FEDERAL COURT OF AUSTRALIA

DFW18 v Minister for Home Affairs [2019] FCA 599

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be granted.

2.    The decision of the second respondent dated 13 March 2018 be set aside and the matter be remitted to the second respondent for reconsideration according to law.

3.    The first respondent pay the applicant’s costs of the application as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The applicant is a Turkish national. On 3 February 2017 his Class BB Subclass 155 Five Year Resident Return Visa (the “Visa”) was cancelled by a delegate of the first respondent (the “Minister”) because the applicant did not pass the character test prescribed by s 501(6) of the Migration Act 1958 (Cth) (the “Act”). At that time, the applicant was serving a sentence of imprisonment. On 14 December 2017 another delegate of the Minister decided not to revoke that cancellation decision pursuant to s 501CA(4) of the Act. The applicant sought review of that decision in the Administrative Appeals Tribunal (the “Tribunal”). By a decision dated 13 March 2018, Member Maryniak, Q.C., affirmed the delegate’s decision. The applicant sought judicial review of that decision but was late in filing his application. The Minister very properly agreed to that extension of time.

Background

2    The applicant is around 53 years old. He arrived in Australia at the age of four. He was married in 1994 and has two adult children. In 2013 he divorced his wife and commenced a relationship with a woman who is intellectually disabled.

3    He has lived in Turkey on occasion. For example, he lived in that country between 1982 and 1984. In 1989 he returned to Turkey to undertake compulsory military service. He was then sexually abused by another soldier. He returned to Australia in 1994 following marriage to his then wife.

4    The applicant’s criminal record is very extensive. Between 1980 and 2015, he committed over 150 offences, and served some 18 terms of imprisonment. He has a string of convictions, amongst other things, for burglary, theft, assault, drug use, failing to answer bail, and unlicensed driving. These were all carefully surveyed by the Tribunal below. The longest sentence he received was 16 months, following his conviction for using a false document. The sentencing judge in 2010 observed that his then prospects for rehabilitation were “not good”.

5    In 2015 the applicant committed a disgusting assault on his de facto partner. He repeatedly struck her with a garden fork causing shallow puncture wounds. He continued the assault in a bedroom using a large screwdriver to puncture her skin. He put his hands around her throat. He shook her. He tried to suffocate her with a pillow. He threatened her with a knife. She was left with over 100 injuries and required extensive hospital treatment.

6    For this crime, for which he pleaded guilty, he received a sentence of eight months’ imprisonment and a community corrections order for 15 months following his release. The sentencing judge observed in 2016 that because of drug use, the applicant suffered from mental illness. He had a history of severe depressive episodes and at times of self-harm. He had also experienced family violence at the hands of his father. In 2016 he was diagnosed with a schizoaffective disorder.

7    However, the sentencing judge also observed that since the assault the applicant appeared to be making “real changes” to his life, as a result of, amongst other things, his participation in certain programs. The judge observed that he needed to be guarded about any prospects of rehabilitation but, nonetheless, concluded that the applicant had “reasonably good prospects of rehabilitation”.

Legislative Provisions

8    Section 501CA of the Act provides:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

The Tribunal’s Decision

9    Pursuant to s 499 of the Act, the Tribunal applied the “primary considerations” and “secondary considerations” in Ministerial Direction No. 65. The grounds of review before me were really directed at what was said to be errors in the application of that Direction.

10    The Tribunal considered the “primary considerations”, namely protection of the Australian community; the best interests of minor children in Australia; and the expectations of the Australian community. It made the following findings about these matters at [50], [51] and [53] (describing the applicant as “DGPZ”):

In summary, I am satisfied that the risk of DGPZ committing further serious offences of the sort he has committed in the past is moderate and therefore unacceptable.

…

There are no minor children in Australia whose interests are relevant in this case.

…

In light of the evidence and parties’ submissions before the Tribunal, the number and frequency of DGPZ’s offences, the various ‘second chances’ Australia has extended to DGPZ throughout his life, including receipt and signed acknowledgement by him of a formal warning from the Department in 2011, I find that the Australian community would expect that DGPZ should not continue to hold a Visa. This is in spite of his unfortunate childhood and problems with mental health and illicit drug and alcohol abuse, which I accept.

(Footnote omitted.)

11    It also considered the “secondary considerations” which included, the strength, nature and duration of the applicant’s ties to Australia; the applicability of the international non-refoulement obligations; and the extent of the impediments he would face, if sent to Turkey. It made the following findings about these matters:

(1)    It accepted that there would be a negative impact on the applicant’s sister, nephews, niece, daughter and his brother-in-law if he were to be removed to Turkey. However, this factor could not “outweigh” the findings made with respect to the primary considerations.

(2)    As to Australia’s non-refoulement obligations, all of the Tribunal’s reasoning is contained at [59]-[64] as follows:

… I accept that DGPZ’s life will be more difficult in Turkey than if he is permitted to remain in Australia.

However, I do not accept that his life will necessarily spiral out of control in Turkey. DGPZ has lived there before, without incident on several occasions. Also, although the number of psychiatrists per head of population in Turkey may be lower, it should be possible for him to gain access to his current medications in Turkey.

I note the Tribunal is not required to conduct an extensive assessment of DGPZ’s claims to fear harm in Turkey, especially some hypothetical fears.

There is no evidence of risk of persecution on the basis of his race, religion, nationality, membership of a particular social group or political opinion. Whilst I accept that his Turkish language skills may be a bit more basic at present, no doubt such skills will improve once he is back in Turkey and again conversing daily in Turkish.

