Federal Court of Australia

Nkani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 70

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs to be agreed or, failing agreement, to be taxed.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a decision of the Federal Court of Australia in Nkani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1410 (J).

2    Before the primary judge, the appellant sought an extension of time to bring an application for judicial review of the decision of the second respondent (the Tribunal) affirming a decision of a delegate of the first respondent (the Minister) not to revoke the cancellation of the appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth).

3    The primary judge granted the appellant’s application for an extension of time but dismissed his substantive application for judicial review.

4    For the reasons that follow, the appeal will be dismissed with costs.

Background

5    The appellant is a citizen of Zimbabwe. He first arrived in Australia in January 2006, at which time he was 13 years old. Subsequently, he was granted a Class BW Subclass 856 Employer Nomination Scheme visa.

6    The appellant has a lengthy criminal history as summarised by the Tribunal at [40]–[44] of its decision and which is also referred to at J [3]–[8]. He is currently in immigration detention.

7    On 6 September 2018, a delegate of the Minister cancelled the appellant’s visa pursuant to s 501(3A) of the Migration Act following several convictions resulting in sentences of imprisonment. That decision was revoked in February 2020 and, accordingly, is not the subject of challenge in this proceeding.

8    On 8 April 2021, the delegate again made a decision to cancel the appellant’s visa (the second cancellation decision). This was on the basis that:

(1)    the delegate was satisfied that the appellant had a substantial criminal record, and therefore did not pass the character test, due to criminal convictions in 2018 for which the appellant was sentenced to an aggregate term of three years’ imprisonment, which was reduced to a term of 18 months on appeal; and

(2)    the fact that the appellant was serving a sentence of imprisonment on a full-time basis as a result of a 2021 conviction of “Assault occasioning actual bodily harm (DV)” and was sentenced to 12 months’ imprisonment.

9    On 10 April 2021, the appellant made representations seeking revocation of the second cancellation decision. As part of this process, the appellant completed a Personal Circumstances Form dated 5 May 2021.

10    On 15 February 2022, another delegate decided, pursuant to s 501CA(4), not to revoke the second visa cancellation decision (non-revocation decision).

11    On 18 February 2022, the appellant applied to the Tribunal for review of the non-revocation decision pursuant to s 500(1)(ba) of the Migration Act. The Tribunal heard the application on 28–29 April and 3 May 2022. The appellant appeared without legal representation.

12    On 10 May 2022, the Tribunal affirmed the non-revocation decision. That decision was the subject of challenge in the primary proceeding which gave rise to the orders that are the subject of this appeal.

The Tribunal’s Decision

13    Pursuant to s 501CA(4)(b) of the Migration Act, the Tribunal determined that the issues on review were whether the appellant has a “substantial criminal record” such that he fails the statutory character test and whether there is another reason why the second cancellation decision should be revoked.

14    The Tribunal observed that the first question is uncontested. The appellant was sentenced to a term of imprisonment of greater than 12 months and accordingly, by definition, he fails the character test set out in s 501(6) of the Migration Act.

15    In relation to the second issue, the Tribunal observed that it was bound by s 499 of the Migration Act to have regard to “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction no. 90).

16    Direction no. 90 provides guidance for decision-makers on how to exercise the discretion to (inter alia) revoke a mandatory cancellation of a non-citizen’s visa under s 501CA.

17    Paragraph 6 of Direction no. 90 requires the decision-maker to take into account the considerations identified in paragraph 8 (Primary Considerations) and paragraph 9 (Other Considerations), where relevant to the decision.

18    In making a decision under s 501CA(4), the following are Primary Considerations as enumerated in paragraph 8 of Direction no. 90 (in summary):

(1)    protection of the Australian community from harm as a result of criminal activity or other serious conduct;

(2)    whether the non-citizen committed family violence;

(3)    the best interests of minor children in Australia affected by the decision; and

(4)    expectations of the Australian community.

19    Paragraph 9(1) of Direction no. 90 provides that in making a decision under s 501CA(4), other considerations must also be taken into account, where relevant to the individual case. The paragraph contains the following non-exhaustive list of Other Considerations:

(1)    international non-refoulement obligations;

(2)    extent of impediments if removed;

(3)    impact on victims; and

(4)    links to the Australian community, including:

(a)    strength, nature and duration of ties to Australia; and

(b)    impact on Australian business interests.

