Federal Court of Australia

BYW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 206

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to amend notice of appeal in the form annexed to the affidavit of Ms Natalie Young dated 24 November 2023 with the need to file and serve an amended notice of appeal in those terms being dispensed with.

2.    The appeal be dismissed.

3.    The appellant pay the respondent’s costs of and incidental to the appeal to be fixed by a Registrar in a lump sum to be assessed if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The appellant was born in Burundi in 1983. He fled that country as a child as a result of events in Burundi. He spent the balance of his childhood and early adulthood in a refugee camp in neighbouring Tanzania. In 2005, he secured a visa issued under the Migration Act 1958 (Cth) (the Act) which enabled him lawfully to enter Australia. After entering Australia and as an adult, he engaged in offending conduct, more particularly described in reasons which came to be furnished by the respondent, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), under cover of a letter to the appellant dated 2 December 2021.

2    Of this offending conduct, a conviction in respect of the offence of unlawful sexual intercourse with a person under 17 years of age saw the appellant sentenced to imprisonment for two years and six months, with a non-parole period of 12 months, in a state District Court. A sequel to that was that, on 6 September 2018, the appellant’s class XB subclass 200 refugee visa issued under the Act was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act. Occasion for that cancellation was satisfaction that the appellant did not pass the character test by virtue of the operation of s 501(6)(a) of the Act read in conjunction with s 501(7)(c) of the Act.

3    As was his right, the appellant, on 21 September 2018, in response to an invitation extended to him on behalf of the Minister, made representations seeking that the cancellation of his visa be revoked. The initial representation of 21 September 2018 came to be supplemented by a detailed submission made on behalf of the appellant by Refugee Legal by a letter of 17 November 2020. That letter was authored by a solicitor and migration agent in that organisation, Ms Shelley Burchfield. It is both desirable and necessary to record that for two reasons. Desirable because of the quality of the representation made on the appellant’s behalf, and necessary because of the references in reasons which the Minister came to give to Ms Burchfield.

4    Those references are explicable only on the basis of a taking up by the Minister of that which is detailed in the Refugee Legal supplementation of the original application by the applicant for cancellation of the revocation of his visa. As might be gathered from what has already been stated, the representation for cancellation of revocation came to be considered by the Minister personally. In 2021, by a letter dated 2 December 2021, to which was appended the formal decision of the Minister of 30 November 2021, together with associated reasons, the Minister decided not to revoke, pursuant to s 501C(4) of the Act, the cancellation of the appellant’s visa.

5    The appellant sought the judicial review by this Court in its original jurisdiction of the Minister’s decision. On 22 May 2023, the Court dismissed that judicial review application: see BYW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 499. Pursuant to leave granted today to amend the existing notice of appeal, the appellant now appeals to this Court against that order of dismissal on the following grounds:

1.     The primary judge erred in failing to find that the Minister wrongly did not take into account the facts underpinning the Appellant’s claims about impediments on return as being in support of ‘another reason’ why the cancellation decision should be revoked, and instead accepting that the Minister was only obliged to consider ‘representations as a whole’ (J [57]- [58]).

2.    The primary judge erred in finding that the Minister was lawfully permitted to constrain his consideration of ‘impediments’ as precluding the facts the Appellant advanced, because such constraint would be an impermissible fetter of the Minister’s discretion under s 501CA(4) (J [59]).

3.    The primary judge erred in failing to find that the Minister did not consider the adequacy of mental health treatment in Burundi, in that her Honour:

a.    wrongly focussed on the irrelevant circumstance that it did ‘not appear to be in dispute that the applicant did not list any specific medical or health concerns in his representation’, and finding that the representations about mental health treatment were mere ‘uncorroborated assertions’ when that was not the Minister’s reasoning (J [60]);

b.    wrongly concluded that it was sufficient for the Minister to have given ‘consideration of the [Appellant’s] submissions as to his traumatic past’ as the ‘basis for the finding as to non-refoulement obligations’, because the representation was put as also relevant to the separate consideration of impediments upon return (J [60]);

c.    wrongly reasoned that the Minister’s reference to the Appellant facing ‘significant hardship should he be removed to Burundi’ meant that the failure to consider the adequacy of mental health treatment in Burundi was immaterial (J [61]).

4.    The primary judge erred in failing to find that the Minister engaged in illogical or Irrational reasoning by weighing against the Appellant the Minister’s own acceptance that the Appellant was at ‘low’ risk of reoffending, when her Honour found that the ‘Minister clearly found that, should the [Appellant] re-offend in a similar fashion, the effect on the Australian community would be unacceptable’, because that is not a proper reading of the Minister’s reasons (J [67]).