Further, the evidence does not suggest a real risk that DGPZ would suffer ‘significant harm’ if he returns to Turkey: see s 36(2A) of the Act.

In any event, and with regard to all the submissions put on behalf of DGPZ I find on the evidence in this proceeding and given the conviction history of DGPZ, the primary considerations outweigh the secondary consideration of any claims concerning non-refoulement obligations owed or in combination with the other secondary considerations.

(Footnote omitted.)

(3)    As to the extent of impediments he would face if sent to Turkey, all of the Tribunal’s reasons are contained at [66] as follows:

I accept that DGPZ will have some difficulties in re-engaging with life in Turkey and have carefully considered Mr Guo’s [(counsel for DGPZ)] submissions in this regard. I find that DGPZ will face challenges in re-integrating with Turkish society, but these challenges are not insurmountable. DGPZ has shown increased resilience since the 2015 injury offence. Even if I am incorrect in this view, the extent of impediments are not sufficient to outweigh my findings on the primary considerations. Thus, the secondary considerations do not displace the primary considerations in this case.

12    The Tribunal concluded as follows at [67]-[70]:

In conclusion, Mr Guo put a compelling set of submissions in support of DGPZ and it is clear that the penny may have finally dropped so far as DGPZ is concerned, with respect to the privileges associated with living in Australia.

However, after considering all the submissions of the parties and the evidence I find that DGPZ’s efforts are ‘too little too late’. Such belated efforts are outweighed by the findings I have made regarding the protection of the Australian community and the expectations of the Australian community.

Whilst I have no power to direct it, I would ask that the Department consider, out of compassion, enabling DGPZ to visit his mother’s grave site, prior to any deportation from Australia.

The correct or preferable decision is to refuse to revoke the mandatory cancellation of DGPZ’s visa.

Grounds of Review

13    The four grounds of review were extensively particularised. They were as follows:

1.    The Tribunal erred by constructively failing to exercise jurisdiction and/or by failing to consider the applicant’s claim.

Particulars

1.    At paragraph [46] of the decision of the Administrative Appeals Tribunal dated 13 March 2018 (the Decision), the Tribunal found that the evidence before the Tribunal “does not mean that the risk of re-offending is any less than moderate”.

2.    The Tribunal said further that the “difficulty is that the submission as to low risk is dependent upon:

A.    DGPZ being accepted into program such as MIND, which is now accessed through the [National Disability Insurance Scheme (“NDIS”)]; and

B.    DGPZ being constantly monitored by his sister, brother-in-law and their three children”.

That statement was wrong. It did not accurately state the applicant’s submission.

3.    The submission put by the applicant had two limbs. The first was that, save as to the offence against [his partner], the applicant did not have a history of serious violent offending and was not at risk of further such offending: that is, not at risk of further serious violence offending. The second was that, putting to one side serious violent offences, the applicant no longer posed an “unacceptable risk” of reoffending.

4.    The second limb was put on the basis that the applicant’s circumstances had substantially changed since 2011 by reason of a combination of factors including:

(a)    the impact of his most recent offending;

(b)    the death of his mother;

(c)    his guilt about being absent for his mother’s death and funeral;

(d)    that his family continued to stand by him;

(e)    his understanding of the critical importance of long term intensive engagement with mental health and drug treatment programs;

(f)    that he remained abstinent from drug use;

(g)    that his prolonged period of immigration detention was forcing him to confront the reality of deportation; and

(h)    that he had reasonable prospects of rehabilitation.

5.    The submission was put on the basis that these factors had the effect that the applicant did not pose an unacceptable risk of reoffending. The applicant did not submit, nor was it the case, that the conclusion that the applicant “did not pose an unacceptable risk of reoffending” was “dependent” on the matters identified by the Tribunal. As such the Tribunal erred in fact by construing the submission on risk as being “dependent” on only two factors, and on the two identified factors.

6.    By reason of that error, the Tribunal constructively failed to exercise its jurisdiction and/or failed to consider the applicant’s claim in that it failed to engage with the submission in fact put by the applicant that, by reason of the identified matters, the applicant did not pose an unacceptable risk of reoffending.

2.    The Tribunal erred by failing to apply the correct test when assessing the risk posed to the Australian community and/or to take into account a mandatory consideration when assessing that risk.

Particulars

1.    The Tribunal was required to take into account the risk posed by the applicant to the Australian community. In assessing this criterion, the Tribunal was required to take into account:

(a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.

2.    The Tribunal did not give any consideration to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct. Instead, the Tribunal considered only the second limb, being the likelihood of the applicant engaging in further criminal or serious conduct.

3.    The Tribunal therefore failed to have regard to a mandatory criterion and, in doing so, it erred.

3.    The Tribunal erred by failing to take into account relevant considerations.

Particulars

1.    The applicant made a submission that, for the reasons set out in the applicant’s written submissions at [61]-[64], the cancellation should be revoked. That submission was that the matters set out in paragraphs [61]-[64] had the effect that the cancellation decision should be revoked for “another reason”.

2.    That submission fell within the category of an “other relevant” secondary consideration for the purposes of paragraph 14 of Direction No 65. The Tribunal was, therefore, required to take it into account.

3.    The Tribunal does not, in terms, address the matters set out in paragraphs [61]-[64] of the applicant’s written submissions. Elements of the contention in paragraphs [61]-[64] find expression in various parts of the Decision dealing with secondary considerations. But the decision does not show an active intellectual engagement with the proposition that the matters captured in paragraph [61]-[64], taken as a whole, represent a secondary consideration that is capable of supporting the conclusion that the cancellation should be revoked.