20    Of particular relevance to this appeal is the Tribunal’s consideration of the appellant’s use of drugs and alcohol. In considering the Primary Consideration of “protection of the Australian community”, the Tribunal stated at [99]–[101]:

Clearly there is an underlying aetiology for the Applicant’s offending which relates to the misuse of alcohol and other drugs. By his own admission these have included marijuana, speed, “ice”, cocaine and MDMA.

The Applicant claims that he is “still addicted to drugs and alcohol and it’s very hard for me to quit”. On the other hand he insisted under cross-examination that he could drink moderately and not become drunk, which was also the evidence of one of his friends. The Applicant made a significant submission that if given the opportunity he would embark on a course of medication based on the use of Acamprosate (Campral) and/or Naltrexone to overcome his “drinking problem”. Unfortunately he misconceives both the therapeutic use of these medications and the fact that they require complete abstinence to start to have any effect at all.

There is no medical diagnosis to support the proposition that the Applicant has a clinical diagnosis or dependency on alcohol as distinct from being what he describes as a “binge drinker” who regularly got “wasted”. Similarly, the Tribunal cannot import into the Applicant’s narrative and needs a finding that he has a health issue which needs to be addressed in these findings.

(Footnotes omitted; emphasis added.)

21    The Tribunal went on to consider the remaining Primary Considerations and Other Considerations including, relevantly, the “extent of impediments if removed”.

22    Paragraph 9.2(1) of Direction no. 90 provides that:

(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.

23    In its analysis of this consideration, the Tribunal observed that the appellant is “a relatively young man, he is physically fit with no diagnoses of significant physical or mental health problems”: [156]. Further, while the Tribunal accepted that health services in Zimbabwe may not be comparable to those available in Australia, “there is no submission by the Applicant that he actually has significant needs for health services”: [159].

24    After considering each of the above listed Primary Considerations and Other Considerations in turn, the Tribunal reached the following conclusions at [182]–[183]:

Using the weighing criteria outlined above, the Tribunal finds that:

•    the protection of the Australian community criterion counts significantly against the Applicant;

•    the family violence criteria counts significantly against the Applicant;

•    the best interests of minor children count in favour of the Applicant to a limited degree;

•    the expectations of the Australian community criterion counts significantly against the Applicant;

•    non-refoulement obligations count neutrally in relation to this Applicant;

•    the impediments if removed criterion counts to a moderate degree in favour of the Applicant;

•    the impact on victims criterion counts neutrally in relation to this Applicant; and

•    the links to the Australian community (including relevant business interests) criterion counts in favour of the Applicant to a limited degree.

It must follow from this, particular [sic] given the strength of findings in relation to Primary considerations, that the calculus must result in a finding significantly against the Applicant and against any revocation of his visa cancellation.

(Emphasis original.)

25    Accordingly, the Tribunal affirmed the non-revocation decision: [188].

The Primary Judge’s Decision

26    The appellant brought an application for an extension of time in which to apply for judicial review of the Tribunal’s decision. Pursuant to orders of the Court, the appellant was granted leave to rely on a proposed amended originating application for the purposes of his application for an extension of time and, if granted, application for review.

27    The primary judge granted the extension of time, finding at J [31] that it was necessary in the interests of the administration of justice. That decision is not challenged on this appeal. His Honour then turned to consider the substantive application for judicial review.

28    Only one of the appellant’s grounds of review before the primary judge is relevant to the present appeal, namely that the Tribunal’s decision to affirm the non-revocation decision was affected by jurisdictional error because the Tribunal failed to take into account a mandatory relevant consideration, that being whether the appellant would face an impediment if removed from Australia to Zimbabwe on account of his health. The primary judge considered this ground of review at J [52]–[86].

29    At J [73]–[74], the primary judge addressed the Tribunal’s conclusion at [101] as to the existence of a “health issue”:

It is apparent that the Tribunal was unwilling to find, on the evidence before it, that Mr Nkani’s use of drugs and alcohol gave rise to a health issue which needed to be addressed in the Tribunal’s reasons (at [101]). … Reading the Tribunal’s reasons as a whole, I understand the Tribunal’s conclusion at [101] is that the Tribunal did not consider that Mr Nkani’s use of drugs or alcohol gave rise to a health issue which needed to be addressed in the Tribunal’s reasons.

