FEDERAL COURT OF AUSTRALIA

Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 490

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent's costs as agreed or assessed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    Mr Swannick is a British citizen who has lived in Australia since he was 3 years old. From 1994 he held a class BF transitional (permanent) visa. In June 2017, when Mr Swannick was aged 47, his visa was cancelled by a delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth).

2    At the time his visa was cancelled, Mr Swannick was serving a term of imprisonment for (in summary) seven charges of unlawful and indecent assault and for one charge of sexually based offending against a child. He did not pass the character test under s 501(6) because he has a substantial criminal record (s 501(7)) and has been convicted of one or more sexually based offences involving a child (s 501(6)(e)).

3    The delegate was therefore required to cancel the visa under s 501(3A) of the Migration Act.

4    Mr Swannick was informed of the cancellation of his visa on 23 June 2017 and was advised of the process by which he may seek to have the decision revoked by the Minister under s 501CA of the Migration Act. He was provided with a copy of Direction 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which was issued by the Minister under s 499. Mr Swannick was invited to make representations and address each paragraph in Part C of that Direction. Mr Swannick was informed that if the Minister makes a revocation decision personally he is not bound by the Direction, but that it provides a broad indication of the types of issues the Minister was likely to take into account.

5    Mr Swannick requested that the Minister revoke the mandatory cancellation of his visa. He completed the Request Form and Personal Circumstances Form provided by the Department. His lawyers also provided a written submission dated 22 December 2017 addressing the relevant clauses of Direction 65 (Submission).

6    On 28 May 2018 Mr Swannick was released on parole but was transferred to immigration detention on the same day.

7    On 9 October 2019 the Minister made a decision not to exercise his power to revoke the original decision under s 501CA(4). The Minister found that the applicant failed the character test and he was not satisfied that there was another reason to revoke the cancellation.

8    The applicant now seeks judicial review of the Minister's decision in this Court.

9    It was not in issue that Mr Swannick did not pass the character test.

Representations made by the applicant

10    In issue in this application are the applicant's fears as to a decline in his mental health condition and his potential homelessness should he be returned to the United Kingdom, and whether they were properly considered by the Minister.

11    In the 'Impediments to Return' section of his Personal Circumstances Form, Mr Swannick refers to having depression and anxiety and lists two medications, and says he is being treated at the prison. He states that he fears returning to a country he knows nothing about and that when he was first imprisoned he self-harmed. He states that he fears his anxiety will increase. He states he has given up all substance abuse.

12    In the Submission, Mr Swannick's lawyers referred to documents and statements before the Minister and relevantly said the following:

14.5 Extent of impediments if removed

Age and health

154.    Mr Swannick has lived 44 of his 47 years in Australia and continues to take medication to manage his depression and anxiety.

155.    His Offender Notes (Annexure 'K') note numerous occasions where Mr Swannick presented with anxiety issues or his family members voiced concerns about his wellbeing. In Mr Swannick's prison medical information (Annexure 'E'), Ms Rhonda ARNDT, CN at Karnet Prison Farm, confirms that:

[Mr Swannick] has a history of depression and anxiety issues. He has been in prison since 2016. Initially he had very poor coping skills and did not deal with change or stress effectively. He has a history of self-harming in these situations.

He has slowly progress[ed] with ongoing input from the Prison Counselling Service and the Mental Health Team.

He has achieved significant improvements in his mood regulation and decreasing his anxiety levels through counselling and medications. He…also benefits from the structured and supportive environment he is currently living in.

156.    This document also shows that as of June 2017, Mr Swannick's usual medications included Fluoxetine (an antidepressant, also known as Prozac), Propranolol (for his heart condition), Atorvastatin (for cholesterol) and Paracetamol and Ibuprofen (painkillers).

Other difficulties

157.    Mr Swannick has spent his entire adolescent and adult life in Australia. All his social, employment, educational and family ties are in Australia. He has no real knowledge of life in the UK and would face considerable hardship in re-establishing himself at age 47, without the support of [his] family or any other connections. He stated in his revocation request that he fears returning to England as:

[I] know nothing about England. I never been out of Perth. With my depression quite bad when I first came to prison I tried to hurt myself…I know no one in England, I have no family that I know. My anxiety would increase.

158.    He rightly fears an inability to financially support himself, homelessness and a serious decline in his mental health if he is removed from Australia and the avenues of support he has here. His mother states:

I would be scared stiff about what would happen to Stephen if he was deported. I know that if he is deported we will never see him again. We have no money to go to England.