6    Before turning to the merits, if any, of the grounds of appeal, it is desirable to rehearse some statements of principle as applicable to the consideration of ministerial and other administrative reasons. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), at 271 – 272, in the joint judgment of Brennan CJ and Toohey, McHugh and Gummow JJ, the High Court addressed under the general rubric of the proper role of a reviewing court the correct approach in the exercise of a judicial review power to such reasons. The court cited with approval observations made in the Full Court of this Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280 (Pozzolanic), in which it was stated:

The reasons for the decision under review are not to be construed minutely and finally with an eye keenly attuned to the perception of error.

Having so done, it was stated, at 272, in the joint judgment:

These propositions are well-settled.

So, with respect, they were at the time, and so they remain. It is necessary, indeed absolutely necessary, that the familiarity of an encounter with that proposition in Pozzolanic translate into a principled restraint by the judicial branch in relation to the scrutiny on judicial review of an administrator’s reasons. That point was, in essence, made also in Wu Shan Liang, at 272. It was not coincidental that, in making that point in the joint judgment, the observation made by Sir Gerard Brennan in Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35 – 36, was expressly cited with respect to the limited role of a reviewing court on judicial review.

7    The appellant was entitled to insist upon a decision made according to law, materially according to s 501CA(4) of the Act, with respect to his representation that the cancellation of his visa be revoked. What the court could not do under the guise of judicial review was to stray into the field of merits review, and that remains the case, notwithstanding the traumatic background to the appellant’s departure from Burundi or his experience thereafter in a refugee camp in Tanzania. Were there any doubt about the limited role of a reviewing court in respect of a decision made either by the Minister personally or a delegate, or on external merits review of a decision of the latter, by the Administrative Appeals Tribunal, that doubt was put to rest by the joint judgment of Kiefel CJ and Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 (M1/2021).

8    There are important statements concerning the meaning, effect and application of s 501CA(4) of the Act, in the joint judgment in M1/2021, at [21] through to and including [27]. In particular, it was stated, at [26]:

Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formula have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any decision-maker’s decision are scrutinised”.

I find it difficult to read these statements as anything other than sounding a cautionary note in respect of any reference thereafter to the authorities, numerous as they are, at intermediate appellate level referred to in the joint judgment at fn 51.

9    Within the paragraphs of the joint judgment in M1/2021 to which I have referred, the appellant, not unnaturally, sought comfort from [27], in which it was stated:

[27]    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

[footnote references omitted]

10    What is stated in the joint judgment in M1/2021, at [27] takes up, notably, sentiments earlier voiced in the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. A failure on the part of the Minister or other decision-maker exercising the power conferred by s 501CA(4) to appreciate and address the particular aspects or integers of a representation made with respect to revocation of cancellation could resonate in either or each of the jurisdictional errors of a failure to afford an applicant for revocation procedural fairness, or a failure to perform the statutory function consigned under s 501CA(4) by failing to address the representation in a particular case.

11    Other observations concerning s 501CA(4) were made in another joint judgment of the High Court, namely, the judgment of Keane, Gordon, Edelman, Steward and Gleeson JJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 (Viane). In that joint judgment, under the heading, ‘Fact-finding for the Purposes of 501CA’, at [12] – [22], the court at [13] observed:

The scheme necessarily requires the Minister to consider and understand the representations received. What is “another reason” is a matter for the Minister. Under this scheme, Parliament has not in any way mandated or prescribed the reasons which might justify revocation or not of a cancellation decision in a given case. It follows that there may be few mandatory relevant matters that the Minister must consider in applying section 501CA(4)(b)(ii). The Minister is not obliged to take account of any non-refoulement obligations as expressed in the Act or otherwise when determining whether there is another reason to revoke a cancellation, where the materials do not include or the circumstances do not suggest a non-refoulement claim”. The power must otherwise be exercised reasonably and in good faith.

Also in the Court’s joint reasons in Viane, a point is made, at [14], that:

It is no part of the statutory power conferred by section 501CA to make actual findings of fact as in an adjudicative way.

The Court goes on to highlight that:

The Minister may, nonetheless, choose to make findings, and if so, must do so either by reference to material supported thereof before the Minister, or material which might aptly be described as either within the Minister’s general knowledge or that of the Department which the Minister administers.

12    The Minister is given power by s 499 of the Act to issue directions. It has been said by this Court, consistent with Viane and M1/2021, that the directions issued are “not an exhaustive universe” with respect to what may be considered as “another reason” for the purposes of s 501(4): see Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 (Calvey), at [45]; Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 99 (Kumar), at [42]. Also in Kumar, and extrapolating from what had been stated in Calvey, it was observed:

The Minister cannot, by a direction made under section 499, fetter the exercise of the power conferred by section 501(1) of the Act.

