FEDERAL COURT OF AUSTRALIA

Anees v Minister for Immigration and Border Protection [2019] FCA 84

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed with costs.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

Background

1    In 2007, the applicant came to Australia to study a Diploma of Commerce with the intention of undertaking a Bachelor of Commerce. He was granted entry pursuant to a student visa, and was later granted work rights on his student visa. In 2007-2008, he was a successful and involved student.

2    In August 2008, the applicant met his partner, whom the Tribunal called “Valentina”. She had some serious medical conditions, and the applicant chose to drop out of Deakin University, where he was studying his Bachelor of Commerce, to help her with her recovery. However, as he was no longer enrolled as a student, his student visa was no longer valid. The pair remain together, and are engaged. They claim that they plan to marry once the visa situation is resolved. Valentina suffers from multiple serious mental health issues.

3    From 17 January 2011, the applicant was charged with a number of offences. A full table of the developments in the relevant time period is available at [9] of the Tribunal’s reasons. It is unnecessary to refer to the detail of them. It suffices to say that the applicant shoplifted food, drink and medication for himself, as well as presents for Valentina. He also used credit card numbers he claimed to have found in a room in which he was staying to order goods online to a value of nearly $2,000. The Tribunal also emphasised three other offences: possession of a controlled weapon without excuse, recklessly causing injury, and threatening to inflict serious injury and assault with a weapon.

4    In August 2011, the applicant was taken into custody and discovered that he did not hold a valid visa and was in Australia unlawfully. In October 2011, when released from prison, he was taken to immigration detention. From this time, the applicant remained in Australia either in prison or on a bridging visa. He applied for a Partner Visa with Valentina.

5    In 2016, a delegate for the Minister for Immigration and Border Protection made a decision refusing the grant a Partner (Temporary) (Class UK) visa to the applicant. The applicant has been in immigration detention since.

6    Under s 501(1) of the Migration Act 1958 (Cth) (the Act), the Minister may refuse to grant a person a visa if that person does not satisfy the Minister that he or she passes the character test, which is set out in s 501(6). The delegate relied on s 501(6)(d)(i) to refuse to grant a partner visa to the applicant:

(6)    “For the purposes of this section, a person does not pass the character test if:

…

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia; or

...

7    Initially, a differently constituted Tribunal affirmed this decision. However, on 28 August 2017, a judge of the Federal Court of Australia, by consent, quashed the Tribunal’s decision and directed that the application be reviewed again according to law. There were no reasons given for these consent orders, nor directions regarding the hearing on remittal. As such, a newly constituted Tribunal (the Tribunal) heard the matter afresh.

8    On 20 June 2018, the Tribunal again affirmed the delegate’s decision. After considering the question of whether there was a risk that the applicant would engage in criminal conduct in Australia, the Tribunal concluded at [23] that:

…there is more than a minimal or remote chance that he would engage in the same sort of conduct were he again to form the view that someone or something required his attention above all else and regardless of the consequences to others. Therefore, I find that, in the event the event [sic] that [the applicant] were allowed to enter or to remain in Australia, there is a risk that he would engage in criminal conduct in Australia within the meaning of s 501(6)(d)(i). Therefore [the applicant] does not pass the character test and I must consider whether I should exercise the discretion to refuse to grant him a Partner (Temporary) (Class UK) visa under s 501(1).

9    In coming to this conclusion, the Tribunal had regard to a report by Mr Simmons, a Consulting Psychologist. The Tribunal referred to Simmons’ report in the context of asking whether the applicant will re-offend in the face of hardship. At [22] of its reasons, the Tribunal found that Simmons’ report:

…does not answer that question. His evidence is that [the applicant’s] behaviour seems to have arisen from a particular set of circumstances and that he appears to be at a low risk of offending. Mr Simmons could not otherwise make a prediction of [the applicant’s] behaviour in the future.

10    The Tribunal then considered the various factors affecting the application of the discretion to refuse to grant the applicant a Partner Visa. The reasoning is summed up in [81] as follows:

[The applicant] had responsibilities and he chose to ignore them because he wanted to care for her and they were enjoying each other’s company. He chose that course when he did not have a permanent visa and he chose it when he had the first wake-up call when he was charged with using an unregistered motor vehicle and driving while his authorisation was suspended. His offending started there and continued as I have described. It was a course of offending that showed disregard for the law even when he had the right to work but did not. His reasons for not working centre on Valentina’s needs but [the applicant] made a choice about ignoring his responsibilities to the wider community. There is a real risk that he would go down the same path if he were faced with hardship and the potential for harm to members of the community outweighs his interests and those of Valentina. As hard as it is for him and for Valentina to be parted by being in different countries, I have decided that the interests of the Australian community lie in [the applicant’s] not being permitted to be a member. They lie in his being refused a visa.

