FEDERAL COURT OF AUSTRALIA

Flores v Minister for Home Affairs [2019] FCA 1043

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the decision of the second respondent, made on 11 May 2018, not to revoke the cancellation of the applicant’s Class BB, Subclass 155 (Five Year Return) visa (the visa) (the decision).

2.    The first respondent, his officers, delegates or agents be restrained from acting upon or giving effect to the decision.

3.    A writ of mandamus issue directing the second respondent to re-determine, according to law, the applicant’s application to review the decision of the delegate of the first respondent, made on 19 February 2018, not to revoke the cancellation of the visa.

4.    The first respondent pay the applicant’s costs, as taxed or agreed, such costs to be paid directly to the applicant’s counsel, as Pro Bono lawyer, pursuant to r 4.19 of the Federal Court Rules 2011.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    Pursuant to s 476A of the Migration Act 1958 (Cth) (the Act), the applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), made on 11 May 2018. The Tribunal’s decision affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (the Minister), made on 19 February 2018 under s 501CA(4) of the Act, not to revoke the cancellation of the applicant’s Class BB, Subclass 155 (Five Year Resident Return) visa.

2    The application for judicial review was not filed within the time prescribed by s 477A(1) of the Act, but the Minister does not object to time being extended under s 477A(2) thereof. The length of the delay is about three weeks. The reason why the application was not filed on time is explained in an affidavit made by the applicant on 21 June 2018. Essentially, the applicant encountered difficulties in accessing electronic communications with his then lawyer whilst on Christmas Island, where he was detained. I am satisfied that it is in the interests of the administration of justice that an order extending time be made.

Background

3    The applicant is a national of the Philippines, born in 1971. He arrived in Australia in 1985, aged 14, with his younger sister on a tourist visa. He remained in Australia after his visa expired. He married in 1991 and had a daughter in 1992. He was deported to the Philippines shortly thereafter. While in the Philippines, the applicant started to use crystal methamphetamine (“ice”).

4    The applicant was granted a temporary partner visa on 29 December 1999 and returned to Australia. He and his wife had a second child, a boy, in July 2001, after which event the applicant and his wife separated. He then formed a relationship with another woman, with whom he subsequently had two daughters. Following the breakdown of that relationship, he started taking drugs again in the period 2004 to 2005.

5    Between 2004 and 2017, the applicant committed a number of offences, including possessing a prohibited drug, having goods in personal custody suspected of being stolen, and dishonestly obtaining property by deception. On 1 March 2017, he was convicted of a number of offences in the District Court of New South Wales. For these offences, the applicant was sentenced to a total of 16 months’ imprisonment.

6    On 23 June 2017, the delegate cancelled the applicant’s visa under s 501(3A) of the Act, on the basis that the applicant did not pass the character test within the meaning of s 501(6)(a) of the Act (substantial criminal record). This cancellation was required by the Act. The applicant was invited to make representations to the delegate about revoking this decision, and did so in accordance with the invitation. As I have recorded, on 19 February 2018 the delegate made a decision not to revoke the original decision.

7    On 27 February 2018, the applicant applied to the Tribunal to review this decision. He made submissions and provided evidence to the Tribunal. He also relied on the submissions he had made to the delegate when seeking revocation.

8    The application was heard on 11 April 2018 and, as I have recorded, the Tribunal affirmed the decision (not to revoke the original decision) on 11 May 2018.

Statutory framework

Statutory provisions

9    With respect to a decision made under s 501(3A) of the Act, s 501CA(4) provides:

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.

10    It is accepted that the applicant does not pass the character test and that the only basis on which the original decision could be revoked was that there is “another reason” within the meaning of that provision. Plainly, s 501CA(4) invokes a statutory discretion.

11    Section 499(1) empowers the Minister to make written directions which must be followed by a person or body having functions or powers under the Act in the performance of those functions or the exercise of those powers. In the present matter Direction No. 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 65) is important.