13    In a like way, one might state the Minister cannot, by direction under s 499, constrain that which may be “another reason” for the purposes of s 501CA(4). Also in Kumar at [46], and having referred, amongst other cases, to Wu Shan Liang, the Court observed in relation to Minister’s reasons or those of other administrative decision-makers that:

The business of public administration, either at primary decision-making level or upon merits review, would become quite impossible were the position otherwise.

14    In other words, public administration would be impossible were the position other than that an administrator’s reasons ought not to be read overzealously.

15    It is against the background of these statements of principle that I now turn to the particular grounds of review.

16    Ground 1 alleges a particular error by the primary judge in relation to an alleged integer of the representation as it came to be developed by or on behalf of the appellant. Even assuming, with respect, that the ground accurately encapsulates the passage in the reasons of the learned primary judge referred to, it does not follow that the appeal must be allowed. If, on a reading of the reasons, having regard to the representation as it came to be developed, and the Minister’s reasons, the subject was addressed by the Minister, then it matters not that the approach of the primary judge might exhibit the alleged error in reasoning. It would just mean that the ground should be rejected for reasons other than as given by the primary judge.

17    A vice in relation to ground 1 may well be that it compartmentalises what on a fair reading of the Minister’s reasons is an interconnected consideration of the totality of the substance of the integers of the representation made. It is necessary to approach the reading of the Minister’s reasons, as so often is the case in relation to judicial review or an exercise of appellate jurisdiction in respect of a judicial review, by reminding one’s self that the representation made in a particular case will necessarily colour and shape the way in which the Minister or other decision-maker comes to formulate reasons. Indeed, that should be the case in terms of meeting the expectation with respect to the exercise of the power conferred by s 501CA(4), as stated in the joint judgment in M1/2021.

18    Turning to the letter of 17 November 2020 to the Minister, it becomes obvious that there has been deliberately a conflation of subjects which are said to be relevant to an international non-refoulement obligation, as well as impediments to return. Page 3 of that letter contains a subject heading indicative of that conflation. Were there any doubt as to that, that is put to rest by the opening sentence under that heading:

The below submissions are intended to be equally applicable to the assessment of impediments to the appellant’s forced return to Burundi.

[emphasis added]

Later on p 5 of the letter, it is stated:

Please note that each of the types of harm in this section of the submissions are intended to be equally applicable for assessment of “extent of impediments if removed”, as stated in 14(1)(e) of the Direction, in addition to the specific impediments identified.

19    Again, it is also only natural, there being a promulgated direction under s 499, Direction 90 at the time, that representations put to a Minister or other decision-maker would also be coloured and shaped by subjects highlighted in a direction. Such directions, although not binding on the Minister, nonetheless provide, as the Minister recognised, particular subjects which persons making representations might expect would, if applicable, be addressed in making a decision in a particular case.

20    Such directions have as their aim consistency in public administration. As M1/2021 and Viane emphasise, they cannot constrain what is ultimately an open-ended subject of what constitutes “another reason”, but they do offer guidance as to subjects which a Minister will, in the ordinary course, address if applicable.

21    Further, there is an area of overlap, not a complete coincidence, between subjects which might arise in consideration of an international non-refoulement obligation and subjects which might arise in considering impediments if returned. That is not to say that they are to be equated, only that there may well be in given cases an area of overlap. So there was no disservice done, in my view, to the appellant in the conflated way in which the submission was made on his behalf.

22    The Minister in his reasons addressed the subject of international non-refoulement obligations at [63] – [79].

23    It is necessary in dealing with this ground to set out that portion of the Minister’s reasons in full, without, I should add, reproducing the name of the appellant, instead substituting “the appellant” where the appellant’s name appears:

International non-refoulement obligations

63.    The Direction provides that, in making a decision under s501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. While I am not legally bound by the Direction, I was mindful that if non-refoulement obligations were engaged in this case, that would be a factor in favour of revocation of the cancellation of [THE APPELLANT’S] visa.

64.    In the context of his request for revocation of the mandatory cancellation decision made under s501(3A), [THE APPELLANT] submits that returning to Burundi would be very dangerous and hazardous for his personal safety due to the country's volatile political and military situation. He states that he fled Burundi when he was six years old because it was unsafe as a consequence of civil war and ever present violence. He states ‘when I fled there was so much killing and I was scared that the people who I believe attacked my family would kill me too’. His exposure to the ‘ongoing chaos and killing’ in Burundi as a young child has made him scared to return. [THE APPELLANT] further states that there is no one to support him if he is returned to Burundi, including his family whose location and status is unknown to him. He states that returning to Burundi would place his life at risk Attachments G and N.

65.    Ms Burchfield submits that [THE APPELLANT] is at risk of persecution due to his actual and perceived opinion in opposition to the Imbonerakure, the Ruling Party Youth League in Burundi, who are documented to be committing human rights abuses against political opponents. Returnee refugees are being imputed with political opposition by this group, and Ms Burchfield states that [THE APPELLANT] has indicated he will not support them Attachment M.

