa under s 501(3A) of the Act.

7    On about 16 November 2020, the appellant made representations to the Minister seeking that the cancellation decision be revoked under s 501CA(4) of the Act. On 20 July 2021, the Minister’s delegate made a decision refusing to revoke the cancellation decision.

8    On 22 July 2021, the appellant applied to the Tribunal for review of the delegate’s decision pursuant to s 500(1)(ba) of the Act. On 12 October 2021, the Tribunal affirmed the decision under review.

9    On 1 November 2021, the appellant sought judicial review of the Tribunal’s decision in the Federal Court of Australia. That application was dismissed by the primary judge on 29 April 2022.

The legislative scheme

10    Section 501(3A) of the Act provides that the Minister must cancel a visa if satisfied, relevantly, that the visa holder does not pass the character test because of the operation of paragraph (6)(a) on the basis of paragraph (7)(c) (substantial criminal record), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State.

11    Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record. Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

12    As the appellant had been sentenced to imprisonment in excess of 12 months and was serving his sentence on a full-time basis in a custodial institution, the Minister cancelled the appellant’s visa under s 501(3A) of the Act.

13    Section 501CA(3)(b) of the Act requires the Minister to invite a person whose visa has been cancelled under s 501(3A) to provide representations about revocation of the original decision. The appellant made such representations.

14    Section 501CA(4) of the Act provides:

(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.

15    The decision of the Minister’s delegate refusing to revoke the cancellation decision was made pursuant to s 501CA(4) of the Act. When conducting its review of the delegate’s decision, the Tribunal was also required to apply s 501CA(4).

16    Section 499(1) of the Act allows the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires a person or body to, “comply with a direction under subsection (1)”.

17    Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), which commenced on 15 April 2021, gave directions for the making of decisions under ss 501 and 501CA of the Act. Direction 90 has since been superseded by Direction 99, which commenced on 3 March 2023, but Direction 90 remains relevant to the present case.

18    The Preamble to Direction 90 is contained in paragraph 5. Paragraph 5.1(4) states that the purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 5.2 sets out a number of principles that provide the framework for decision-makers.

19    Part 2 (paragraphs 6 to 9.4) has the heading, “Exercising the discretion”.

20    Paragraph 6 provides:

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

21    The expression “decision-maker” is defined in paragraph 4(1) to include the Tribunal when making a decision under s 501CA of the Act.

22    Paragraph 7 provides, relevantly:

…

(2)    Primary considerations should generally be given greater weight than the other considerations.

(3)    One or more primary considerations may outweigh other primary considerations.

23    Paragraph 8 states that the following are primary considerations:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the best interests of minor children in Australia;

(4)    expectations of the Australian community.

24    Paragraph 8 goes on to explain each of the primary considerations and specify matters that decision-makers should or must consider.

25    Paragraph 8.1(2) provides that in respect of “protection of the Australian community”, decision-makers should give consideration to the nature and seriousness of the non-citizen’s conduct to date, and to the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct. Paragraph 8.1.2(2) requires that in considering the likelihood of the non-citizen engaging in further criminal or other serious conduct, decision-makers must have regard to information and evidence on the risk of the non­citizen re-offending and evidence of rehabilitation achieved by the time of the decision.

26    Paragraph 9 has the heading, “Other considerations”, and provides:

(1)    In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

(a)    international non-refoulement obligations;

(b)    extent of impediments if removed;

(c)    impact on victims;

(d)    links to the Australian community, including:

•    strength, nature and duration of ties to Australia;

•    impact on Australian business interests.

27    Paragraph 9.2 explains the other consideration of, “extent of impediments if removed”:

Extent of impediments if removed

(1)    Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a)    the non-citizen’s age and health;

(b)    whether there are substantial language or cultural barriers; and

(c)    any social, medical and/or economic support available to them in that country.

The Tribunal’s reasons for decision

28    The Tribunal commenced its reasons for decision by considering the character test, finding it was satisfied the appellant did not pass the character test set out in s 501(6)(a) of the Act. That finding has not been challenged.

29    The question for the Tribunal became whether, pursuant to s 501CA(4)(b)(ii) of the Act, it was satisfied there was “another reason” why the original decision should be revoked. The Tribunal’s reasons followed the framework of Direction 90.