12    As a decision maker, the Tribunal was required to comply with this direction when considering whether there is “another reason” why the original decision to cancel the applicant’s visa should be revoked.

Direction 65

13    Part C of Direction 65 identifies the considerations that are relevant to a former visa holder when determining whether the discretion to revoke the mandatory cancellation of that person’s visa should be exercised.

14    Paragraph 13 of Direction 65 specifies the “primary considerations” which must be taken into account:

(a)    Protection of the Australian community from criminal or other serious conduct;

(b)    The best interests of minor children in Australia;

(c)    Expectations of the Australian community.

15    Primary consideration (b) is of particular importance in the present application. Paragraph 13.2 of Direction 65 provides:

(1)    Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.

(2)        This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3)        If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)    The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

e)    Whether there are other persons who already fulfil a parental role in relation to the child;

f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

16    Apart from the “primary considerations”, para 14(1) of the Direction requires “other considerations” to be taken into account, where relevant. These include;

(a)    International non-refoulement obligations;

(b)    Strength, nature and duration of ties;

(c)    …

(d)    …

(e)    Extent of impediments if removed.

17    With regard to international non-refoulement obligations, paras 14.1(3) and (4) of Direction 65 provide:

Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

…    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

18    With regard to the strength, nature and duration of ties, para 14.2(1) of Direction 65 provides:

    The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

a)    How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.        less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

19    With regard to the extent of impediments if removed, para 14.5(1) of Direction 65 provides:

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 support available to them in that country.

The Tribunal’s decision

20    In respect of the protection of the Australian community, the Tribunal found that the applicant’s offences were serious, with a history of repeated offending from 2004 to 2017. These offences were aggravated by the fact that the applicant had committed several of them while under obligations to the Court. The Tribunal found that the applicant had continued to reoffend despite having been given an unambiguous warning on 21 July 2014 that visa cancellation might be considered if he committed further offences or otherwise failed the character test in the future.

21    Further, the Tribunal concluded that the applicant will likely reoffend and cause harm to individuals because of his type of offending (drug offences and property offences). The Tribunal said:

28.    … the evidence suggests that the Applicant has not addressed the underlying causes of his offending behaviour, including his drug abuse problem. The Applicant has engaged in drug rehabilitation programs with lack of success. I cannot be satisfied that the Applicant will not relapse has he has done in the past.

22    In respect of the expectations of the Australian community, the Tribunal noted that the applicant had repeatedly committed the same or similar offences despite the imposition of parole conditions and previous warnings. The Tribunal noted that Direction 65 states (at para 13.3(1)):

… Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. …

23    The Tribunal said that this consideration “weighs substantially against” the applicant having regard to his “continued offending and the variety of his offending”, even though the Tribunal also recognised that the applicant has lived in Australia since the age of 14 years.

24    In respect of the best interests of minor children in Australia, the Tribunal found:

31.    The Applicant claims to have three minor children from two former partners: Zachery (16yrs), Katerina (12yrs), and Kaeciana (11yrs).

32.    The Applicant’s oral evidence was that he has had very little contact for most of the children’s lives. While I consider weight should be given to this issue, having regard to his lack of previous contact with his minor children and his history of drug taking, he is unlikely to be a positive influence.

33.    Likewise there are minor children who are his nephews and nieces. In fact, all family members want the Applicant to stay for various reasons. Although this is always an important consideration, in this case, it assumes less weight than other considerations including the other primary considerations.

34.    Refusal will, no doubt, affect his family and especially the minor children. However, this, I conclude, should in the overall circumstances, be given only moderate weight. I have formed this view even though I accept the evidence of some belated attempts to make contact with his minor children.

25    These findings are the entirety of the Tribunal’s findings in respect of this primary consideration. They are of particular significance in the present application.

26    The Tribunal then turned to make findings in respect of other considerations, dealing first with non-refoulement considerations:

36.    In documents before the Tribunal, the Applicant claims that he cannot return to the Philippines because, as a person with a criminal record of involvement with illicit substances, he will likely be subject to state sanctioned violence. He claims, alternatively, that as a reformed drug addict, there is a risk he may relapse in the Philippines.