66.    In addition, Ms Burchfield submits that [THE APPELLANT] is at risk due to his membership of particular social groups, namely: male refugees returnees to Burundi; male returnees suspected of support of opposition groups; returnees who have not lived in Burundi since childhood, and who have no family support; returnees from the West with perceived wealth; and Burundians suffering post-traumatic stress Attachment M.

67.    [THE APPELLANT] states that Ms Burchfield has explained to him the reports out of Burundi regarding the ongoing violence by the Imbonakure, and reports that they target people who will not support them as well as returning refugees. He states that he knows little about the politics of Burundi but would not support any group who was killing the people of Burundi. He also believes he would be at risk as a returning refugee Attachment N.

68.    Ms Burchfield has cited Country Information which indicates that the Imbonerakure has carried out widespread human rights abuses including extrajudicial executions, disappearances and arbitrary arrests. Citizens are forced to make financial contributions, and those who do not pay are subjected to threats and ill-treatment, and/or deprived of access to public services. Country Information available also indicates that Burundian nationals who had returned after seeking refuge abroad were among the main targets of human rights abuses, accused of belonging to or supporting opposition groups. They are also at risk of criminal targeting as a returnee from the West Attachment M.

69.    I accept that the nature of the claims outlined above indicates a potential for Australia’s international non-refoulement obligations to be engaged in relation to [THE APPELLANT].

70.    A conclusive finding as to whether non-refoulement obligations are in fact owed in respect of [THE APPELLANT] is not possible without a full and comprehensive assessment through a process similar to what is required to assess a Protection visa application. Nevertheless, for the purposes of the present decision, I accept there is at least a possibility that [THE APPELLANT] could face a real risk of suffering the abovementioned kinds of harm in Burundi, which might include human rights abuses such as arbitrary arrest and execution, threats and ill-treatment, and denial of access to services.

71.    Consequently, for the purposes of this decision, I accept that there is at least a possibility that non-refoulement obligations are enlivened in relation to [THE APPELLANT], with the country of reference being Burundi. This means that his removal to Burundi may potentially breach these obligations. I also accept that there is currently no known prospect of removing [THE APPELLANT] to any other country.

72.    I am aware that the statutory consequence of a decision to not revoke the cancellation of [THE APPELLANT’S] visa is that, as an unlawful non-citizen, [THE APPELLANT] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable.

73.    However, the requirement to remove [THE APPELLANT] under sl98 would not apply if he is granted another visa. I acknowledge that if l decide not to revoke the cancellation of [THE APPELLANT’S] visa under s501CA, he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12A of the Migration Regulations 1994). Given the nature of the claims made by [THE APPELLANT], I consider it likely that he will apply for a Protection visa.

74.    A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Provided that [THE APPELLANT’S] visa application is valid, the duty to remove him under s198 of the Act will not apply while his application is being determined. In that context, any claim by [THE APPELLANT] that he would face harm on return to Burundi could be conclusively assessed in the context of his Protection visa application to the extent that those claims are relevant to the criteria for visa grant.

75.    In this regard, I have noted that s36A of the Act ensures that the Minister assesses and records findings against the protection obligations criteria when considering a valid Protection visa application, even where the visa can be refused on other grounds.

76.    I have considered Ms Burchfield's submission dated 4 July 2021 Attachment R. She states that the suggestion that [THE APPELLANT] might be granted a Protection visa should be rejected. Ms Burchfield referred to the Full Court of the Federal Court findings in which the Court expressed the view that there was no realistic possibility that the Minister would use their discretion to grant another visa to a person who failed the character test, after failing to use their discretion to revoke a visa cancellation on character grounds. Ms Burchfield also provided information released under the Freedom of Information Act 1982 which showed that the Minister had never subsequently issued a Protection visa to a person whose section 501(3A) visa cancellation was not revoked.

77.    I do not consider the prospects of myself, another Minister or delegate of the Minister granting a Protection visa to be unrealistic in relation to [THE APPELLANT] simply because his visa has been cancelled on character grounds and I have decided not to revoke that cancellation. That decision will be based on the circumstances existing at the time of decision. Regardless, l am cognisant of the possibility that [THE APPELLANT] may be refused a Protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria. However, even if he is not granted a Protection visa, any protection finding made for [THE APPELLANT] in the course of considering his Protection visa application in respect of Burundi would prevent him being removed to Burundi, except in the limited circumstances set out in s197C(3)(c) (such as where the Minister has decided that [THE APPELLANT] is no longer a person in respect of whom any protection finding would be made and that decision is no longer subject to merits review).