159.    His sister Sara states:

If he gets sent back to England he will have no one over there to help him (he knows no one). He won't have his parents, mother and father, his sister (myself) so how do you expect him to survive without the help from his family … If you send him back he won't see his children grow up. He will lose everything…if he does go back, where's he gonna live? What about a job? Money? What's he supposed to do with no money…We are his family and he needs to stay here with us where he can receive the support and love he needs to get on with his life.

160.    Mr Swannick states:

I have lived in Western Australia, Perth all my life. I have never been out of the State. All my family live in Western Australia, Perth…I am scared that I might have to sell my house and all my stuff that was the Australian dream to own.

My parents are getting older now they're in their late 75 to 77 year old I would like to be around when their time is up.

My three daughters are my heart and soul and I would like to see them growing up to be young ladies.

161.    It is reasonable to expect that given the length of time Mr Swannick has spent in Australia, his age and the fact that he has not travelled outside the country since he arrived in 1974 he will have serious and substantial difficulties assimilating to a new country. This should be a clear factor weighing in favour of revocation of his visa cancellation.

…

166.    These cases [VWLL and Minister for Immigration and Citizenship [2012] AATA 858; DSR and Minister for Immigration and Citizenship [2013] AATA 341; and Drollet and Minister for Immigration and Citizenship [2010] AATA 854] all demonstrate a common characteristic with that of [Mr] Swannick - the substantial ties the applicants have made with Australia due to the length of time they have spent in the country and the subsequent hardship that the applicants would face upon returning to their countries of birth.

167.    The fact that Mr Swannick has spent 44 of his 47 years of life in Australia plus the significant hardship he would face upon removal should weigh strongly in favour of revocation of his visa cancellation.

13    It is also apparent that the Minister had before him considerable documentation including prison program participation records, letters from the prison clinical nurse and Holyoake (drug treatment centre), parole information and letters of support from family members, friends and Mr Swannick's long term employer.

14    The reference in the Personal Circumstances Form and Submission to impediments to return or removal corresponds to cl 14(1)(e) of Direction 65:

14.    Other considerations - revocation requests

(1)    In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a)    International non-refoulement obligations;

b)    Strength, nature and duration of ties;

c)    Impact on Australian business interests;

d)    Impact on victims;

e)    Extent of impediments if removed.

15    Clause 14.5 of Direction 65 provides as follows:

14.5    Extent of impediments if removed

(1)    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a)    The non-citizen's age and health;

   b)    Whether there are substantial language or cultural barriers; and

c)    Any social, medical and/or economic support available to them in that country.

16    By the time of the Minister's decision, he had issued a new Direction under s 499, being Direction 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. Clause 14(1) and cl 14.5 of Direction 79 are in identical terms to those clauses in Direction 65.

17    Whilst the Minister was not bound by Direction 65 or Direction 79, it is apparent from the structure of his reasons that he had regard to matters raised in those Directions, including by cl 14.5.

The Minister's decision

18    The Minister first confirmed that he was not satisfied that Mr Swannick passed the character test and so turned to consider whether there was any other reason why the visa cancellation decision should be revoked.

19    The Minister considered the interests of Mr Swannick's three minor children and accepted that it may be in their interests that the decision be revoked.

20    In assessing the expectations of the Australian community, the Minister took into account the length of time Mr Swannick has lived in Australia; that he has abstained from drug use for some time; that he has spent long periods of time in the community without offending; and that he has undertaken prison courses to deal with his sex offending and addiction issues. However, the Minister concluded that in light of his offending the Australian community would expect that Mr Swannick should not hold a visa.

21    In considering the strength, duration and nature of Mr Swannick's ties to Australia, the Minister had regard to the fact that Mr Swannick has lived in Australia for some 45 years and that his entire network of friends and family is in Australia. The Minister said that he took into account his good employment record over many years and his standing offer of re-employment from his former employer, who considered Mr Swannick as ranking in the top five per cent of staff he has employed over the course of 30 years in business. The Minister took into account that Mr Swannick has made a positive contribution to the community by way of his employment, and that he has worked all his life, including as a mechanic's assistant, tyre fitter and exhaust fitter.

22    The Minister also referred to Mr Swannick's close relationship with his parents and the ongoing support he has provided to them, particularly having regard to their ill-health. The Minister noted his mother's statement that if her son were returned to the United Kingdom it will be 'like he has died'.

23    The Minister stated that he had considered the effect of non-revocation upon Mr Swannick's parents, family members and close acquaintances and accepted that those persons would experience emotional, practical and financial hardship if Mr Swannick were returned to the United Kingdom.