37.    In oral evidence, the Applicant really did not pursue with any vigour this aspect of his case.

38.    The Applicant’s assertions could not, on any level of assessment, ground a finding that Australia’s non-refoulement obligations are engaged. Further, notwithstanding any weight that the Tribunal attributes to the Applicant’s claimed risk of harm in the Philippines, in the circumstances of this case and given the Applicant’s offending history, the primary considerations of the protection and expectations of the Australian community under Direction 65 outweigh any considerations in favour of revocation, including the claims concerning non-refoulement obligations.

39.    In any event, it is open to the Applicant to make an application for a protection visa, which would then compel the Minister to assess and determine his non-refoulement claims.

27    These findings are the entirety of the Tribunal’s findings in respect of this consideration. Once again, they are of particular significance in the present application.

28    The Tribunal considered other matters, which were in the applicant’s favour but which, the Tribunal concluded, should only carry “reduced weight”. At [41] – [42] of its Decision Record, the Tribunal found:

41.    The Applicant has substantial ties to Australia, with his family and children residing in Australia. The family wish for him to remain. His mother and niece made a genuine and passionate plea in this regard. The Applicant’s family has stated that he assists with the care of his father, who suffered a stroke and now has unidentified care needs. If the Applicant is removed, this will undoubtedly impact negatively on his family and the Applicant himself.

42.    Furthermore, it may be supposed that after a long absence from the Philippines, the Applicant will experience difficulties re-establishing himself.

29    The Tribunal also took into account the support and positive statements of referees as to the applicant’s good character and behaviour. The Tribunal accepted that the statements were genuine, but found that they did not outweigh the “other compelling considerations against his case”, having regard to Direction 65.

30    The Tribunal concluded:

45.    I am of the opinion that considerations of the protection of the Australian community and expectations of the Australian community weigh heavily against revocation of the mandatory cancellation of the Applicant’s visa and outweigh the considerations in favour of revocation.

46.    Having regard to the Applicant’s lack of good character, I cannot be satisfied that there is another reason why the mandatory cancellation should be revoked. The decision under review should be affirmed.

The grounds of review

31    Although expressed in various ways, the grounds of review focus on the Tribunal’s obligation to comply with Direction 65 and whether, in arriving at its decision, and in expressing its reasons, the Tribunal complied with that obligation.

32    The applicant alleges that the Tribunal constructively failed to exercise its jurisdiction by failing to respond to the following matters. The applicant says that these were “substantial, clearly articulated submissions” he had made:

(a)    Australia owes him non-refoulement obligations because he is from a particular social group whose members have been the subject of extra-judicial executions in the Philippines, endorsed by the Philippines government;

(b)    it is in the interests of his children that he remain in Australia due to matters including the negative effect his absence would have on his children (having regard to research about the effect on children of an absent father), his desire to reconnect with them and the undesirability of two of his children (Katerina and Kaeciana) living with their mother, given her suspected drug abuse; and

(c)    the extent of impediments he may face if removed from Australia, including that he is a person who is or was suffering from a substance abuse problem and the Philippines does not have health support systems for people with his condition (but treat it as a criminal problem) and that he may be subject to State-sanctioned violence (potentially extrajudicial execution) if he is returned to the Philippines, due to his history of drug use and potential to relapse.

33    The applicant alleges in the alternative that he was denied procedural fairness by these failures of the Tribunal.

34    The applicant also alleges that the Tribunal misapplied Direction 65, by failing to:

(a)    make a determination about whether revocation is, or is not, in the best interests of the children;

(b)    consider the strength, nature and duration of the applicant’s ties to Australia; and

(c)    consider the extent of the impediments he would suffer if removed from Australia.

35    The applicant also alleges that the Tribunal failed to have an intellectual engagement with the exercise of its jurisdiction and failed to provide adequate reasons (in that it did not explain why it concluded that Australia’s non-refoulement obligations were not engaged in relation to him).