Mr Nkani did not contend that that conclusion was irrational or unreasonable such as to constitute jurisdictional error. The conclusion finds support in the material before the Tribunal, which is reproduced above, although it can be accepted that Mr Nkani’s representations with respect to his use of drugs and alcohol contained significant inconsistencies. One the one hand Mr Nkani referred to being addicted to drugs and alcohol; on the other hand Mr Nkani represented that he had only used drugs once between 2016 and 2022 and was able to drink moderately. Although the Tribunal observed that there was no “medical diagnosis” to support a conclusion that Mr Nkani has a clinical dependency on alcohol, I do not understand the Tribunal to be suggesting that a medical diagnosis is required before such a finding can be made. Rather, I understand the Tribunal to be adverting to the absence of a medical diagnosis as a matter it took into account in making the finding that the Tribunal was not satisfied that Mr Nkani has a health issue in the nature of a clinical dependence on alcohol.

30    The primary judge then went on to consider the Tribunal’s reasons with respect to paragraph 9.2(1)(a) of Direction no. 90. His Honour’s reasoning at J [80]–[85] was as follows:

In substance, Mr Nkani made two criticisms of the Tribunal’s reasons with respect to paragraph 9.2(1)(a) of the Direction. First, Mr Nkani criticised the Tribunal’s statement that Mr Nkani has “no diagnoses of significant physical or mental health problems”, and submitted that this reveals that the Tribunal wrongly believed that a health issue could only be taken into account if it was supported by medical certification. Second, and in the alternative, Mr Nkani submitted that the Tribunal erred in failing to consider whether his drug and alcohol dependency issues might pose an impediment on his return, and thereby failed to take account of a mandatory consideration in paragraph 9.2(1)(a) of the Direction.

I do not accept the first criticism. I do not understand the Tribunal to be saying that it would only take account of a health issue if there was a medical diagnosis or certification to support the claim. As has been said on many occasions, the reasons of an administrative decision-maker are not to be read finely “with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The Tribunal’s reasons at [156] merely record a finding of fact that Mr Nkani had “no diagnoses of significant physical or mental health problems”. That finding was factually correct on the material before the Tribunal. As stated above, the absence of a medical diagnosis of alcohol dependency is a relevant matter for the Tribunal to consider, and there is no error in the Tribunal taking that into account in making findings and reaching a decision.

I also reject the second criticism. The Tribunal’s reasons at [156] and [159] demonstrate that the Tribunal took into account Mr Nkani’s health as required by paragraph 9.2(1)(a) of the Direction. It can be accepted that the Tribunal did not make reference to whether Mr Nkani’s alcohol or drug use might pose an impediment on return to Zimbabwe. However, I infer that the Tribunal did not make reference to Mr Nkani’s alcohol or drug use in that context because the Tribunal did not consider that it was relevant in the context. In my view, it was open to the Tribunal to form that view.

The materials before the Tribunal concerning Mr Nkani’s use of drugs and alcohol have been reproduced above. Read fairly, the materials were directed to the reasons for his offending and the risk of his reoffending. None of the materials referred to his use of drugs and alcohol as giving rise to an impediment to establishing himself and maintaining basic living standards in Zimbabwe. In my view, no such claim was articulated by Mr Nkani, and no such claim clearly arose from the materials.

As discussed earlier, the Tribunal reached the conclusion at [101] that it did not consider that Mr Nkani’s drug and alcohol use gave rise to a health issue that needed to be addressed in the Tribunal’s reasons. Mr Nkani did not challenge that finding as being legally unreasonable. Having made that finding, it is understandable that the Tribunal did not then consider whether Mr Nkani’s drug and alcohol use would give rise to an impediment to Mr Nkani establishing himself and maintaining basic living standards in Zimbabwe. It was reasonable for the Tribunal to form the view that Mr Nkani did not have a health issue associated with his drug and alcohol use that required consideration in that context.