30    The Tribunal first considered the primary consideration of, “protection of the Australian community from criminal or other serious conduct”. The Tribunal found the nature and seriousness of the appellant’s offending, and the nature of the harm should the appellant re-offend, to be very serious.

31    The Tribunal considered, under paragraph 8.1.2(2) of the Direction, the risk to the Australian community should the appellant commit further offences. The Tribunal observed that the appellant claimed he was addicted to methylamphetamines and was “high” at the time of the offence. A Pre-Sentence Report had indicated that the appellant presented, “with treatment needs with regard to methamphetamine use”. A Treatment Assessment Report had noted that the appellant may benefit from treatment focusing on substance issues generally and that he had been referred to the drug and alcohol unit at Casuarina Prison for consideration.

32    The Tribunal went on to find:

117.     While the Tribunal accepts that the [appellant] is remorseful for the consequences of the fire, it has serious concerns regarding his insight into his offending and his claimed efforts to address its causes, or managing the stressors that lead him to become addicted to drugs and offend.

118.    Of serious concern was a lack of any supporting evidence that the [appellant] had in fact undertaken, or was undertaking, any drug rehabilitation courses in prison or detention. In this regard, the Tribunal found the [appellant’s] evidence at the hearing to be vague and inconsistent…

…

121.     The Tribunal was concerned by the inconsistencies in evidence about the [appellant’s] rehabilitation efforts. In the Tribunal’s view of the evidence, the [appellant] has not undertaken any treatment program for drug use or self-regulation while in prison or immigration detention and has no plan to do so if he is released into the community. Further, while he may be directed to do so as a condition of parole, his prior failure to complete a course causes a concern about his capacity to do so where he does not acknowledge the need for such treatment.

122.     … Further, in the Tribunal’s view, evidence that the [appellant] has no plan to seek such assistance if released and regards himself as having recovered from his drug addiction, and learned his lesson, indicates a lack of insight into the nature of his drug use and issues associated with addiction. These factors may put at risk his capacity to maintain a drug free lifestyle in the community, particularly if he assumes responsibility again for the primary care of his children and the support of his wife, which he indicated is his intention. These were the stressors identified as leading to his prior drug use and offending. The evidence also indicates that the [appellant] has been unsuccessful in abstaining from drug use following previous inpatient drug treatment prior to the Criminal Damage Offence. It does not appear from the parole material that this prior unsuccessful attempt at rehabilitation was taken into account in assessing the [appellant’s] suitability for parole or in particular his likelihood of successfully completing a community based intervention program. This casts some doubt on his capacity to remain drug free in the community while relying on the same prosocial supports and subjecting himself to the same pressures, notwithstanding a period of abstinence in the controlled environments of prison and immigration detention.

123.    …The Tribunal was concerned that there was no satisfactory explanation for why the [appellant] would have claimed to have undertaken a program while in detention when it appears he has not done so, and had no intention of doing so in the community. This casts some doubt on the credibility of the [appellant’s] evidence generally, but particularly, with respect to his commitment to rehabilitation.

…

124.     …Accordingly, the Tribunal accepts the [appellant] had a period of remaining drug free in prison and detention. This is consistent with evidence that he tested negative for drugs several times in prison. However, while the [appellant] has remained drug free in these controlled environments, his commitment to not returning to illicit drug use remains untested in the community and as noted above, he has failed to maintain a drug free lifestyle following prior rehabilitation in the community.

33    The Tribunal concluded that although the appellant’s risk of reoffending was “low”, it was not “very low” or “non-existent” for reasons including, “his lack of demonstrated commitment to drug rehabilitation or counselling to assist with managing the stresses which…caused the drug use and offending”.

34    The Tribunal concluded that the first primary consideration weighed strongly against revocation of the cancellation of the appellant’s visa.

35    After considering the other primary considerations, the Tribunal turned to the “other considerations” identified in Direction 90, including the “extent of impediments if removed” under paragraph 9.2. Relevantly, the Tribunal found:

217.     There was no medical evidence before the Tribunal to suggest that the [appellant] has any particular health needs. When asked at the hearing if he had any current health conditions, the [appellant] said he did not. This was consistent with the information in his request for revocation form where he answered ‘no’ to the question of whether he had any diagnosed medial or psychological conditions. It is also consistent with the prison and detention records, and the parole material which indicated the [appellant] did not have any health conditions. However, in the [appellant’s] son’s statement there was a reference to the [appellant] suffering two strokes in prison and detention. When asked about this at the hearing the [appellant] said he had two heart attacks while in prison or detention. He described fainting and going to the hospital, and being told he had a heart attack. He confirmed he was not taking any medication or receiving treatment for this.