Analysis

The best interests of the children

36    The applicant submits that the Tribunal dealt cursorily with this primary consideration and did not deal with matters he had raised. The applicant pointed to the following evidence that was before the Tribunal:

(a)    the applicant’s evidence that he wished to reconnect with his children and show them that he was a changed man and worthy to be their father;

(b)    evidence from the applicant’s mother that the applicant had told her that he planned to see his children and to be a loving, caring and responsible father to them, and that it would break his heart if he could not see them again;

(c)    evidence from a friend of the applicant that the applicant had told her that the most important thing he wants to achieve is to mend his relationship with his children and that he would be devastated if he never saw them again;

(d)    the applicant’s evidence that he had not seen his children because his ex-wife did not allow him to see them;

(e)    the applicant’s evidence of his wish to have his children Zachary (17), Katerina (12) and Kaeciana (11) reside with him on his release from prison;

(f)    the applicant’s evidence that he had taken care of Katerina and Kaeciana for more than two years and that information was available to him that the girls’ mother, with whom they lived, is “heavily on drugs and currently doing sex work”;

(g)    letters from the applicant’s niece and nephew (both minors) requesting that the applicant be allowed to remain in Australia; and

(h)    evidence from the applicant’s mother that her grandchildren (the applicant’s niece and nephew) were upset that they could not see their uncle.

37    The applicant submits that the Tribunal simply failed to make the determination it was required to make—which was whether the cancellation of his visa was, or was not, in the best interests of his minor children and his nephew and niece: see para 13.2(1) of Direction 65. The applicant submits that this obliged the Tribunal to give individual consideration to each child affected by the decision, given that their interests differed: see para 13.2(3). The applicant submits further that, in carrying out its task, the Tribunal was required to have regard to the likely effect that any separation from him would have on each child: para 13.2(4)(d). The applicant says that the Tribunal did none of these things.

38    Further, the applicant submits that this is not a case where there was no evidence before the Tribunal on which findings on these matters could be made. The Tribunal did not suggest that there was insufficient evidence; it simply failed to make relevant findings. In this connection, the Tribunal merely found at [34] of its Decision Record that refusal of the applicant’s application for revocation “will, no doubt affect his family and especially the minor children.” The applicant submits that this is not a finding as to each child’s best interest or the effect of the applicant’s separation from them.

39    The Minister accepts that the Tribunal did not make an express determination of where the best interest of the children lay. But, he submits, this is not indicative of error. The Minister submits that, on a fair reading of its reasons, the Tribunal implicitly accepted that the minor children would suffer if the cancellation of the applicant’s visa was not revoked, but concluded that significant weight should not be given to this factor because of the tenuous nature of the applicant’s relationship with the children. The Minister submits that when in [45] of its Decision Record the Tribunal referred to considerations in favour of revocation being outweighed, it must have been referring to the totality of those considerations, and that must have included the best interests of the children.

Conclusion

40    The Tribunal’s reasons in relation to this primary consideration—which I have quoted in full above—lead me to conclude that it did not engage with the evidence before it or the applicant’s case based on that evidence, and failed to carry out the task it was required to carry out with reference to Direction 65.

41    The Tribunal’s mere acceptance that the minor children (and the rest of the applicant’s family) would be “affected” by a refusal to revoke the cancellation does not show that it gave active consideration to what were the best interests of the children and whether revocation was, or was not, in their best interests. Had that task been carried out, it could reasonably be expected that the Tribunal would have articulated clearly what the children’s best interests were, and have stated why revocation was, or was not, in their best interests. It could reasonably be expected that, in carrying out that task, the Tribunal would also have made explicit findings on the likely effect that separation would have on them. The Tribunal did none of these things.