4.    The evidence before the Tribunal included evidence that the applicant had limited Turkish language skills, no ability to access welfare, nowhere to live and no source of income. These matters are not referred to by the Tribunal, and there is no evidence of intellectual engagement with them. Thus, the central proposition advanced by the applicant was not expressly considered in the Decision.

5.    Consequently, the Tribunal failed to take into account relevant considerations, being the submission advanced at paragraphs [61]-[64] of the submissions.

4.    The Tribunal erred by making findings not supported by any evidence and by failing to consider submissions advanced by the applicant.

Particulars

1.    At paragraph [62], the Tribunal said that there was no evidence of risk of persecution on the basis of race, religion, nationality, membership of a particular social group or political opinion. At paragraph [63], the Tribunal said that evidence did not suggest that there was a ‘real risk’ that DGPZ would suffer ‘significant harm’ if he returned to Turkey.

2.    The evidence before the Tribunal was that the applicant has limited Turkish language skills, no ability to access welfare, nowhere to live and no source of income. There was, therefore, evidence that the applicant would suffer harm if returned to Turkey. These considerations do not find any expression in the Decision.

3.    The applicant’s submissions concerning the treatment of persons with a mental illness in Turkey are not addressed at all. The Tribunal failed to consider the applicant’s claim that he would suffer harm if returned to Turkey.

4.    For these reasons, the Tribunal failed to consider the submissions of the applicant.

5.    The Tribunal made a positive finding of fact that it “should be possible” for the applicant to “gain access” to his current mediation: Decision at [60]. There was no evidence before the Tribunal to support that finding. It was made without any evidence.

Consideration

Grounds One and Two

14    Grounds one and two tended to overlap during argument before me. I have considered them together.

15    The first ground of review complained that the Tribunal failed to address an argument, or series of contentions, relied upon concerning risk to the Australian community. It was said that the Tribunal misconstrued the case that was being put by the applicant when it said at [46]:

I have carefully considered all of Mr Guo’s submissions. However, I find that the evidence before the Tribunal does not mean the risk of re-offending is any less than moderate. The difficulty is that the submission as to low risk is dependent upon:

(a)    DGPZ being accepted into programs such as MIND, which is now accessed through the NDIS; and

(b)    DGPZ being constantly monitored by his sister, brother-in-law and their three children.

16    The applicant’s case, it was submitted, was that the applicant did not have a history of serious violence, save for the assault on his partner. The risk of him committing that type of crime again had to be measured against the contention that the applicant’s circumstances had changed since 2011. Moreover, it was said that the applicant had otherwise submitted that there was no “unacceptable risk” of him re-offending in relation to his other crimes.

17    A difficulty in the consideration of this submission has been that the transcript of the Tribunal proceeding was not before me. Moreover, the lawyers who represented the parties below were different to the counsel appearing before me. I thus had no way of knowing whether what is described at [46] reflected what was said to the Tribunal by the applicant’s lawyer.

18    I was nonetheless invited to consider the written material presented to the Tribunal by the applicant and in particular his Statement of Facts, Issues and Contentions (“SFIC”) as well as a witness statement. Both documents were detailed. They each made claims about the risk to the Australian community which, it was said, were not addressed by the Tribunal, or the Tribunal failed to consider. In that respect, counsel for the applicant relied upon the following expression of principle from the judgment of Brennan J (as his Honour then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 61:

A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.

19    It was said that there were “salient facts” here that were not considered. In the applicant’s SFIC at [104]-[106], the applicant contended:

The Applicant no longer poses an unacceptable risk of reoffending to the Australian community. His circumstances are now significantly different to those in 2011: the profound impact of the nature of his most recent offending on him and his genuine remorse, the circumstances of the death of his mother on his own birthday while he was in immigration detention and unavailable to his family, the terrible guilt he has for letting his mother and his family down and his commitment to make amends, the fact that his family has continued to stand by him, and his understanding of the critical importance of long term intensive engagement with mental health and drug treatment programs are all things that have hit him in recent years.

Despite all of this, the Applicant remained abstinent and intensively engaged with programs and services in the year leading up to his sentencing and a further 18 months of abstinence during his detention is now added to that time period. The length of the Applicant’s detention, particularly post-visa cancellation, forcing him to confront return to Turkey and what that will mean for him, and the pain that it will cause to his family, is a further compelling and distinguishing feature of his situation this time.

The prospects of the Applicant’s rehabilitation was extensively dealt with by Judge Hicks. In addition to the comments already noted above that his Honour made in relation to the Applicant’s insight and remorse, his Honour said: …

20    What followed in [106] was an extensive quote from the sentencing observations of his Honour Judge Hicks in 2016. Some of these are set out by the Tribunal at [32]. However, perhaps surprisingly, the following sentencing remarks are not referred to at [32]:

I am of the view that for whatever reason now at the age of 50, you decide to change your life and are making an absolute genuine attempt to do so. In my opinion, what can be said at least with confidence, however, is that despite your long-standing [drug] abuse and mental health issues, you now possess prospects of rehabilitation. You have a lot of support around you from various community services and mental health programs and most importantly, there is you, who has developed the real desire to attend all these programs punctually and comply with them.

Overall, in my opinion, you have reasonably good prospects of rehabilitation.

(Emphasis added.)