As submitted by the Minister, Mr Nkani had to point to more than the existence of his alcohol and drug use to engage paragraph 9.2(1)(a) of the Direction. Necessarily, the condition must be of such a nature that it may impede Mr Nkani in establishing himself or in maintaining a basic standard of living in Zimbabwe. Mr Nkani made no such representation, and no such representation clearly arose on the materials before the Tribunal.

31    For those reasons, the primary judge dismissed this ground of review: J [86].

The Ground of Appeal

32    By his amended Notice of Appeal, filed one day before the appeal was heard, the appellant abandoned two of the three grounds on which he originally sought to appeal from the decision of the primary judge.

33    The remaining ground of appeal stated as follows:

The learned primary judge erred in finding that a claim made by the Appellant in support of another reason for revocation of an earlier decision made by the First Respondent’s (“Minister”) delegate to cancel his visa did not clearly arise from the materials lodged with the Second Respondent (“Tribunal”).

(Emphasis omitted.)

34    The amended Notice of Appeal provided the following particulars in support of this ground:

(A)    By ground 2 in his Proposed Amended Originating Application for Review of a Migration Decision filed with the Court below, the Appellant contended that the decision made [by] the Tribunal on 10 May 2022 (“Decision”), to affirm an earlier non-revocation decision made on 15 February 2022 (“Non-Revocation Decision”), was affected by jurisdictional error as the Tribunal had failed to take into account a mandatory relevant consideration before making its Decision.

(B)    In support of ground 2, the Appellant submitted to the learned primary judge that the Tribunal’s error arose from its failure to consider the Appellant’s drug and/or alcohol use as a “health” issue(s) when considering paragraph 9.2(1)(a) of Ministerial Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“MD 90”).

(C)    In dismissing ground 2, the learned primary judge found inter alia that no claim was clearly articulated, or clearly arose on the materials before the Tribunal, to the effect that the Appellant’s drug and/or alcohol use presented an impediment to his return. For that reason, the learned primary judge found the approach taken by the Tribunal was open to it and that ground 2 was not made out: Nkani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1410 (“J”), [82]-‍[85].

(D)    The learned primary judge erred in so finding. The Appellant was self-represented before the Tribunal. A claim that his drug and/ or alcohol use presented an impediment to his return clearly arose on the material before it.

(Emphasis omitted.)

Consideration

35    The substance of the appellant’s case on this appeal is that the Tribunal failed to lawfully consider the appellant’s health (as it relates to his drug and alcohol use) as an impediment he would face if removed to Zimbabwe as mandatorily required by paragraph 9.2(1)(a) of Direction no. 90 and that the primary judge erred in failing to make this finding.

36    The appellant submits that a claim clearly emerged before the Tribunal (which it was required to consider) that the appellant may face relevant impediments to his return by reason of his alcohol and drug related health issues, particularly if he continued or relapsed upon removal from Australia.

37    In this appeal, the appellant contends that he has a “health issue” arising from his use of drugs and alcohol. The appellant relies on this “health issue” as one which was alive before the Tribunal, being an implied claim which clearly arose before the Tribunal from its own findings and the material and representations before it upon which the findings were based. The appellant also submits that this conclusion should more readily be reached given that the appellant was a self-represented litigant appearing in a hearing of some complexity extending over several days.

38    The findings, representations and material which the appellant submits gave rise to this implied claim are outlined below:

(1)    by his Statement of Facts, Issues and Contentions before the Tribunal, the Minister advanced an “affirmative case” that the appellant had an issue with alcohol and drug use which was out of control;

(2)    the Tribunal’s findings regarding the appellant’s dismissal from the Drug Court program and the appellant’s brief admission, and further scheduled admission, to rehabilitation facilities indicate an acceptance by the Tribunal that the appellant had an ongoing issue with drugs and alcohol;

(3)    various witnesses, including the appellant’s former partner, mother and half-sister (each of whom was found to be credible by the Tribunal), gave evidence that the appellant consumed alcohol and drugs and behaved poorly under their influence;

(4)    the Tribunal’s findings at [99]–[108], including references to the appellant’s attempts to “get clean”, reflect “the language of addiction”;

(5)    the appellant’s submission that, if given the opportunity, he would embark on a course of medication to overcome his “drinking problem” (recognised by the Tribunal at [100] of its reasons) and engage in other rehabilitative measures, such as counselling.