42    Further, the Tribunal’s reasons strongly indicate that, in considering the best interests of the children, it did not give active consideration to whether their respective interests differed. There was certainly evidence before the Tribunal that indicates the real possibility that their respective interests may well differ from individual to individual in various ways. But, it seems, the Tribunal did not even turn its attention to that possibility, as Direction 65 required it to do. Further, had the Tribunal turned its attention to that possibility, and had it come to a conclusion that different interests were involved, it was then obliged to give individual consideration to the best interests of each child to the extent of that difference.

43    I do not accept the Minister’s submission that the Tribunal made an implicit finding that the minor children would suffer, if by that submission the Minister means that the Tribunal did carry out the tasks to which I have referred. The cursory way in which the Tribunal dealt with this primary consideration in its Decision Record persuasively indicates an absence of substantive adherence to the directions which the Tribunal was obliged to follow under s 499 of the Act.

Australia’s non-refoulement obligations

44    The applicant submits that the Tribunal also dealt cursorily with this consideration. Before the Tribunal, he:

(a)    relied on information about the State-sanctioned approach to drugs in the Philippines, including extra-judicial killings;

(b)    submitted that Australia’s non-refoulement obligations were enlivened because there was a real risk that, if returned to the Philippines, he would relapse and be subject to State-sanctioned violence against people of a particular social group (people currently involved with illicit substances);

(c)    submitted that such violence could extend to people with a criminal record because of involvement with illicit substances; and

(d)    gave evidence of his own fear of violence if returned to the Philippines, supported by evidence from his sister and by Amnesty International reports of unlawful killings by police as part of the Philippines government’s anti-drugs campaign.

45    While the Tribunal noted the applicant’s claims that, as a person with a criminal record of involvement with illicit substances he would likely be subject to State-sanctioned violence, and that there was a risk that he might relapse to drug taking if returned to the Philippines, the Tribunal did not refer to any of the material on which the applicant relied in expressing his fears or deal with the discrete aspects of his claim. The Tribunal simply said that, in oral submissions, the applicant “did not really pursue with any vigour this aspect of his case” and then expressed the bare conclusion, without any reasons whatsoever, that the applicant’s “assertions” could not ground a finding that Australia’s non-refoulement obligations were engaged.

46    The applicant submits that the Tribunal simply failed to deal with his claims and submissions. The applicant also submits that the Tribunal did not comply with its duty under s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AATA) to give adequate reasons.

47    The Minister submits that the Tribunal made two distinct, and alternative, findings. First, the Tribunal found (at [38]) that Australia’s non-refoulement obligations were not engaged. Secondly, it found (at [39]) that the applicant could, in any event, make an application for a protection visa, which would compel the Minister to assess and determine his claims. The Minister submits that the applicant has attacked the first finding but not the second.

48    The Minister argues that this is important because Direction 65 recognises that if an applicant can make a valid claim for “another visa”, then non-refoulement need not be assessed; the applicant had, and has, the opportunity to have his non-refoulement claims considered as part of a protection visa application, which he can make.

49    The Minister submits that it follows that Australia’s non-refoulement obligations were properly considered by the Tribunal because it made an alternative finding, which was “correct”. By this I understand the Minister to mean that it was correct for the Tribunal to note that the applicant could, in any event, make an application for a protection visa at which time his non-refoulement claims would be considered. It further follows, the Minister submits, that it is not necessary to consider, on this application, the Tribunal’s first finding, including the manner in which the Tribunal addressed the applicant’s claim, although in oral submissions the Minister argued that the Tribunal did engage with the substance of the matters the applicant had advanced.

Conclusion

50    I do not accept the Minister’s submission. Direction 65 is clear. Claims regarding Australia’s non-refoulement obligations can be raised in a request under s 501CA of the Act to revoke the mandatory cancellation of a visa. When such a claim is made, it is not necessary for the decision maker to determine whether non-refoulement obligations are owed when determining whether the cancellation should be revoked. The difficulty with the Minister’s submission is that, rather than electing not to determine the applicant’s non-refoulement claim, as permitted by Direction 65, the Tribunal did deal with that claim, and dismissed it peremptorily. The fact that the Tribunal noted, almost as an aside, that the applicant could apply for a protection visa, in which his non-refoulement claim would be considered, is, with respect, not to the point. Thus, it is necessary to consider, on this application, the Tribunal’s conclusion that Australia’s non-refoulement obligations were not engaged in respect of the applicant.