The issue in this proceeding

11    The applicant filed his initial originating application on 6 July 2018. It contained three grounds. On 1 August 2018, a judge of the Federal Court made orders giving leave for the applicant to file an amended originating application. He did so on 10 October 2018, putting forward a single ground. The ground states that the Tribunal erred in failing to consider the relevant, material and significant evidence contained in a letter from Dr Eric Salter, the applicant’s general practitioner. Dr Salter indicated that he did not believe the applicant is at any greater risk of future criminal activity than any other Australian, and that given his dedication to his partner, the risk is negligible. The ground in terms is as follows:

1.    The Tribunal committed jurisdictional error by failing to consider “relevant, material and significant” evidence and representations.

Particulars

(i)    The Tribunal had before it a report of Mr Warren Simmons, Psychologist; CB 1158-62 which the Tribunal referred to in the context of asking itself whether “if hard times comes again”, would the Applicant “repeat his actions so that he steals to support himself?”; CB 1189 [22]. The Tribunal said that Mr Simmon’s evidence “does not answer that question?” and that “Mr Simmons could not otherwise make a prediction of the [Applicant’s] behaviour in the future.”

(ii)    However the Tribunal found that if the Applicant were allowed to remain in Australia, there is a risk he would engage in criminal conduct in Australia within the meaning of s 501(6)(d)(i); CB 1189 [23].

(iii)    The Tribunal had before it a letter from Dr Eric Salter (CB 1163) who had been the Applicant’s treating general practitioner since June 2014 and who dealt directly with the question of the likelihood of future offending posed by the Tribunal and referred to in (i) above.

(iv)    The Tribunal did not refer to this letter from Dr Salter in its decision.

(v)    The evidence of Mr Salter was relevant, material and significant to assessing the Applicant’s representations which the respondent failed to consider.

Consideration

12    The applicant’s counsel conceded that the Salter documents (of December 2016, see below) were not psychological reports or risk assessments. However, he emphasised that they were important and relevant: the author being a medical professional with regular and long-term contact with the applicant. The applicant argued that together with Simmons’ report, and particularly Mr Simmons’ finding that the applicant was at low risk of further offending, these pieces of evidence were relevant to the character test and the exercise of the Minister’s (and Tribunal’s) discretion.

13    The submissions of the applicant have a forceful simplicity: relevant and important evidence was overlooked and not taken into account by the Tribunal. Were it so simple, there would be a tolerably clear case of a failure to take into account a relevant consideration. There was broad agreement as to that proposition and it is unnecessary to refer to the cases in that regard to which both sides referred.

14    The difficulty arises from how Dr Salter’s (relevant) report was put forward to the Tribunal as relevant. In essence, the first respondent submitted that a lack of reference to Dr Salter’s report was entirely understandable in the light and context of its use and deployment at the hearing. It was submitted that Dr Salter’s report was put before the Tribunal only as supporting material for the report of an expert psychologist, Mr Simmons, and was not relied upon independently and separately as supporting Mr Simmons’ views. Indeed, the first respondent submitted that, in the circumstances that the matter was presented to the Tribunal, it would have been a breach of procedural fairness to the first respondent to have dealt with Dr Salter’s report in the way contended for by the applicant.

15    It should be noted at the outset that there was no argument about the procedure and method of the Tribunal. Indeed, the argument proceeded on an agreed basis that the Tribunal was, broadly, perhaps with exceptions not relevant here (see, for example, Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 64; 54 FLR 334) entitled to deal with material put before it conformably with the purpose of its production or tender to the Tribunal. Nor was there any debate about the proposition that the Tribunal was entitled to proceed on the basis of the material placed before it; and it need not (and should not) search for different and divergent material that had been before the earlier Tribunal.

16    It is appropriate now to descend into a little more detail.

17    The first respondent first emphasised some factual elements of the matter. The applicant was represented by senior and junior counsel (Mr Burnside SC and Mr Farhall), and a solicitor, before the Tribunal. At this hearing, there was discussion of the evidence the applicant was seeking to reply upon. Dr Salter’s letters (there were three, see below) had not been tendered before the newly constituted Tribunal. The first respondent’s counsel sought clarification as to what material was being relied upon, with particular concern over the possibility that Dr Salter’s opinion would be included. Mr Burnside SC confirmed that Dr Salter’s letters would not be relied upon by the applicant. During cross-examination of Mr Simmons, who was a witness before the Tribunal, the Minister asked whether Mr Simmons had relied upon and assumed the correctness of certain documents, including Dr Salter’s letter, in making his report. Mr Simmons indicated he had. In re-examination, Mr Farhall for the applicant asked Mr Simmons whether the letter from Dr Salter was one of the documents relied upon. Mr Simmons answered “yes”, and the letter was put into evidence. At no time during addresses to the Tribunal did Mr Burnside refer to the letter by Dr Salter. It is plain from the transcript of the hearing before the Tribunal that the concern of counsel for the Minister was to understand what evidence was being led and if Dr Salter was to be directly or independently relied upon, he would be required for cross-examination.