24    The Minister then considered the extent of impediments to Mr Swannick if he were removed, stating as follows:

Extent of impediments if removed

53.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr Swannick will face if removed from Australia to the United Kingdom in establishing himself and maintaining basic living standards.

54.    Notwithstanding that Mr Swannick has resided in Australia for some 44 years, given the common language and social similarities, I find that he is unlikely to experience substantial language or cultural barriers if he returns to the United Kingdom.

55.    I have considered information provided by the Mental Health Team at Karnet Prison Farm dated 30 June 2017 which states Mr Swannick has the following health concerns: hypercholesterolemia, self-harm, amphetamine abuse, chronic alcohol use, depression, marijuana abuse and he has previously suffered episodes of drug-induced psychosis.

56.    I have also considered that Mr Swannick has seen a radiologist in relation to reduced sexual function and shrunken testes.

57.    I have considered the submission from Mr Swannick's father that he is very concerned for his son's mental health, both now while he is in detention and if his son were to return to the United Kingdom. I am also aware of a submission from Mr Swannick's mother that she fears her son will end up in a mental institution or kill himself if he is removed.

58.    I have also considered Mr Swannick's concerns about his mental health as he has spent many years addressing his depression and anxiety.

59.    I have considered the submission Mr Swannick received counselling and takes medication for depression and anxiety. I have also noted the representation that when Mr Swannick first arrived in prison he had poor coping skills and did not deal with change or stress effectively. Further, I have considered submissions that Mr Swannick also has a history of self-harm. I have also considered the representation that he has achieved significant improvements in his mood regulation and anxiety management through counselling and medication. I acknowledge Mr Swannick's usual medications include Fluoxetine (an anti-depressant), Propranolol (for his heart condition), Atorvastatin (for cholesterol) and the painkillers paracetamol and Ibuprofen.

60.    I have considered information from International Health and Medical Services dated 8 August 2018 that Mr Swannick has adjustment disorder with anxious mood (disorder). I have also considered Mr Swannick self reports that he has been feeling down, depressed and anxious. Mr Swannick submits that he is not experiencing suicidal thoughts, and is currently anxious regarding his immigration situation and has sought medication and counselling.

61.    I have considered Mr Swannick's statement that he is very scared of returning to the United Kingdom. I accept that Mr Swannick has spent his entire adolescent and adult life in Australia and that all of his social, employment, educational and meaningful family ties are in Australia. I have considered representations that Mr Swannick has no real knowledge of life in the United Kingdom, and at the age of 47, would face considerable hardship re-establishing himself without family support or other connections. I have considered representations that Mr Swannick fears homelessness and a serious decline in his mental health if he is removed from Australia and that while Mr Swannick may have relatives in the United Kingdom, he needs to remain in Australia where he can receive love and support from his family.

62.    I have considered a Self Management Plan from Mr Swannick received on 19 June 2018 and I note Mr Swannick's submission that he has turned his mind to the prospect of starting a new life in the United Kingdom and has listed a number of matters he would need to address including obtaining a bank account and drivers licence, and finding a way to contact his friends and family. I have considered Mr Swannick's submission that he considers a return to the United Kingdom to be overwhelming and he is unsure where to start as he has not been to the United Kingdom in 45 years.

63.    I have also considered the submission that given the length of time he has lived in Australia, his age and the fact he has never left Australia, Mr Swannick will have serious and substantial difficulties assimilating to a new country.

64.    I accept that Mr Swannick would experience significant hardship in returning to the United Kingdom. I find that the impact of these impediments would lessen over time as Mr Swannick would have access to welfare and support services similar to other citizens of the United Kingdom in his position.

25    The Minister then turned to the consideration of protecting the Australian community, and it is clear that it was the consideration of this issue that led to the Minister declining to revoke the visa cancellation decision. In this context it should be noted that Mr Swannick pleaded guilty to six counts of unlawful and indecent assaults, one count of aggravated unlawful and indecent assault and one count of having a sexual relationship with a child under the age of 16 years. He was sentenced to a head sentence of 3 years and 6 months imprisonment for the child sexual offending, with all other sentences concurrent, save for a 6-month cumulative sentence for one of the unlawful and indecent assaults. Mr Swannick also has several convictions for relatively minor offences, including stealing, driving offences and drug offences.