218.    As discussed with the [appellant] at the hearing, there was no mention in the records from prison or detention which were before the Tribunal of the [appellant] being treated for a heart attack or stroke. As expressed to the [appellant], were he to have suffered a significant health issue of that kind, the Tribunal would have expected to find a mention of it in records. There was mention in the material of medical treatment, however no mention of cardiac arrest or stroke. Prison intake records mention that on 24 February 2020, the [appellant] indicated ‘yes’ to a question of whether he had any serious medical issues requiring immediate attention. Records indicate he was taken to ‘Crisis Care Unit’, but no other details were provided. From the intake record it appears the [appellant] was taken to the Crisis Care Unit, because he was unresponsive and uncooperative, and health staff considered he required further assessment. On 25 February 2020, he was assessed by medial staff and rated as having ‘no urgent medical problems’. Parole records indicated that at interview, he reported to be ‘in good health and has no diagnosed physical or mental health conditions impacting on his overall wellbeing’. There were records of the [appellant] being given sleep medication and pain medication for a toothache.

219.     The Tribunal finds that the [appellant] has no physical or mental health issues which would present an impediment to his removal.

…

223.    Overall, taking into account all of the evidence, the Tribunal finds that the extent of impediments if removed, weighs only slightly in favour of revocation of the Cancellation Decision.

(Footnotes omitted.)

36    Ultimately, the Tribunal was not satisfied that there was another reason why the cancellation decision should be revoked after, “having regard to all of the primary considerations, and the other relevant other considerations in Direction No 90”.

The reasons of the primary judge

37    The primary judge observed that the sole issue was whether, in the context of s 50lCA of the Act, there was a constructive failure to exercise jurisdiction by the Tribunal in failing to consider the appellant’s “health” (by reason of drug addiction) when considering the extent of any impediments he may face if removed to Lebanon.

38    The primary judge found at [17] that:

Not only was no representation made by Mr Ibrahim that he had any matter affecting his health which would be an impediment to his establishing himself in Lebanon or that might hinder his maintenance of basic living standards — before the Tribunal, he positively disavowed ‘any current health conditions’…

39    The primary judge observed that the appellant had submitted that the Tribunal, “was content to hold the applicant’s health issues concerning unresolved drug addiction and mental health challenges against him”, when considering the primary consideration of protection of the Australian community, but, “seems to have entirely forgotten the earlier adverse findings”, when, “purporting to consider the applicant’s health for the purpose of paragraph 9.2(1)(a)”.

40    Her Honour concluded that the Tribunal had not failed to consider the appellant’s health under paragraph 9.2(1)(a) of Direction 90, finding:

27.     What emerges from the Tribunal’s reasons read ‘fairly and not in an unduly critical manner’ and ‘in light of the content of the statutory obligation pursuant to which it was prepared’ is that the Tribunal did not find that Mr Ibrahim’s drug use nor his inability to self-regulate his emotions were presently matters affecting his health. The Tribunal found that his drug use, and subsequent offending, was caused by his inability to manage the stresses in his life and, on that basis, expressed on several occasions its serious concerns that Mr Ibrahim had taken no steps to address how he might better manage his emotions and avoid falling back into drug use.

28.     Mr Ibrahim made no representation that he had any existing issue with, or concern about, his health that would cause him any impediment if removed from Australia. Nevertheless, the Tribunal considered the historical medical issues that had been raised before the Tribunal, being the suggested heart attacks and stroke whilst in prison or detention (albeit there were no records of any such medical events) and found that Mr Ibrahim had no existing physical or mental health issues. The Tribunal considered the country information relevant to Lebanon’s health outcomes and found that there was no information available to it to suggest that Mr Ibrahim would be impeded in establishing himself and maintaining basic living standards in Lebanon, in the context of what is generally available to other Lebanese citizens.

29.     In these circumstances, no inference can be drawn that the Tribunal failed to engage in an active intellectual process, as was required of it, when considering Mr Ibrahim’s health for the purposes of paragraph 9.2(1)(a) of Direction 90: Having engaged in the required active intellectual process, it formed the view that Mr Ibrahim’s health was not an impediment he might face to establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of Lebanon.