18    In this context, the first respondent directed its submissions to two subjects: first, whether the applicant had established that the Tribunal did in fact fail to consider the evidence of Dr Salter; secondly, if so, whether the evidence was of such significance to the review that the failure to consider it amounted to jurisdictional error.

19    It is important at this point to note that there are three documents by Dr Salter. The applicant’s submissions refer to two letters from Dr Salter: one dated in 2015 and the other on 9 May 2016. The first respondent’s submissions focused on the letter from Dr Salter dated 5 December 2016. The first letter was an attachment to the statement of reasons for refusal of a visa on 21 September 2016. The second, dated 9 May 2016, was sent to the Visa Applicant Character Consideration Unit by email by the applicant. The third was tendered at the second Tribunal hearing following re-examination of Mr Simmons, a witness for the applicant before the Tribunal.

20    The letters dated 2015 and 9 May 2016 were not placed before the present Tribunal by the applicant represented as he was by counsel. As noted earlier, the Tribunal heard the matter afresh. The Tribunal did not have regard to evidence given in the previous hearing unless it was again given or admitted in evidence: [1] of the Tribunal’s reasons. As I said, there is no suggestion that this approach is to be criticised.

21    On the basis that the letter being referred to by the applicant is that dated 5 December 2016, the first respondent argued that it is improbable that the Tribunal failed to consider Dr Salter’s letter. The Tribunal stated that it had considered “all of the evidence” before it in relation to the issue of recidivism. The weight given to this statement depends on context, requiring the need for substantive (not merely formal) consideration of material. Here, the letter by Dr Salter might not have been expressly referred to by the Tribunal, quite reasonably, for any one or more of the following reasons. First, the applicants expressly indicated during the hearing that they did not rely upon the letter of Dr Salter. Secondly, the letter of Dr Salter was not relied upon in the oral submissions of the applicant. The first respondent emphasised that no submission was made by the applicant in response to the first respondent’s “clear submission” that the evidence of Mr Simmons should be afforded little weight because it was based in part on an assumption of the accuracy of Dr Salter’s letters (which had not been tested).

22    Looking at the conduct of the hearing before the Tribunal, it is plain that the December 2016 report of Dr Salter was only ever put forward as support and background for Mr Simmons’ views. It can be reasonably inferred that a choice was made not to expose Dr Salter to cross-examination. It would have been wrong and unfair of the Tribunal to use the letter as the independent basis for a finding in favour of the applicant, otherwise than as material Mr Simmons took into account. In these circumstances, there was no call for the Tribunal to consider or refer to the letter separately, or at all.

23    Even if it is to be concluded that there was a failure to consider the evidence, the letter from Dr Salter was not of such apparent value that failing to consider it amounts to jurisdictional error. Its value should be seen in the context I have described. The only reason for finally tendering the letter by Dr Salter was in the context of Mr Simmons relying upon it. The applicant, through his counsel, did not rely on it directly, which course, as I have said, would probably have required Dr Salter’s views to be tested in cross-examination. However, the Tribunal did not dismiss Mr Simmons’ report because the Tribunal did not accept Dr Salter’s letters. Rather, the Tribunal indicated that it did not give much weight to the conclusion of Mr Simmons because Mr Simmons could not predict the applicant’s future behaviour other than by noting that his conduct was a product of particular circumstances and that he appeared to be at low risk of re-offending should such circumstances not arise. This much, on a fair reading of its reasons, the Tribunal itself largely accepted. What made this insufficient was that it was the applicant’s own actions that created those particular circumstances of homelessness and financial hardship: see [22] of the Tribunal’s reasons. Later, at [81], the Tribunal reasoned that “[t]here is a real risk that he would go down the same path if he were faced with hardship”. In this context and at this stage of considering and dismissing Mr Simmons’ report, Dr Salter’s report was not directly relevant. The submission of the appellant was first that Dr Salter’s report should be read as assuming that these conditions of life’s hardships would repeat themselves. I cannot agree. Dr Salter’s views plainly see a changed man, under changed circumstances. The Tribunal was entitled to approach the material on that basis.

24    In light of the above, the application should be dismissed with costs.

Associate:

Dated:    8 February 2019