39    The appellant contends that these matters should have led the primary judge to conclude that the issue of drug and alcohol addiction as a health issue requiring medication and treatment was “very much in play” before the Tribunal.

40    However, evidence or findings which reflect that the appellant misuses alcohol and drugs, has a propensity for poor behaviour or committing crimes while intoxicated and has required rehabilitative intervention does not compel a finding that the appellant has a dependency on alcohol amounting to a “health issue”, let alone one that would impede his reintegration in Zimbabwe. In this regard, this case has strong parallels with the facts in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516; [2023] FCAFC 116 at [113]–[115] (Logan, Rangiah and Goodman JJ), especially as the appellant’s own evidence concerning his use of drugs and alcohol before the Tribunal was inconsistent, as referred to in J [71(e)] and [74].

41    Further, there was no medical diagnosis of any such “health issue”: J [74]. In the Personal Circumstances Form completed by the appellant in support of his request for revocation of the second cancellation decision (and in evidence before the Tribunal), the appellant disclosed no diagnosed medical or psychological conditions underneath the heading entitled “Impediments to Return: Health Information”. Where the form requests details regarding treatment by health professionals or counsellors, the appellant had written the word “none”.

42    Other evidence before the Tribunal indicated that the appellant’s use or misuse of drugs and alcohol did not rise to the level of a “health issue”.

43    For example, Ms Kirsten Barrett-Miller (who had an intimate personal relationship with the appellant for four out of the seven years preceding the hearing and whose credibility was accepted by the Tribunal) gave the following evidence during cross-examination:

I certainly wouldn’t call him an alcoholic… Because I think an alcoholic is somebody that is addicted - you know, they’re addicted to the substance. They need to drink every day to, you know, just to get by. Whereas Taku certainly, he’s a social drinker, you know, he’ll drink when there’s people. He’s not the type that would sit at home and, you know, drink by himself.

44    Further, Mr Thomas Platt and Mr Paul McCann (who are both friends of the appellant and who the Tribunal considered to be credible) gave evidence that, while the appellant had a serious drinking problem, they would not describe him as an alcoholic. During cross-examination, Mr Platt agreed that the appellant is able to “drink without getting drunk” and indeed “that’s how most of our drinking sessions go”.

45    In order to clearly emerge from the material, an unarticulated claim must be based on “established facts”: Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 (Nicholas, Thomas and Downes JJ) at [45], citing AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (Collier, McKerracher and Banks-Smith JJ) at [18]. Having regard to the materials before the Tribunal, including the appellant’s written and oral evidence and the evidence of witnesses who knew him personally, no claim of a “health issue” that would relevantly impede the appellant if removed to Zimbabwe and which was based on established facts could be said to have clearly emerged in this case.

46    For these reasons and contrary to the appellant’s submissions, this is not a case where the appellant advanced an implied or unarticulated claim that his use of drugs and alcohol was a “health issue” that would present an impediment if removed to Zimbabwe. As correctly found by the primary judge at J [83] and [85], no such representation clearly arose on the materials before the Tribunal.

47    Further, even had such a claim been made, the Tribunal concluded at [101] that it did not consider that the appellant’s drug and alcohol use gave rise to a health issue that needed to be addressed in its reasons. In other words, the Tribunal did consider the claimed “health issue”. As observed by the primary judge at J [85], it is understandable that the Tribunal did not then consider whether the appellant’s drug and alcohol use would give rise to an impediment to the appellant establishing himself and maintaining basic living standards in Zimbabwe. That is because, having made the finding at [101], it was not necessary for the Tribunal to revisit the existence of a health issue pertaining to drug and alcohol use when considering the “extent of impediments if removed”. That the Tribunal’s reasons did not advert expressly to the appellant’s use of drugs and alcohol under its consideration of the “extent of impediments if removed” is a logical consequence of its earlier finding that no “health issue” of this kind existed, and thus no relevant health issue arose for consideration under paragraph 9.2(1)(a).

Disposition

48    For these reasons, the appeal should be dismissed with costs.

Associate:

Dated:    3 June 2024