51    What is plain on the face of the Tribunal’s Decision Record is that, apart from noting the applicant’s claim, it contains no reference whatsoever to the material on which the applicant relied in raising Australia’s non-refoulement obligations; it does not deal with his discrete claims; and it does not contain any reasoning at all to support the conclusion to which (it seems) the Tribunal so readily came—that Australia owed no such obligation to the applicant.

52    The applicant is correct to complain that, contrary to s 43(2) of the AATA, the Tribunal did not give adequate reasons. But, to my mind, the more fundamental problem is that the manifest inadequacy of the way in which the Tribunal dealt with this important consideration in its Decision Record really shows that, as a matter of substance, the Tribunal failed to engage with the applicant’s claim as it was required to do, and thereby failed, once again, to exercise its jurisdiction.

53    I note the Tribunal’s observation (at [37]) that the applicant “did not pursue with vigour this aspect of his case”. It is difficult to know what the Tribunal meant by this observation. I certainly do not understand the Tribunal to have said that the applicant had abandoned this claim or that he had not raised it genuinely. My own review of the material does not lead me to conclude that his claim is baseless or not genuinely raised. Account must be taken of the fact that the applicant appeared before the Tribunal as a litigant in person. As a matter of advocacy, he may not have pursued this aspect of his case with “vigour” because he thought it unnecessary to do so given that its importance was patently obvious and did not require elaboration, particularly having regard to the dire consequences which, the applicant claimed, might befall him if he were to be returned to the Philippines.

Strength, nature and duration of ties with Australia

54    The applicant submits that he made detailed submissions about the strength, nature and duration of his ties to Australia and that the Tribunal dealt only very briefly with this issue. He submits that the Tribunal did not address the considerations required by Direction 65. Before the Tribunal, the applicant referred to the fact that he has been in Australia almost all his teenage and adult life; that his family is here; and that he has four children in Australia. He relied on a number of supportive letters from his family members. He provided evidence of his attachment to his sisters and their children, and to his parents.

55    The Minister submits that this aspect of the applicant’s application for judicial review is misconceived because, although the Tribunal’s reasons are “concise”, they nevertheless identify the applicant’s ties to Australia. In fact, the Tribunal was satisfied that the applicant’s ties were substantial: see at [41] of the Decision Record. The Minister submits that the Tribunal clearly weighed the genuine and heartfelt evidence from his mother and niece, and the difficulties arising from looking after his father who has suffered a stroke.

Conclusion

56    I am not persuaded that the applicant has made out a ground of judicial review in respect of the Tribunal’s consideration of this part of his case. It is true that the Tribunal’s reasons are brief. However, [41] of the Decision Record should not be read in isolation from other passages in the Tribunal’s reasons, including [4] which sets out certain background facts, such as the facts that the applicant first arrived in Australia when he was 14 years old and that, but for a period of six years and ten months, he has resided in Australia. The Tribunal’s statement at [41] that the applicant has substantial ties to Australia must be read in the context of all its findings on this subject.

57    I accept the Minister’s submission that the Tribunal reached a positive finding in favour of the applicant on this subject and that this was weighed in the balance, even though the strength, nature and duration of the applicant’s ties did not outweigh the other considerations that went to affirming the revocation.

58    I also accept that, in light of the other findings of fact it made in respect of the applicant’s ties to Australia, it was not necessary for the Tribunal to say more than it did at [41] of its Decision Record in order to deal with this aspect of the applicant’s case.