26    In particular, the Minister noted the serious nature of Mr Swannick's offending, his history of drug use, and the sentencing judge's observations that touched on his mental health:

93.    I have considered comments from the Judge in sentencing, who noted Mr Swannick had 'no particular difficulties in [his] background apart from a degree of bullying at school and difficulties with learning'. I note the Judge observed Mr Swannick was a socially anxious and awkward adult and also struggled with mental health in the past, notably depression during relationship breakdowns and during stressful periods in his relationships.

94.    I have also considered the Judge's observations Mr Swannick suffers from chronic tension, anxiety and depressive symptoms and that Mr Swannick has not sought medication to cope with depression, but has chronically used drugs instead.

27    The Minister acknowledged Mr Swannick's statements that he did not blame his offending on drug use alone and that he took responsibility for his actions. The Minister acknowledged the programs undertaken by Mr Swannick in prison and that representations on Mr Swannick's behalf were to the effect that such programs had equipped Mr Swannick with self-awareness strategies for dealing with drug use upon his return to the community.

28    The Minister also noted the following matters relevant to Mr Swannick's mental health:

106.    In relation to his mental health, I accept representations from Ms Rhonda Arndt, a clinical nurse at Karnet Prison Farm who states Mr Swannick has made slow progress with ongoing input from the Prison Counselling Service and the Mental Health Team. I also acknowledge Ms Arndt's comment that Mr Swannick also benefits from the structure and supportive environment offered by a custodial setting.

…

109.    I accept Mr Swannick has made progress in addressing the drug addiction and mental health concerns which have contributed to his offending. However, I note these gains have largely been made while Mr Swannick is supported by the structure and support offered by a custodial setting and that Mr Swannick's period on bail prior to his incarceration represents only a brief period where his rehabilitation was tested in the community.

29    The Minister also considered Mr Swannick's self-management plan and Mr Swannick's submissions that he had learned much from the sex offender program that he had completed, and that he intended to seek help from his doctor and to pursue rehabilitation and counselling upon his release:

129.    … he has learned he needs to get as much help as he can after he is released and intends to pursue rehabilitation and counselling.

30    The Minister said he took into account that Mr Swannick had been granted parole.

31    The Minister concluded his assessment of risk to the Australian community by stating:

151.    I have considered that the sentencing Judge noted Mr Swannick was assessed as a low to moderate risk of re-offending. I find that Mr Swannick ceasing to use drugs and alcohol, addressing his mental health and protective factors such as employment and support from medical professionals, family and friends will assist him from abstaining from future offending. However, I note with concern Mr Swannick's poorly-developed insight into his offending as demonstrated by his repeated denials he committed offences and his preparedness to blame his offending on drug and alcohol use. Mr Swannick's offending comprises a regular pattern of behaviour over many years involving multiple vulnerable victims, including [redacted].

32    The Minister then concluded his consideration of the revocation request by stating:

159.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr Swannick. Crimes that are of a sexual nature, and involved vulnerable members of the community, that being minor children.

160.    Further, I find that the Australian community could be exposed to significant harm should Mr Swannick re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr Swannick.

161.    I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr Swannick, than I otherwise would, because he has lived in Australia from a very young age.

162.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr Swannick represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence, employment and familial ties to Australia, and the hardship Mr Swannick, his family and social networks will endure in the event the original decision is not revoked.

163.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision under s 501(3A) to cancel Mr Swannick's visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr Swannick's Class BF transitional (permanent) visa remains cancelled.

Ground of review before this court

33    The one ground of review in this matter is as follows:

1.    The Respondent denied the Applicant procedural fairness and constructively failed to exercise his jurisdiction by failing to give proper, genuine and realistic consideration to a representation made by the Applicant.

Particulars

a.    Section 501G(1)(e) of the Act required the respondent to provide reasons for his decision not to revoke the decision to cancel the applicant's visa.

b.    The respondent was obliged to afford the applicant procedural fairness.

c.    The applicant made representations that if he were deported to the United Kingdom that his mental health would be seriously adversely affected and that he would be homeless: [cross-referenced to Personal Circumstances Form and Submission paragraphs 154-156].

d.    This representation was critical to the applicant's case put to the respondent for revocation of the decision to cancel the applicant's visa.

e.    The Minister considered the applicant's submission about his return to the United Kingdom and characterised it as being a submission in which the Applicant said that the return would be 'overwhelming': [reasons [62]]. Further, the respondent accepted that the applicant 'would experience significant hardship in returning to the United Kingdom' but that the 'impact of these impediments would lessen over time as [the Applicant] would have access to welfare and support services similar to other citizens of the United Kingdom in his position.': [reasons [63]-[64]].

f.    The respondent did not make any finding or refer to the mental health issues and specific issue of homelessness that had been raised by the applicant in relation to his being returned to the United Kingdom.

g.    It can be inferred from the respondent's failure to make a finding, or to refer to the deterioration in mental health and homeless that the applicant feared would occur if he were returned to the United Kingdom that the respondent failed to give proper, genuine or realistic consideration to the Applicant's representation.