(Citations omitted.)

41    The primary judge then considered whether the claim that the appellant’s health was such that it may be an impediment to his establishing himself and maintaining basic living conditions in Lebanon clearly emerged from the materials.

42    The primary judge referred to the principles endorsed in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 (AYY17) relevant to determining whether a claim “clearly emerges” from the materials. Her Honour, “doubted whether the principles in AYY17 are readily applicable”, in the context of s 501CA(4), citing Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 285 (Jones) at [57]-[58], and commented that it was difficult to understand how, in the context, “an unarticulated representation is one that can readily be categorised as one that clearly emerges from the materials”.

43    Her Honour nevertheless considered whether the claim clearly emerged from the Tribunal’s findings or the materials, holding:

37.    However, on the assumption that they apply equally to decisions under 501 and 501CA, the Tribunal has not failed to consider a claim that clearly emerged from its findings or on the materials before the Tribunal. There were no established facts that Mr Ibrahim’s present state of health was other than as he himself told the Tribunal, being that he had no current health conditions. The materials before the Tribunal did not establish the facts that Mr Ibrahim had an ongoing drug addiction or psychological condition. At their highest, the materials established that Mr Ibrahim had stresses in his life, caused by the need to support his wife and children, which stresses had in the past caused him to be unable to self-regulate his emotions and to use drugs.

38.     Further, the materials before the Tribunal established that Lebanese health outcomes compare favourably with other countries in the region and with middle-income countries and that there was nothing to suggest that a person such as Mr Ibrahim, who was in generally good health, would be impeded in establishing himself and maintaining basic living standards. Moreover, there was nothing in the material before the Tribunal to suggest that a person who might be susceptible to relapsing into drug use on account of social stressors would be impeded in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of Lebanon.

39.    No independent claim clearly emerged from the Tribunal’s findings nor the material before it.

44    Although holding there was no jurisdictional error, the primary judge went on to hold that even if there were an error, it would not be material.

45    Accordingly, her Honour dismissed the application with costs.

The submissions

46    The appellant contends that the Tribunal fell into jurisdictional error by failing to have regard to the appellant’s health condition of drug addiction for the purposes of paragraph 9.2(1)(a) of Direction 90. He submits that a claim that he had that condition clearly emerged from the Tribunal’s findings or from the materials before the Tribunal.

47    The appellant submits that the primary judge’s finding that no claim clearly emerged from the Tribunal’s findings or the material before it was premised upon findings made by her Honour which stand in “stark contrast” to the findings of fact made by the Tribunal, whereby the Tribunal identified and relied on the appellant’s drug use and inferred he was drug dependent when assessing his risk of recidivism. The appellant argues that, while a claim of drug dependency was “unarticulated” by the appellant, the established facts from which such a claim “clearly emerges” are found in the Tribunal’s findings of fact, including its rejection of the appellant’s submissions regarding his drug rehabilitation.

48    The appellant submits that the primary judge also erred in finding that the Tribunal engaged in the necessary active intellectual process in forming the view that the appellant’s health was not an impediment he may face.

49    The Minister submits that there was no evidence that the appellant’s previous problems with drugs or his self-regulation were “health” issues. While the appellant had been addicted to methamphetamine in the past, on the evidence before the Tribunal, no such addiction existed at the time of its decision. The appellant’s identification of the “health” issue seems to be only that he was at risk of relapsing in the future, which the Tribunal found to be low.

50    The Minister argues that s 501CA of the Act decision-makers are under no obligation to consider claims which clearly emerge from the materials but are not clearly articulated, relying on the primary judge’s opinion to that effect.

51    The Minister submits, alternatively, that no claim concerning the appellant’s “health” condition clearly emerged on the materials.

52    The Minister also argues that there are no established facts indicating that the appellant’s health was other than as he had informed the Tribunal or suggesting he would likely fall back into drug use if removed to Lebanon.

53    The Minister submits that even if the appellant had the asserted health issue, paragraph 9.2 of Direction 90 was not engaged because there was no evidence that the health issue would have the consequence that the appellant would not be able to establish himself or maintain basic living standards in Lebanon.

54    The Minister further submits that the Tribunal’s conclusions on the appellant’s health and the impediments he would face if removed were not made without regard to the appellant’s drug issues. The Minister argues that the Tribunal’s reasons show that it closely considered the evidence concerning the appellant’s past drug use, risk of falling back into drug use and his self-regulation issues.