78.    Further, where a criterion for a Protection visa grant implements a non-refoulement obligation, consideration of whether [THE APPELLANT] meets that criterion is in effect consideration of whether that non-refoulement obligation is in fact engaged in his case. However, I am mindful that Australia’s international non-refoulement obligations may not be fully encompassed by the Protection visa criteria in s36(2) of the Act.

79.    I am also mindful that consideration of whether [THE APPELLANT] satisfies a Protection visa criterion under s36(2), in the context of determining his Protection visa application, cannot be regarded as a substitute for consideration of non-refoulement claims in the present context. I accept that case law indicates that the issue to be determined under s501CA(4) (that is, whether there is ‘another reason’ why a cancellation decision should be revoked) is less categorical than the issue of whether a person satisfies a relevant criterion under s36(2), and that the material or representations advanced in support of a claim in the context of s501CA are not required to meet predetermined benchmarks.

[emphasis in original]

24    Although there is a separate subject heading in the Minister’s reasons, ‘Extent of Impediments if Removed to Burundi’, a fair reading of what follows under that heading does not, in my view, bear out the point sought to be made by ground 1. Under the heading ‘Extent of Impediments if Removed to Burundi’, the following appears:

Extent of impediments if removed to Burundi

80.    I have considered the extent of any impediments that [THE APPELLANT], if removed from Australia to his home country, will face in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Burundi), taking into account the following.

Age and health

81.    [THE APPELLANT] is aged 37 and has not listed any medical or health concerns.

Language and cultural barriers

82.    [THE APPELLANT] lived in Burundi until the age of six, and then in a refugee camp in Tanzania before immigrating to Australia at the age of 21 years. I note [THE APPELLANT] has stated that as a child he learnt to speak Kirundi as his native language and also learned to speak Swahili whilst he was living in refugee camps in Tanzania Attachment G.

83.    I find that the difficulties [THE APPELLANT] is likely to experience will be somewhat reduced given that he speaks Kirundi, although I accept that he may have lost some of these language skills since leaving Burundi. I have also taken into consideration that he has not resided in Burundi since he was six years of age and I accept that this would present a considerable challenge should he return.

Social, medical and/or economic support available in Burundi

84.    As noted above, [THE APPELLANT] departed Burundi as a young child, and lived in a refugee camp in Tanzania until the age of 21 years. He states he was separated from his family in Burundi, but was reunited with his older brother in the camp in Tanzania. The location and status of the rest of his family is unknown to him, and he does not know anyone in Burundi who could offer support. [THE APPELLANT] states that he will face many hardships if he is required to return to Burundi, including unemployment, lack of housing, starvation and isolation in the absence of a family or support network Attachments G and N.

85.    I note the submissions of Ms Burchfield regarding Burundi’s poverty, food shortages and poor health system, exacerbated by the political instability which limits access to international aid. Country Information provided by Ms Burchfield indicates that returnees are affected by ‘material vulnerability’, with limited opportunities for employment and inadequate housing. She states ‘he cannot safely return to Burundi where he has no one and no resources’ Attachment M.

86.    I find that [THE APPELLANT] will have the same access to health services, treatment and welfare services as available to other citizens of Burundi, although I accept that the standard and ease of access may not be of the same high standard and as widely available as those services are to him in Australia. [THE APPELLANT] may also suffer disadvantage if his medical records and history are not available to him or his health service provider in his home country.

87.    I note that [THE APPELLANT] has held employment in Australia as a cropper in the market gardens, which he states has provided him with opportunities to learn skills in the food production industry. I acknowledge that [THE APPELLANT] may face some financial hardship relative to his experience in Australia, however Burundi’s economy is largely dependent on the agricultural industry, and I consider that his employment background provides him with skills which will enhance his employment opportunities in Burundi.

88.    I find that [THE APPELLANT] will face practical and emotional hardship upon a return to Burundi, due to separation from his children, brother and other close family; lack of social support; as well as the fear of harm he has indicated he may suffer from upon returning. I find that the lack of initial financial or housing support from family or others, and the challenges to obtaining these by other means, may cause him to suffer disadvantage.

89.    On balance, when considering all of the above factors, I find that the return to Burundi will result in significant hardship for [THE APPELLANT].

[emphasis in original]

25    In his original application for revocation, the appellant had ticked “no” in response to the question:

Do you have any diagnosed medical or psychological conditions?

26    In his typewritten statement headed, ‘Reasons for Revocation’ which accompanied that original application, he made no reference at all to any particular psychological condition. However, in the letter of 17 November 2020, under the heading, ‘Trauma Background’, it was stated:

Trauma background

[The appellant’s] statement filed with this brief submission sets out an extremely traumatic childhood. He was forced to flee from Burundi as a young child and has been left with lasting and traumatic memories of what horror was inflicted on his family who he has never seen again other than for his older brother. In Tanzania he was first taken in by a person who physically abused him and treated him as child slave. He was then sent to a refugee camp in Tanzania where he was reunited with a brother but endured significant hardship including regular hunger and fear of being sent back into Burundi by the Tanzanian authorities.