21    The SFIC went on to make the following claims at [107]-[110]:

Judge Hicks’ assessment of the Applicant having reasonably good prospects of rehabilitation relate in the main to his excellent engagement with a range of support services over an extended period since his offending, and to the professionals involved reporting his good insight, improvement and commitment to recovery. It should be emphasised again that much of this was voluntary.

The Applicant was assessed for the Mind Australia Residential Support Program prior to his incarceration in 2016 and can be referred back to that program of his visa cancellation is revoked. This 12 month program would provide accommodation and support during the Applicant’s transition back into the community. It is noted that [his sister] is also offering her home to her brother.

The Applicant’s community corrections order remains on foot. The order provides for supervision assessment and treatment programs and these would be recommenced if his visa cancellation is revoked. Participation in these programs, as a condition of the community corrections order, would be mandatory under the Sentencing Act 1991 (Vic), and are likely to be overseen by the Neighbourhood Justice Centre Collingwood where the Applicant is already connected with trusted workers.

Mental Health Support Worker Scott Nelson who supported the Applicant for 11 months prior to his imprisonment, recommends a combination of clinical and community mental health supports for the Applicant. He sets out a support plan in his letter of 7 February 2018. He is prepared to provide ongoing community mental health outreach support to the Applicant. He notes that the Applicant was benefiting from psychological counselling with Michael Bilyk for mental health management strategies and that psychological counselling may continue to be of benefit.

22    At [111]-[112] in the SFIC, the following claims are then made:

In prison, the Applicant continued abstinence with clear drug screen results. The Applicant was employed with good reports, completed several programs and maintained regular contact with his family through weekly visits. The Applicant eventually complied with his mental health medication and gained stability in his mental health prior to his transfer to immigration detention. Despite the devastation of his mother’s passing while detained on Christmas Island and consequent grief and depression, the Applicant has maintained abstinence, stability and good behaviour on Christmas Island. This augurs well for his return to the community if the visa cancellation is revoked and indicates he is not likely to reoffend.

The Applicant’s risk of reoffending is also reduced by the ongoing support and guidance he has from his family here in Melbourne. His sister [redacted], whilst younger than her brother has always been looked upon by him as his big sister. [She] understands what is required to support her brother to make lasting change this time. [She] is realistic about the challenge and given what is at stake in the event her brother is removed to Turkey, is committed to provide the Applicant with the discipline, love and support he needs. [She] recognises the critical need of long term professional supports being available to her brother and to him engaging with those supports and services for years not months. [The daughter] who is studying social work and who now has matured with greater insight into her father’s struggles will also be a strong source of love, support, and encouragement to her father.

23    In his witness statement, the applicant made a number of claims about the risk of re-offending. At [45], he said:

I will not cause any more problems in the community. I am ashamed of what I have done and am sorry for it. As I have explained the crime against [the former partner] has jolted me and troubled me a lot. I want to make up to my family for all that I have done wrong. I want to be a support to my sister and my children don’t want them to suffer because I am sent to Turkey. It has been very hard since my mother died and in her name I want to change my life too. I am terrified of being sent permanently back to Turkey and this is another reason why I won’t do anything to risk this happening.

24    The applicant submitted that the Tribunal did not address any of this material sufficiently. In particular, the statement at [46] that the Tribunal had carefully considered all of the applicant’s submissions was no cure-all for this failure. In that respect, for the purposes of grounds one and two, the applicant criticised the Tribunal’s conclusion at [50] that there was a moderate risk of the applicant committing “further serious offences”. The offences were never identified. In the context where the applicant had committed a great variety of property, drug and violent offences, the Tribunal should have identified the particular offence or offences which it considered the applicant might commit. The applicant also criticised the Tribunal for not recognising that the assault against his partner was out of character, and not like his other types of offending. The Tribunal should have considered separately the risk that that type of re-offending might occur in the future.

25    The Minister submitted that the applicant was seeking to have the Court engage in an impermissible review of the factual findings of the Tribunal. It submitted that the Tribunal did have regard to all the material before it and that it was open to it to conclude, that without the claimed intensive mental support services being put in place, and the family monitoring, the risk that he might re-offend could not be assessed as low but needed to be moderate. In that respect I note that at [45], the Tribunal summarised the applicant’s claims as follows:

(a)    DGPZ has been ‘clean’ from illicit drugs since around the start of his Community Corrections Order on 5 November 2015, during his time in prison, and then in detention, continuing to date.

(b)    DGPZ has shown himself to be more disciplined during this recent period with his approach to rehabilitation, treatments and medication regimes and such discipline will continue with the continuation of his Community Correction Order, once released back into the community;

(c)    DGPZ is highly motivated and has built up strong relationships with those assisting him;

(d)    DGPZ will be offered employment of 15 hours per week at the company where his brother-in-law works;

(e)    If intensive mental support services including the MIND program are put in place and the 24/7 family monitoring proffered occurs, such support will prevent DGPZ from re-offending;

(f)    DGPZ, since injuring his ex-partner and the death of his mother, is genuinely motivated not to return to illicit drug use or to re-offend.

26    The issue for determination is whether the Tribunal considered the applicant’s claims about the issue of risk set out above. In that respect, it is accepted that it did not need to undertake any “line-by-line refutation” of the evidence of the applicant: Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [48]. However, it did need to, as a matter of substance, have regard to the representations put: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [45] per Rares and Robertson JJ. On review, the Court must consider the reality of consideration. Reasons for decision should not be subjected to unreasonable scrutiny: Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [42] per Flick J. Having said that, a broad statement made by a Tribunal that it had considered all claims will be deficient if it does not go on to address substantively each material claim or salient fact.