55    The Minister also argues that any error by the Tribunal was not material to the outcome of the Tribunal’s decision.

Consideration

56    The sole ground of appeal asserts that the primary judge erred in, “failing to find that there was a constructive failure to exercise jurisdiction by the [Tribunal]”. The appellant contends that the Tribunal’s error was its failure to take into account, under paragraph 9.2(1)(a) of Direction 90, the appellant’s health condition of drug addiction.

57    Paragraph 9.2(1)(a) requires, relevantly, that decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards, taking into account the non-citizen’s health.

58    The Tribunal’s reasons for its decision followed the structure of Direction 90. When applying paragraph 9.2(1)(a), the Tribunal found that the appellant had no physical or mental health issues which would present an impediment to his removal. In making that finding, the Tribunal did not expressly mention drug addiction.

59    Earlier in its reasons, when considering risk to the Australian community under paragraph 8.1.2 of Direction 90, the Tribunal had found that the appellant had been addicted to drugs when he committed the relevant offence. The Tribunal found that he had been drug-free while in custody and had not undertaken any treatment programmes as he regarded himself as having recovered from drug addiction. The Tribunal concluded that there was a risk of the appellant relapsing into drug addiction but, contrary to the appellant’s submission, made no finding that he had any existing drug addiction.

60    The appellant did not make any representation or claim that he had a drug addiction which might provide an impediment to establishing himself and maintaining basic living standards if he were removed to Lebanon. To the contrary, in his representations to the Minister, he stated:

I have now completely stopped taking drugs. I do not think I would be a risk to the community as I no longer take drugs. I have overcome this habit.

61    However, the appellant submits that a claim that he had a health condition of drug addiction clearly emerged from the Tribunal’s findings or from the material before it, and that the Tribunal was obliged, but failed, to take that condition into account.

62    The Minister’s submissions in response are multi-faceted, but it is convenient to begin with his submission that no obligation can arise under s 501CA(4) for a decision-maker to consider a claim which clearly arises on the materials but which is not clearly articulated. In Jones, Derrington J at [58]-[59] considered that the principle developed in protection visa cases that a decision-maker may be required to consider claims which, although not clearly articulated, clearly emerge from the materials, does not have any application under s 501CA(4). His Honour considered there to be a substantial difference between, on one hand, a decision-maker being required to consider a claim in the protection visa context which of itself could be dispositive of the decision, and, on the other hand, a factor or issue in the context of s 501CA(4) which is merely one matter which might be weighed in the exercise of a discretion.

63    In Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov), Gummow and Callinan JJ at [24]-[25] (Hayne J agreeing at [95]), held that that a decision-maker’s failure to respond to a, “substantial, clearly articulated argument relying on established facts”, can amount to a failure to afford procedural fairness or a constructive failure to exercise jurisdiction. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE), the Full Court (Black CJ, French and Selway JJ) held at [61] that:

…[T]he Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.

64    Dranichnikov and NABE were concerned with administrative review of decisions to refuse protection visas, not decisions under s 501(CA)(4) of the Act. However, in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 (Plaintiff M1), the plurality of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) held at [25] that a decision-maker acting under s 501CA(4) of the Act, “is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them”. In this passage, the plurality echoed the first part of the passage quoted above from NABE. The plurality went on to confirm at [27] that if the decision-maker ignores, overlooks or misunderstands relevant facts or materials, there may be jurisdictional error.

65    In CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124; (2022) 294 FCR 318, the Full Court (Katzmann, Charlesworth and Burley JJ) at [91] regarded the plurality in Plaintiff M1 as having endorsed the approach taken in Dranichnikov and NABE. The endorsement of that approach in Plaintiff M1 is unsurprising. The “representations” given in response to an invitation under s 501CA(3)(b) of the Act will commonly consist of submissions arguing the former visa holder’s case and various documents supporting revocation of the cancellation decision. It is not difficult to envisage a myriad of circumstances where the enclosed documents clearly raise a substantial claim that is not clearly made in the submissions: a letter might express a child’s distress at the prospect of their parent being removed from Australia; or a medical report might diagnose a serious medical condition. An obligation can arise under s 501CA(4) of the Act for the decision-maker to consider a claim which, although not clearly articulated, clearly arises on the materials. We reject the Minister’s submission that no such obligation is capable of arising.