[The appellant] while grateful to be resettled in Australia says he has not been supported to properly deal with and heal his trauma as a young person through professional counselling. He accepts that he needs to do this. He has been provided with the details of the Torture and Trauma service for Refugees in South Australia (STTARS) and intends to make contact with the service for much needed support. From speaking with [the appellant] it is evident that his childhood trauma is still very present and troubling to him. Getting professional support for this and other related psychological issues will ensure that [the appellant] does not return to the same situation he was in before he was incarcerated.

27    When one reads the reasons as a whole, one sees from [68] a very particular engagement. Indeed, as [69] bears out, acceptance of particular features of conditions in Burundi.

28    In turn, when one reads [86] in its reference to health services and treatment, as well as in [88], close family, lack of social support, as well as fear of harm, in the way counselled by Wu Shan Liang, one sees, in my view, an understanding of general impediments which may attend the appellant’s return to Burundi, and an assimilation of those by the Minister. None of them oblige the Minister to be satisfied that there was another reason to revoke cancellation. All that the appellant could expect was that these features of the representation would be assimilated and addressed. Put shortly, in my view, they were by the Minister.

29    I therefore see no substance in ground 1.

30    As to ground 2, an immediate difficulty with ground 2 is that the Minister does not state in terms anywhere in his reasons that a consideration of impediments on return was in some way a preclusion in the way alleged in ground 2. The Minister has just approached the question of whether he should or should not be satisfied by reference to what is advanced in the representation as it came to be developed. The passages which I have already cited from the Minister’s reasons demonstrate, in my view, that he has been receptive to such considerations as constituting an “other reason”. He has deliberately made reference to them. It is just that, when all is said and done, those particular considerations did not ultimately yield satisfaction that there was an “other reason” to revoke cancellation.

31    One sees in particular in [104] of the Minister’s reasons the following:

104    In addition, I have found that a number of other factors also weigh in favour of a decision to revoke. These include strength, nature and ties to Australia, and the adverse consequences of a non-revocation decision on [THE APPELLANT’S] brother and sister-in-law, and his wife; and the impediments [THE APPELLANT] may face on his return to Burundi. I also accept that there is at least a possibility that international non-refoulement obligations are enlivened in relation to [THE APPELLANT].

I find it impossible, reading the Minister’s reasons fairly, to read that paragraph without carrying with it all that has followed beforehand in terms of the subjects the Minister addressed under non-refoulement, and then took up again by reference under impediments, as well as other subjects addressed under the heading of ‘Other Impediments’.

32    I turn to ground 3.

33    Once again, even assuming that the reasons of the primary judge exhibit the features that are set out in that ground, if truly it can be said that having regard to the representation as it came to be developed by the letter of 17 November 2020, the subject was understood and addressed by the Minister, then there would be no basis for allowing the appeal on the basis of a failure to address a subject of mental health and treatment availability in Burundi.

34    For reasons which I have already given, it may be accepted that it was a feature in the representation as it came to be developed of the appellant’s general experience in childhood both in Burundi and in the refugee camp in Tanzania.

35    The subject of the appellant’s experience was addressed at considerable length by the Minister under the heading ‘Factors Contributing to Past Conduct’. That yielded a particular conclusion as to risk to the community, at [42]. It is necessary once again to reproduce in full what is stated under the headings ‘Factors Contributing to Past Conduct’ and ‘Conclusion on Risk to Community’ to do justice to the reasons of the Minister, having regard to ground 3, as well as, as will be seen, to ground 4. It is there stated:

Factors contributing to past conduct

26.    I have taken into account that the sentencing Judge, when determining [THE APPELLANT’S] sentence, considered that he had a very difficult childhood including being exposed at a very young age to the civil war in Burundi, being required to participate in the use of firearms, witnessing people being killed and injured, escaping and travelling to Tanzania and spending about 14 years in a refugee camp without knowing the whereabouts of his parents. I note the sentencing Judge found it was challenging to ‘quantify or explain the impact of such a traumatic childhood’ Attachment B.

27.    [THE APPELLANT] also attested to the childhood trauma he experienced as a result of being exposed to civil war and witnessing people being injured and killed from a very young age. He states he has a vague recollection of people coming to his home with machetes and hearing screams which he thought were his parents being killed. He joined others who were running away and finished up in Tanzania, where he was taken in by a family who made him work in their home and physically abused him before sending him to a refugee camp where he was reunited with his older brother. He has not seen his parents or younger brother since he fled Burundi, and does not know their status or whereabouts Attachments H and N.