Principles

34    As noted, the applicant's visa was cancelled under s 501(3A). The applicant made representations in favour of revocation in response to an invitation under s 501CA(3) of the Migration Act. The Minister was then obliged under s 501CA(4) to consider whether there was a reason why the original decision should be revoked: Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [21] (Besanko, Barker and Bromwich JJ). Representations as a whole constitute a mandatory relevant consideration: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [22]-[24] (Rangiah J).

35    It was clear from the submissions made on Mr Swannick's behalf that the overarching complaint that founds the application is the contention that the Minister was obliged to give 'proper, genuine and realistic' consideration to Mr Swannick's representations about impediments he will face on his return to the United Kingdom, and the Minister failed to do so and so failed to carry out his statutory task.

36    The content of the Minister's obligation to consider representations made by an applicant has been the subject of a number of decisions that have emphasised the requirement of the Minister to consider whether he is satisfied that there is another reason to revoke the original decision to cancel a visa, and have emphasised the qualitative nature of the assessment: see, in particular, Buadromo at [41]; and Viane at [75] (Colvin J).

37    The Full Court in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (Rares and Robertson JJ) addressed the qualitative nature of the Minister's task as follows:

[45]    What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put: compare Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] per Perram J. Additional adjectives do not assist that analysis and indeed tend to distract from it by being 'apt to encourage a slide into impermissible merit review': Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] citing Swift v SAS Trustee Corporation [2010] NSWCA 182; 6 ASTLR 339 at [45]. Because the Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. Neither does the Court ignore such a statement.

38    However, it is not necessary for a decision-maker to make a finding of fact with respect to every claim made or issue raised by an applicant. A finding of fact may not be required if the claim or issue is irrelevant, or if it is subsumed within a claim of greater generality: Buadromo at [46].

39    The Full Court in Navoto v Minister for Home Affairs [2019] FCAFC 135 (Middleton, Moshinsky and Anderson JJ) said the following:

[89]    Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall 'on the wrong side of the line', to quote Lafu at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons. What is required by a court upon judicial review is a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations made: Maioha at [45] per Rares and Robertson JJ.

40    As to other principles that are also relevant in a case such as this, the Full Court in Navoto said:

[98]    These passages illustrate three principles which also resonate in this case. First, in conducting judicial review of the reasons of a decision-maker, the court upon judicial review must retain an abiding appreciation of the ultimate statutory task that was faced by the decision-maker. Under s 501CA(4)(b)(ii), the issue for the decision-maker is whether he or she is satisfied that there was another reason why the original decision to cancel the visa should be revoked. Particular aspects of the reasons of the decision-maker must be viewed through that prism.

[99]    Second, and relatedly, the reasons of the decision-maker must be interpreted practically and with common sense, guided by the acknowledgment of the nature and context of administrative decision-making. Thus, in the words of the oft quoted injunction, '[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error': Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280 at 287 per Neaves, French and Cooper JJ, quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 66; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; see also Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] per French CJ, Bell, Keane and Gordon JJ.

[100]    Third, the reasons of the decision-maker must be construed consistently with a recognition of the minimal inquisitorial duties imposed on the decision-maker. The Minister is of course required to invite a person to make representations about the cancellation of his or her visa. But beyond that, a decision-maker, in the words of Rares and Robertson JJ in Maioha, has 'no legal duty, referable to jurisdictional error, to ask for further representations … or to make inquiries into the representations'. As explained by Flick J in Maioha, the significance and characterisation of a representation is primarily within the control of the representor.

41    The task undertaken by the Minister in this case is to be addressed against the backdrop of these authorities.

Consideration

42    In this case, the applicant repeated his concerns about the risk of his declining mental health if he were removed to the United Kingdom in his Personal Circumstances Form and the Submission: at [11]-[12] above. As to feared homelessness, such a claim was made in the Submission: at [12] above.

43    It is apparent that the Minister had regard to the Personal Circumstances Form and the Submission. The Minister has incorporated reference to them in his reasons and so they can be taken to form part of the reasoning process: Maioha at [64]. The question is whether the particular matters were given proper evaluative consideration within the principles discussed above.