66    It may be observed that in Plaintiff M1 at [25], the plurality excluded any requirement to consider claims that are not clearly articulated or which do not clearly arise on the materials. The plurality also held at [22] that:

The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

67    The plurality cited Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 383 ALR 194 at [36], where it was held:

It follows in this matter that, although the s 501CA(4) discretion is wide, it must be exercised by the Minister considering the claims and material put forward by the applicant. If no non-refoulement claim is made – as in this case – non-refoulement does not need to be considered in the abstract.

68    These passages demonstrate that a decision-maker under s 501CA(4) of the Act can only come under an obligation to consider a matter if it is clearly articulated, or, if not clearly articulated, clearly arises on the representations. The representations must be regarded as extending at least to any material provided in response to the invitation given under s 501CA(3)(b) of the Act to provide representations. Where a review is conducted by the Tribunal, the obligation may extend to considering additional submissions and other material placed before the Tribunal: see Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 335 at [49]-[51] (Colvin J); Brownlie v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 436 at [53] (Feutrill J).

69    In the present case, the appellant makes no submission that he made a clearly articulated claim that he had a health condition of drug addiction which would create impediments in establishing himself and maintaining basic living standards if he were removed to Lebanon. However, he submits that such a health issue clearly emerged from the Tribunal’s findings or from the material before the Tribunal.

70    The Minister submits that the Tribunal was not obliged to take in to account a matter that only arose from the Tribunal’s findings. The Minister relies upon Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137, where Logan J (Charlesworth and Thomas JJ agreeing) at [48] approved the following passage from the reasons of the primary judge (Derrington J):

In circumstances where the Minister has an unfettered discretion to take into account whatever matters he considers relevant to the exercise of the discretion, there is no foundation for the submission that he erred by failing to take into account a matter which was not advanced to him and which, if it arose, did so only by reason of the findings which he had made.

71    That must be so because a decision-maker under s 501CA(4) of the Act is not obliged to consider a matter that was not put forward or advanced by the former visa holder as part of their case for why the cancellation decision should be revoked. It may be noted that, in contrast, in a review of a decision to refuse a protection visa application, an “unarticulated claim” might “clearly emerge” before a decision-maker having regard to the decision-maker’s own findings: see AYY17 at [26].

72    A decision-maker is required, under s 499(2A) of the Act, to comply with the directions contained in Direction 90. Under paragraph 6, “a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision”. Whether such considerations are “relevant” in a particular case is a matter of opinion (subject to the reasonableness of the opinion) for the decision-maker: see Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 at [95].

73    Paragraph 9.2(1)(a) requires that decision-makers (including the Tribunal) under s 501CA of the Act, “must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards…taking into account…the non-citizen’s…health”.

74    However, an obligation for a decision-maker to consider a particular health condition can only arise under paragraph 9.2(1)(a) of Direction 90 where that condition is put forward by the former visa holder as part of their case for revocation of a cancellation decision. Such a claim must either have been clearly advanced as a reason or part of a reason for revocation or must clearly arise from the material before the decision-maker.

75    In a particular case, the fact that a decision-maker made a finding upon a particular matter might be relevant to the Court’s determination of whether the matter clearly arose on the material as a reason advanced for revocation of the cancellation decision. That is not so in the present case. The appellant did not raise any drug addiction as a health issue which might cause an impediment in establishing himself and maintaining basic living standards if removed to Lebanon. To the contrary, the appellant expressly claimed that he had completely stopped taking drugs and had overcome his drug habit. It cannot be accepted that any claim of drug addiction, or risk of relapse into drug addiction, as a reason for revocation of the cancellation decision clearly arose on the material. Accordingly, the Tribunal came under no obligation to consider any such health issue under paragraph 9.2(1)(a) of Direction 90.

76    In any event, we would not infer that the Tribunal, having found that there was a possibility of the appellant relapsing into drug addiction when considering risk to the community, overlooked that matter when considering paragraph 9.2(1)(a). The Tribunal expressly found that the appellant, “has no physical or mental health issues which would present an impediment to his removal”. There is no basis for supposing that the Tribunal’s finding did not encompass the possibility it had expressly accepted of relapse into drug addiction.

77    The appellant has not established that the judgment of the primary judge is affected by appealable error. The appeal must be dismissed with costs.

Associate:    

Dated:    1 November 2023