27    In my view, the Tribunal’s reasoning in relation to the issue of risk shows that, subject to two matters, it did, as a matter of substance, have regard to the applicant’s claims. It may have provided more detail, but the summary at [45] shows that it had actively considered most of the claims made before it. In that respect, I observe that the contention that the applicant had changed since 2011 is arguably inconsistent with the assault in 2015 and the death of the applicant’s mother in 2017. I say no more about this chronology.

28    The first matter is the finding of Judge Hicks that in 2016 the applicant had “reasonably good” prospects for rehabilitation and the submission made in the SFIC at [107], supra. In my view, that assessment by a County Court judge could be inconsistent with the conclusion reached by the Tribunal below that there was a moderate risk that the applicant would commit further serious offences. At the very least, the Tribunal needed to assess carefully the impact this finding made by Judge Hicks could have had on a determination of risk. This was not a peripheral item of evidence. In my opinion, it was not merely a salient fact but a compelling and central finding. Yet it is not referred to in the reasons of the Tribunal. I infer that it was not considered. If it had been, its relative importance would have been obvious, and it would have been dealt with expressly. The failure to consider this contention constitutes jurisdictional error.

29    Ground one, with respect, is made out to that extent.

30    The second matter is the applicant’s remorse. He expressed that remorse in his witness statement. I have set out the passage at [23] above. The Tribunal’s decision makes no express reference to the issue of remorse in assessing risk. In my view, albeit with less confidence, I am satisfied that it nonetheless considered this issue. At [45(f)], Tribunal recorded its consideration of the contention that the applicant was now “genuinely motivated not to return to illicit drug use or to re-offend” since injuring his ex-partner and the death of his mother. In my view, I infer that this included a consideration of the applicant’s remorse.

31    As to ground two, it was submitted that the Tribunal was required by Direction No. 65 to assess the nature of the possible harm to individuals should the applicant re-offend, and then determine the likelihood that this would occur. As cl 13.1.2(2) of that Direction states:

In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

(a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending …

The applicant submitted that the Tribunal did not consider the first matter. The Minister submitted that the Tribunal did consider the nature of the offences committed, albeit elsewhere in the reasons for decision. He relied upon [36]-[38] as follows:

In respect of many of the offences DGPZ was convicted of, he was fined rather than sentenced to a term of imprisonment. The fines might appear relatively low by today’s values but were not so insignificant when viewed in the context of wages and standards at the time. What is of concern is the frequency of his convictions. I accept that he had illicit drug addiction and alcohol problems, and the evidence supports this.

However the sheer number of convictions and frequency of them, together with the variety of convictions suggests that DGPZ appears to have thought himself above the law, and to have had little regard for the law in Australia.

Several of DGPZ’s offences have involved violence and such violent offences increased in frequency during 2013 to 2015, being:

(a)    assault by kicking and unlawful assault in 1982;

(b)    unlawful assault in 1988;

(c)    robbery/assault with intent to rob in 1996;

(d)    two charges of unlawful assault in 2001;

(e)    unlawful assault in 2013;

(f)    unlawful assault in 2014; and

(g)    intentionally cause injury in 2015 (convicted 2016).

(Footnote omitted.)

32    The Minister also relied upon [40]-[42] as follows:

In the premises I find that DGPZ’s criminal offending to date is serious, involves violence and must be viewed very seriously, and in one instance has involved a violent crime against a vulnerable member of the community, his intellectually disabled partner.

I further find that DGPZ has provided false or misleading information to the Department including in representations dated 27 February 2017 stating he had not been back to Turkey since 1969 and, in his third and most recent application for Australian citizenship, in a statutory declaration sworn 4 October 2006.

I am satisfied that DGPZ’s conduct whilst in Australia must be regarded as serious and as indicative of his becoming engaged in more serious offending as the years have gone by.

(Footnotes omitted.)

33    The Minister submitted that the reference to “further serious offences” at [50], supra, was to all of the applicant’s prior offending. In my view, the foregoing was a sufficient consideration of the nature of the offences committed. That conclusion is not diminished by the fact that the Tribunal’s consideration of this issue occurred before its analysis of the risk to the Australian community. Each of the conclusions it reached were open to it to make.

34    Ground two is not made out.

35    I should record that I was, nonetheless, anxious about the expression of the conclusion at [50] concerning risk. I raised this with the parties at the hearing of this application. As already mentioned, the type of “further serious offences” was never identified. That makes comprehension of the reasoning that the risk was “moderate” and “therefore unacceptable” more difficult. Why was a moderate risk of further offending “unacceptable”? To understand that proposition one would need to understand what offences the Tribunal member had in mind. But there was no such finding.

36    The Minister relied upon the reasons in Salahuddin v Minister for Immigration and Citizenship [2013] FCA 588 for the proposition that it was unnecessary for the Tribunal to specify what offences it thought might be committed in the future, and therefore what types of harm to the community might result. In Salahuddin, Jacobson J said at [40]:

It is true that in the present case, the Tribunal did not refer expressly to the nature of the harm to individuals or the Australian community should Mr Salahuddin engage in further criminal conduct. But it seems to me that it is plain that the whole thrust of the decision was that Mr Salahuddin is unlikely to break his drug addiction and that it is almost inevitable that he will re-offend by committing the same sort of offences as were demonstrated in his existing criminal history.