28.    [THE APPELLANT] states that, in regards to his offending, miscommunication with a friend led to him renting his house out for a party that, unbeknownst to him, would include underage attendees. He states that he was taken advantage of by his friend and has Seamed from the experience. He also submits that he now understands the law clearly and that there is no likelihood he will reoffend Attachment G.

29.    In relation to his conviction for fail to stop, assist, present to police after accident, [THE APPELLANT] states the incident occurred as a result of road rage and the other driver exited his vehicle and walked towards him with a hammer and he fled the scene due to fear. He states that his traffic offences were due to his misunderstanding of Australian laws, but that he now understands he may have been putting lives at risk due to his conduct Attachment H.

30.    I accept that [THE APPELLANT’S] childhood was traumatic and I acknowledge the significant hardship he faced as a child of such a young age. I also acknowledge that [THE APPELLANT’S] background may have led to some challenges in understanding many of the legal and societal expectations of the Australian community. However, I note that [THE APPELLANT] had, at the time of his offending, resided in Australia for more than a decade, and had been exposed to these expectations for a significant period through his schooling, employment and community engagements. I do not accept that [THE APPELLANT] offending can be largely attributed to the experiences of his childhood.

Remorse and rehabilitation

31.     I note [THE APPELLANT] has submitted evidence that he has participated in education in prison including literacy and numeracy courses. He also states that he has completed occupational health, safety and welfare courses, as well as attaining an ‘Eat to Live’ certificate. He states that ‘education has enabled him to grow and reflect on his life and to learn new skills’ and that he is keen to participate in additional rehabilitation programs Attachments G and L1 to L13. A letter from Ms Anne Mulraney dated 21 September 2018 confirms [THE APPELLANT’S] participation in educational courses whilst at Mount Gambier Prison from 9 August 2018. She states that he has good attendance, a positive attitude and effectively engaged in classroom activities and with fellow prisoners Attachment I1.

32.    [THE APPELLANT] did not undertake a sex offenders program while in prison. He states that he was willing to do the program, but his English skills were assessed as insufficient to complete the course at that time. [THE APPELLANT] states that he is willing to do a program in the community should his visa be returned. His representative, Ms Shelley Burchfield, has made enquiries on his behalf and an appropriate program is available at Owenia House in Adelaide Attachments M. N and P.

33.    Ms Burchfield has also submitted that [THE APPELLANT] accepts that he needs to obtain support to deal with his childhood trauma. He intends to make contact with the Survivors of Torture and Trauma Assistance and Rehabilitation Service (STTARS) to seek that support Attachments M and P.

34.    I have considered a letter to the South Australian Parole Board dated 2 May 2019, in which [THE APPELLANT] states that his time in prison has afforded him an opportunity to ‘reflect and understand how to react to different situations’ and that he understands the need to think before reacting in order to make better choices in the future Attachment J.

35.    I note that the sentencing Judge commented that [THE APPELLANT] offending was an isolated occasion of penile-vaginal sexual intercourse. However, she also noted that [THE APPELLANT] had shown no remorse for his offending and continued to deny sexual intercourse took place with the victim, seeking in court to provide another scenario by which DNA evidence was found on the clothing of the victim. In those circumstances, the Judge stated ‘it is difficult to be positive about your prospects of rehabilitation’ Attachment B.

36.    I note [THE APPELLANT] now submits that he takes full responsibility for his conduct and understands that it was unacceptable behaviour and ‘has no intention of breaking the law again’. He states that he has had time to reflect on his actions in prison and submits that he is unsettled by the thought of his offending behaviour and is ‘truly sorry for the victim’. He states he has four children and the thought of ‘these actions happening to any of them terrifies me’. Furthermore, he states the ‘sexual offence is a taboo for me and something that I will not forget for the rest of my life’ Attachments H and J.

37.    I have considered the protective factors available to [THE APPELLANT] if released into the community. I note that [THE APPELLANT] states he wants to ‘mend’ his relationship with his ex-partner and children, which is a motivating factor for him to not reoffend. I note that he plans to re-engage with his church, the Elizabeth North African Pentecostal Church, which he describes as a strong, caring and supportive community Attachment H. I further note that [THE APPELLANT] has offers of support in the community from pro-social family, community groups and his church Attachments I2, I3,I4, O, O1 and O2.

38.    I have also considered that [THE APPELLANT] intends to resume work with his former employer, D’Vine Market Gardeners, who have advised him that his job will be available upon his release Attachment J.

39.    I consider that [THE APPELLANT’S] expressed remorse for his victim, his insight into developing awareness of Australian laws and his participation in educational courses whilst in prison to develop literacy, numeracy and employment prospects ail reduce the likelihood of his reoffending. I also find that [THE APPELLANT’S] first custodial sentence has had a salutary effect on him. I accept that [THE APPELLANT] intends to obtain support from STARRS and undertake a sex offenders’ course, if he is returned to the community.