The extent of impediments

59    At [42] of its Decision Record, the Tribunal said that it may be supposed that after a long absence from the Philippines, the applicant will experience difficulties in re-establishing himself. This is plainly a finding about the effect of mere absence from the Philippines as an impediment to the applicant re-establishing himself there, should he be removed from Australia.

60    This may be a relevant consideration. But, the applicant raised other impediments—in particular, his claim that he had suffered from a substance abuse problem with a potential to relapse, and that the Philippines did not have health support systems for people with his condition. He also raised the related, important impediment that his condition would not be treated as a health problem but as a criminal issue, which might subject him to State-sanctioned violence, including extra-judicial execution. The applicant also raised the fact, and put evidence before the Tribunal, that his family and support network were entirely in Australia.

61    The applicant submits that instead of making findings about the extent of the impediments he might face if removed to the Philippines, as Direction 65 requires, the Tribunal simply referred to the fact that it could be supposed that he will experience difficulties in re-establishing himself given his absence from the Philippines. In other words, the Tribunal failed to perform the task that Direction 65 requires of a decision maker when considering the extent of the impediments that the person seeking revocation of the cancellation decision might face.

62    The Minister does not dispute that the applicant raised these impediments before the Tribunal. He submits, however, that the Tribunal made a positive finding in favour of the applicant which carried with it an implicit acceptance of the applicant’s evidence that his family and support network were entirely in Australia. The Minister submits that this finding was enough, and that is was not necessary for the Tribunal to say more than it did.

63    The Minister submits:

… it is evident that on a proper and fair reading of the Tribunal’s reasons that it did give proper consideration to the applicant’s claims. That is particularly so when one bears in mind that all of the matters to which the applicant refers were matters that weigh in favour of the applicant and not against him. The degree of weight to be accorded to those matters, set against the other factors to be considered, was a matter for the Tribunal, going as it did to the proper exercise of the statutory discretion. In essence, the applicant invites the Court to intervene on the basis that the Tribunal provided insufficient reference to particular aspects of the applicant’s submission or evidence about matters that the Tribunal found favourable to the applicant. It is respectfully submitted that framed in that way, it becomes clear that the Tribunal did not fall into error in the manner alleged.

Conclusion

64    I do not accept that, on a proper and fair reading of its reasons, the Tribunal did give consideration to the applicant’s claims. The Tribunal simply did not address the impediments the applicant claimed he would or might suffer by reason of his substance abuse problem if he were required to re-establish himself in the Philippines. The Tribunal was not relieved of this task because of its conclusion that Australia did not owe the applicant non-refoulement obligations. It is also doubtful that, when considering impediments that the applicant would face in re-establishing himself in the Philippines, the Tribunal had regard to the applicant’s claim that his family and support network were entirely in Australia, even though the Tribunal appears to have accepted this fact when considering the applicant’s ties to Australia.

65    It is not enough for the Minister to say that the Tribunal made a finding in the applicant’s favour. The nature and extent of that finding is important. If the Tribunal effectively ignored aspects of the applicant’s claims then this is likely to have had a material effect on the way in which the Tribunal exercised its statutory discretion. Certainly, the Tribunal did not carry out its obligation to comply with Direction 65, which specifically requires the decision maker to 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 …” or, more generally, its obligation under s 501CA(4) to consider whether there was another reason why the original cancellation decision should be revoked. I am satisfied that, in this respect, the Tribunal once again failed to exercise its jurisdiction.

Conclusion and disposition

66    The applicant has established that the Tribunal failed to comply with Direction 65 in material ways and thereby failed to exercise the jurisdiction conferred on it to determine whether there was “another reason” why the decision to cancel the applicant’s visa should be revoked. It follows that the Tribunal’s decision is affected by jurisdictional error and that, as a consequence, the applicant is entitled to the relief he claims. The Minister must pay the applicant’s costs, if any.

67    I wish to acknowledge the considerable assistance provided to the Court by counsel who appeared on behalf of the applicant in response to a certificate issued under r 4.12 of the Federal Court Rules 2011.

Associate:

Dated:    5 July 2019