37    The Minister submitted that this passage is applicable to [50] of the Tribunal’s reasons for decision. Counsel for the applicant disagreed. She submitted that the offences in Salahuddin were of a confined kind. They were “mainly property and drug related, although a small number involved violence including two convictions for assault occasioning actual bodily harm” (at [28]). It was submitted that there was no corresponding close correlation of the types of offences in this matter. The applicant’s offences were both various and very numerous. I respectfully agree with that submission.

38    On balance, I am prepared to accept that the Tribunal’s reference to “offences” at [50] was intended to encompass all of the applicant’s prior offending. However, by not considering that the risk of re-offending might be different for different offences, or categories of offences, the Tribunal, in my view, may have erred. It may be accepted that in some cases it is appropriate to consider the risk of re-offending in a global way. Salahuddin was perhaps such a case. But, here, because of the sheer number and variety of offences committed, the Tribunal member perhaps needed to address the issue of risk by reference to different categories of offences, possibly by a consideration of groups of like offences, and then judge whether a “moderate” risk existed in relation to each category or type of offence. That analysis did not take place. If this had been a ground of review, I would have been inclined to conclude that the Tribunal had erred in its consideration of risk under Direction No. 65. As ground two did not express an error of this kind, I say no more about it.

Grounds Three and Four

39    Grounds three and four were argued together. They attacked the findings about Australia’s non-refoulement obligations and about the impediments the applicant might face if returned to Turkey. It was said that there was a failure to take into account substantial arguments and contentions, and that findings were made which were not supported by evidence.

40    One commences with the contents of [61]-[64] of the applicant’s SFIC, which the applicant submitted were not taken into account by the Tribunal. Those paragraphs related to the category of considerations in Direction No. 65 entitled “other considerations”. These included Australia’s international non-refoulement obligations and the extent of impediments if removed.

41    Paragraphs [61]-[64] were in these terms:

If the Applicant’s visa cancellation was revoked and he was permitted to return to the Australian community, he would have the support of his sister [redacted] and her family along with the support of his two children and his daughter [redacted] in particular. [The sister’s] partner is able to provide meaningful and stable employment the Applicant as a cleaner, to ensure he stays out of trouble.

Further, if the Applicant’s visa cancellation was revoked, his community corrections order with supervision and program requirements would re-commence, most likely supervised by the Neighbourhood Justice Centre Collingwood where he has established relationships of trust with support workers. The Applicant would then have the opportunity to be reassessed for the Mind Australia Residential Program. The Applicant would be able to recommence drug and alcohol counselling, psychological counselling, and other clinical and community mental health support that his treaters recommend. The Applicant wishes to engage with all of these kinds of programs for the long term, to prevent relapse.

In contrast, the applicant is at high risk of harm if returned to Turkey, given his vulnerabilities.

These are the reasons why the cancellation should be revoked, and the discretion to do so should be exercised accordingly under s 501CA(4)(b)(ii).

42    The applicant also relied upon the decision of the Full Court of this Court in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 for the proposition that the possibility of an applicant being exposed to serious harm was a matter to be “weighed in the balance” together with the other factors that might point towards non-revocation. The applicant also relied on the following passage from the recent decision of Mortimer J in Omar v Minister for Home Affairs [2019] FCA 279 at [82]:

The question before the Assistant Minister is whether or not to revoke the cancellation of a particular visa: a previously existing visa, which entitled the person to remain in the Australian community, on a particular basis, with the particular status and benefits that accompany that visa. Thus, the question for the Assistant Minister was whether to restore that particular visa to the applicant. In determining whether or not to exercise that power, if the person makes representations that she or he is a person to whom Australia has non-refoulement obligations, and sets out a serious and substantive basis in fact and in law for that representation, part of the statutory task involves consideration of that representation, just as it does any other serious and substantive representation advanced by that person.

It was said that the foregoing principles are equally applicable to the Tribunal when exercising the power in s 501CA(4): Applicant in WAD531/2016 v Minister for Immigration and Border Protection [2018] FCAFC 213.

43    For that purpose, the applicant also relied, perhaps more in aid of ground four, upon [124]-[128] of his SFIC, which were in the following terms:

Given the Applicant’s documented personal circumstances which includes a long and complex history of substance abuse, diagnosed mental illness including schizoaffective disorder and psychotic depression, his history of suicidality and [self-harm] both in prison and in the community, his injury from previous assaults to his head, his PTSD diagnosis[,] his hearing loss, Hepatitis C and latent Tuberculosis, he will be at high risk of serious and significant harm in Turkey.

This is because if returned to Turkey, the Applicant will have no financial resources to draw on and very limited if any access to welfare. The Applicant has nowhere to live in Turkey and will have no source of income from employment. Turkey’s social security system appears to be based on financial contributions made by a person during their working life in Turkey while employed or self-employed. As the Applicant has negligible work history in Turkey, he does not appear to meet the qualifying requirements for any of the pension or benefit payments under this system. Thus, the Applicant’s capacity to subsist will be in serious question.

Further, the Applicant has no close family in Turkey to support him unlike how he does here. The Applicant will be devastated to be separated from his two children and his only sibling [redacted] and her family.

Further still, the Applicant’s Turkish language skills are limited and he is not accustomed to Turkish culture, having lived almost all of his life in Australia. The Applicant remembers Turkey as the place where he experienced serious and significant harm in Turkey during his period in military service.

The stress of return to Turkey given all of the above in combination, will cause the Applicant to deteriorate mentally and given past experience to become depressed, suicidal and to self-harm. Country information confirms ill-treatment of people with mental illness in Turkey. Then, on top of this, if the Applicant is homeless, which is the only available inference given that he has no support or any ready place to live and cannot speak the language, his risk is heightened.