40.    Furthermore, I have taken into consideration his pro-social plans for the future including rebuilding his relationship with his family, the offer to return to his former place of employment and intention to participate in community activities through his church, the local Burundian community and sporting events. I find that this reduces the likelihood of reoffending.

41.    I have also considered [THE APPELLANT’S] apparent limited remorse in the period following his offending as demonstrated by his attempt to deny his actions in Court, his apparent lack of insight for his offending as evidenced by his shifting blame to his friend for inviting underage guests to the party at his home, and the family and community support at the time of offending which did not deter him from offending or act as a protective factor. I remain concerned that he has not participated in any sexual offenders programs or counselling, although I acknowledge that these programs were not made available to him. 1 am mindful that his behaviour and rehabilitation efforts have not been tested in the community.

Conclusion on risk to community

42.    I have found that the nature of [THE APPELLANT’S] conduct is very serious. I have further found that this offending conduct has the potential to cause physical and/or psychological injury to members of the Australian community. I remain concerned that [THE APPELLANT] lacks insight into his offending conduct, given the limited rehabilitation undertaken, however on balance I consider there to be a low likelihood that [THE APPELLANT] will reoffend. Nevertheless, I considered that, should [THE APPELLANT] engage in similar conduct again it may result in psychological and/or physical harm to members of the community. I have given this weight in favour of non-revocation.

[emphasis in original]

36    These passages in the Minister’s reasons are not to be read in isolation. So much is made plain by [84] of the Minister’s reasons in his statement:

84    As noted above, [THE APPELLANT] departed Burundi as a young child, and lived in a refugee camp in Tanzania until the age of 21 years. He states he was separated from his family in Burundi, but was reunited with his older brother in the camp in Tanzania. The location and status of the rest of his family is unknown to him, and he does not know anyone in Burundi who could offer support. [THE APPELLANT] states that he will face many hardships if he is required to return to Burundi, including unemployment, lack of housing, starvation and isolation in the absence of a family or support network Attachments G and N.

37    In my view, approaching the Minister’s reasons as counselled by Wu Shan Liang, it is pellucid that the Minister is well-seized of a quite awful early experience of the appellant. Further, it would be overzealous to read that word “treatment” which appears in [86] of the reasons other than as reactive to the submission made under the heading ‘Trauma Background’. Of course, it was not necessary for the appellant to put forward a supporting medical diagnosis in respect of his representation concerning traumatic background. An “other reason” could permissibly be found just in the experience alone of the appellant in his childhood and formative years. But the Minister did not in terms in his reasons constrain himself to exclude consideration of that subject by an absence of any supporting medical evidence. To the contrary, he addressed the subject. I therefore see no substance insofar as ground 3 seeks to raise as an error an integer of a claim not considered. The Minister on the face of the reasons was well aware of the appellant’s background and that there is poor public health facility in Burundi.

38    That then leaves ground 4.

39    Ground 4 takes as its focus [105] in the Minister’s reasons. It is there stated:

105.    However, I have also given significant weight to the very serious nature of the crime committed, the likelihood of [THE APPELLANT’S] reoffending, and the harm to the community [THE APPELLANT’S] reoffending would cause.

40    The illogicality or irrationality is said to be found in an incongruity between the likelihood assessed as low of the appellant’s reoffending and the harm to the community that would be caused by reoffending.

41    It may be accepted that, read in isolation, the language of [105] of the Minister’s reasons is infelicitous. Once again, however, that paragraph is not to be read in isolation. In particular, when one reads [105] in conjunction with [42] of the Minister’s reasons, it becomes tolerably clear, in my view, that all that the Minister is doing is making a finding that there is a low risk of reoffending, but at the same time concluding that if that risk manifests itself, the consequence will be particularly harmful, in terms of “psychological and/or physical harm to members of the community”.

42    Read in context, and this really is the way in which to approach [105], there is no illogicality. It is nothing more than a recognition of what may be a sequel if a low risk were nonetheless to manifest itself in later offending conduct of a like kind to that which saw the appellant become the subject of satisfaction that he had failed to pass the character test.

43    The end result therefore is, on analysis of the grounds as amended, that none have substance. The absence of substance to which I have referred reflects, it should be recorded, the particular responsive submissions to those grounds made on behalf of the Minister.

44    For these reasons then, I would dismiss the appeal.

Associate:    

Dated:    15 February 2024

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

SNADEN J:

45    Respectfully and for the reasons that his Honour has given, I agree with Justice Logan that all four of the appellant’s grounds of appeal should be rejected, that the appeal should be dismissed and that the appellant should pay the respondent’s costs.

Associate:    

Dated:    15 February 2024

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

HESPE J:

46    I agree with the reasons and orders proposed by Justice Logan.

Associate:    

Dated:    15 February 2024