(Footnotes omitted.)

44    The applicant also relied on [134]-[135] of his SFIC as follows:

It [is] necessary for the Tribunal to weigh carefully the Applicant’s offending against the application of Australia’s non-refoulement obligations in this case.

Further, there is a very real prospect of either indefinite detention, or a forced deportation to Turkey despite international law obligations preventing Australia from doing so, given the Minister’s current position in relation to s 197C of the Act. If the Tribunal decides not to revoke the visa cancellation, then the Minister, on his current view of the law (which is disputed by the Applicant) would be compelled by s 198 of the Act, to detain him indefinitely. That would amount to the imposition of unlawful additional punishment. In the alternative, the Minister might forcibly deport the Applicant to Turkey even though he would there face a real risk of serious and significant harm. The Tribunal should conclude that the significance of this paradox attached to non-revocation is such as to outweigh any of the considerations that might point towards non-revocation.

(Footnote omitted.)

The foregoing paragraphs highlight the claims the applicant made about his mental and physical health; about his lack of financial resources and inability to access welfare; about his contention that he would have nowhere to live; about his inability to qualify for a pension; about his lack of family in Turkey; about his limited language skills; about the risk that his mental condition would deteriorate thus increasing the risk of self-harm; about country information which was said to confirm the ill-treatment of the mentally unwell in Turkey; and about the prospects of indefinite detention. For the reasons expressed below, whether all of these claims are accurate or true remains unknown.

45    The applicant again submitted that the Tribunal erred in failing to consider material claims made, by not making findings on material issues, and by making findings of fact that were unsupported by even a skerrick of evidence: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225. In that respect, the applicant criticised the Tribunal’s reliance upon the decision in Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [28], where the Full Court of this Court relevantly said:

An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s “non-refoulement obligations”. It is in this context that s 501E of the Migration Act may assume some relevance. By reason of that provision, the decision of the Minister to cancel Mr Ayoub’s visa pursuant to s 501 could not operate to prevent a future application being made for a protection visa.

The applicant submitted that the foregoing passage was no answer to its submission that important parts of his case had not been addressed by the Tribunal.

46    It was not disputed that when a Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon established facts, there can be both a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]; SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452 at [50]. As already mentioned, the Tribunal must have regard to the representations put, as a matter of substance: Maioha at [45].

47    I infer that the matters raised in the SFIC, as set out above, were probably the subject of submission before the Tribunal, and were probably considered by it. In particular, I am not satisfied that the matters set out at [61]-[63] of the SFIC were not taken into account. The matters contained in those paragraphs were broadly summarised by the Tribunal at [45], supra. It is true that this summary appears in the context of a consideration of risk to the Australian community. However, I would not infer that they were also not considered for the purposes of a consideration of Australia’s non-refoulement obligations. They underpin the finding that the applicant’s life “will be more difficult in Turkey”.

48    Ground 3 is not made out.

49    However, there were other claims made in the SFIC that were not the subject of any finding at [59]-[64] or at [66] of the Tribunal’s reasons for decision. Ground 4 appeared to be directed at these. Amongst other things, as already mentioned, the applicant submitted that he would have no source of income in Turkey and would be unable to obtain welfare support, that he would have nowhere to live, that he suffered from mental illness and would be exposed to disadvantage in that country, that there was country information that people with mental illness are ill-treated in Turkey, and that if returned to Turkey there was an increased risk that he would self-harm. These contentions were relevant to an analysis of the non-refoulement obligations and/or the possible impediments that might be encountered. They may or may not be true. They were not, however, the subject of any finding by the Tribunal. In particular, the observation at [62] that there was “no evidence” of a risk of persecution on the basis of the applicant’s “social group” would appear to be inconsistent with the contention that people with mental health are ill-treated in Turkey. It was submitted that the applicant’s contentions were not adequately addressed by the finding that it would be “more difficult” for him to live in Turkey and that his life would not “necessarily spiral out of control”. It was said that the attention given to the applicant’s grounds here was “scant”.

50    The Minister submitted that the Tribunal stated that it had regard to all the oral evidence and the written evidence. Thus at [20], the Tribunal said:

I set out below the facts that are either not in dispute or that I have found after hearing DGPZ’s oral evidence and that of his sister, brother in law, daughter and Scott Nelson, mental health support worker and Dr Tran Nguyen, a psychiatrist; together with regard to all the written evidence, comprising the G and Supplementary G Documents and tendered exhibits.

51    The Minister submitted that the Tribunal had regard to the language difficulties the applicant might face and to his need for assistance because of his mental illness. It accepted that the applicant would encounter difficulties “in re-engaging with life in Turkey” and for that purpose, “carefully considered” the applicant’s contentions. In the Minister’s submission, the Tribunal had, as a matter of substance, had regard to the representations put and had made findings that were open to it to make. He contended that the reference to “no evidence” in [62] should be read as reference to there being no evidence which the Tribunal had accepted concerning the risk of persecution. Finally, and in particular, it was emphasised that the primary considerations, in any event, outweighed the “secondary considerations” here, namely the non-refoulement obligations and the impediments the applicant might face in Turkey.

52    The applicant also criticised the finding at [60] that it was possible for him to gain access to his current medications in Turkey even though the “number of psychiatrists per head of population in Turkey may be lower”. It was said that that finding was made without a skerrick of evidence to support it. In Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162, in the context of a finding that the welfare systems of Australia and the United States were broadly similar, Burly J said at [29]-[30] as follows:

The relevant test for jurisdictional error arising by reason of an absence of evidence is set out in SFGB [by] the Full Court (Mansfield, Selway Bennett JJ) at [19]:

...If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357...

This passage has been endorsed in a number decisions of [this Court]; see Hands v Minister for Immigration and Border Protection [2018] FCA 662 where Griffiths J said at [37]:

Moreover, in the context of the decision-making task under s 501CA(4), such an error may be jurisdictional if the finding of fact is “a critical step” along the path to the ultimate conclusion whether or not to revoke the original decision to cancel a person’s visa. In DPR17, Perram J held that the Assistant Minister committed jurisdictional error in concluding that Australia did not owe any international non-refoulement obligations to the applicant in circumstances where there was no evidence before the Assistant Minister concerning the risk of harm to a protection visa holder if they were returned to China (see also SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402 at [19]).

See also Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277 (Marshall, North, Flick JJ) at [23]; ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 at [34] (Charlesworth J), SZSQL v Minister for Immigration and Border Protection [2015] FCA 294 at [29] (Gleeson J); and DRP17 v Minister for Immigration and Border Protection [2018] FCA 523 at [16]-[17] (Perram J).

See also Hands v Minister for Immigration and Border Protection [2018] FCAFC 225.

53    The applicant submitted that there was no evidence before the Tribunal which supported the observation made about the availability of the applicant’s medications in Turkey. The Minister submitted that the onus was on the applicant to demonstrate that there was no such evidence. He submitted that a psychiatrist gave evidence before the Tribunal and may have been the source of this observation. Given that the transcript was not before the Court, the applicant had not established that the finding at [60] was not supported by any evidence. On balance, I agree with that submission.

54    However, I am otherwise of the view that the Tribunal erred in not making findings about the material considerations relied upon by the applicant in his SFIC, and which I have set out above at [43]-[44], supra. In my view, the matters alleged were not of a minor or unimportant nature. They were clearly expressed and constituted salient contentions of fact concerning, how, for example, the applicant would be treated in Turkey as a mentally ill person, the increased risk of self-harm arising from that and other factors, and the difficulties he would face in obtaining housing and welfare support. It may be accepted that there is no obligation on the Tribunal to record in its reasons for decision its acceptance or rejection of every contention that may be made before it. Nonetheless, I find, and with great respect, that the reasoning which addressed Australia’s non-refoulement obligations and the impediments the applicant might face to be insufficient. It is insufficient because it fails to make findings about material contentions. Conclusions are reached, but they are expressed without accepting or rejecting the applicant’s material claims. This is best seen at [66] of the Tribunal’s reasons for decision, supra. All that the applicant claimed is addressed in only three sentences.

55    I also reject the Minister’s submission about how one should read the reference to “no evidence” in [62]. In my view, that is an observation about the evidence before the Tribunal. That observation was mistaken. Whether this error of itself would have constituted a jurisdictional error is not a matter I need decide.

56    My difficulty with the reasons is not cured by the statement that the primary considerations in any event outweighed the secondary consideration of any claims concerning non-refoulement obligations owed, or in combination with the other secondary considerations. Findings that needed to be made before that conclusion could reasonably have been reached were not made. One side of the scales had not been sufficiently identified.

57    In SZTQP, a Rwandan man sought a protection visa. It was refused. He sought review in the Tribunal. Part of his claim included the contention that when in Rwanda threatening phone calls had been made to him referring to his relationship with a certain army General. The Tribunal decided that “if” such calls had been made, they did not constitute a threat of serious harm because the applicant was able to change his phone number and could always decline to answer calls from unknown numbers. Nicholas, Robertson and Griffiths JJ observed that the Tribunal had made no finding as to whether or not the calls had in fact been made, what their content was or their significance to the applicant’s claim for protection. At [52], the Full Court said:

... in order to discharge its statutory review function, the Tribunal was required to consider the appellant’s claims and their integers. In the circumstances here, this obliged the Tribunal to determine whether or not it accepted that the threatening telephone calls had been made and, if it found that they had, to proceed to determine whether it accepted the appellant’s claims that he was threatened in those calls that he would “disappear from the earth” and that such threats were made because of his association with the General. If the Tribunal made findings of fact which were favourable to the appellant on these matters, they would be material in that they could indicate that, contrary to the Tribunal’s ultimate finding, the appellant remained a person of interest in mid-2011 because of his association with the General. If that fact was accepted, it indicated that the appellant was a person of interest well after he ceased reporting to the police the previous year, contrary to the Tribunal’s finding.

58    In my view, that reasoning, by analogy, applies here. In order to determine the primacy of the “primary considerations”, the Tribunal needed to make sufficient findings about the claims made in relation to the “secondary considerations”. If the Tribunal had then made findings of fact favourable to the applicant, that could have diminished in some way the importance of the “primary considerations”. It could have altered the weighing exercise which the Tribunal undertook.

59    Whether on the evidence before the Tribunal, it was possible to make such favourable findings of fact is not a matter I can, or should, make any observation about. It may be the case that even after accepting all of the applicant’s claims, it could be open to the Tribunal still to conclude that the primary considerations outweighed the secondary considerations. In that respect, it must be accepted that the applicant’s criminal record was alarming. That, however, will be a matter for the Tribunal to determine.

60    Ground 4 is made out.

61    For these reasons there will be an order for an extension of time and an order that this application for review be allowed with costs.

Associate:

Dated:    2 May 2019