Submissions of the parties

44    On behalf of Mr Swannick, it was submitted on this application that it was clear from the Submission that Mr Swannick fears homelessness and a serious decline in mental health if he is returned to the United Kingdom, but that there was only a formulaic response in [64] of the Minister's reasons that did not explicitly deal with those representations. It was submitted that the reasons neither reflected on the human consequences involved nor grappled with the issue of mental health or homelessness. It was said that there needed to be active intellectual consideration as to what services would be available in the United Kingdom in relation to homelessness and Mr Swannick's mental health issues. It was submitted that the position was analogous to that in McCutcheon v Minister for Immigration and Border Protections [2018] FCA 828 (Kerr J) where it was held that a representation as to future homelessness was not properly addressed, resulting in jurisdictional error.

45    Counsel for the Minister, on the other hand, accepted that there were representations made about Mr Swannick's mental health and the prospect of homelessness but submitted that when the reasons are considered fairly and as a whole, it can be seen that the Minister did consider those matters and accepted that Mr Swannick would face significant hardship. Such hardship included matters relating to mental health and homelessness. It was submitted that in the context of the reasons of the Minister (particularly as expressed in [53]-[64] and [162] of those reasons), proper intellectual engagement is revealed.

Other cases

46    As indicated by Mr Swannick's reference to McCutcheon, the question as to whether the decision-maker has had proper regard to representations about matters such as mental health issues and feared homelessness as impediments on return to a country of citizenship has been the subject of a number of cases. Each case is factually different, and little can be gained by a comparison of the underlying facts and the different expressions of reasons of the decision-maker. However, the cases reinforce the importance of reviewing the reasons as a whole and not compartmentalised by regard to the particular topics of Direction 65 or 70 (as the case may be); the importance of examining the submissions to ascertain the manner in which the representation was made to the decision-maker; and the importance of examining whether the reasons appropriately correspond with the character of the representation made by, or on behalf of, the applicant such as to evidence the requisite intellectual consideration by the Minister.

47    In Pennie v Minister for Home Affairs [2019] FCA 489 (Banks-Smith J) (Pennie (PJ)), as affirmed by the Full Court in Pennie v Minister for Home Affairs [2019] FCAFC 129 (Davies, Derrington and Colvin JJ) (Pennie (FC)), Mr Pennie argued, amongst other things, that the Minister had failed to give proper, genuine and realistic consideration to the applicant's representation that he would experience homelessness and lack of medical care if he were removed to Ireland. Mr Pennie relevantly contended that the Minister did no more than make a general finding as to services that might be available to him upon his return to Ireland. The Minister accepted that he may experience significant difficulties and practical hardships upon return to Ireland but was of the view that Mr Pennie would have a level of access to healthcare, social welfare and housing comparable to that which is available in Australia and that, as an Irish citizen, Mr Pennie will have a level of access to healthcare, social welfare and housing support that is similar to other citizens of Ireland: Pennie (FC) at [12].

48    It should be noted that Mr Pennie's representations expressly outlined his need for the support of medical professionals and that he would have difficulty organising the specialist medical support he needs: Pennie (PJ) at [10]. Mr Pennie stated that medical services may be unavailable to him in Ireland, although there was no evidence to support that statement: Pennie (PJ) at [66].

49    The Full Court explained:

[14]    … it was for Mr Pennie to put before the Minister what he wanted the Minister to take into account and it was not for the Minister to undertake his own research or investigate for himself the likelihood or otherwise of Mr Pennie finding housing in Ireland, or obtaining social welfare or adequate health care. The Minister had no legal duty to make such inquiries for himself nor to make findings of fact as to whether Mr Pennie would be entitled to social and housing welfare if removed to Ireland: Maioha at [41]-[46] (Rares and Robertson JJ). His legal duty was to address the representations made and to take them into account in considering whether to revoke the cancellation decision. A fair reading of the Minister's reasons discloses that he both considered and weighed up the matters put to him by Mr Pennie.

50    In Navoto it was contended that the Assistant Minister erred by, amongst other things, finding that appropriate treatment for the appellant's depression and anxiety was likely to be available in Fiji in circumstances where it was said there was no evidence to that effect. It was held by the Full Court, in upholding the decision of the primary judge, that:

[72]    Importantly for the determination of this ground of appeal, the majority of references to depression and anxiety in the representations made by, or on behalf of, the appellant were expressed only in the context of factors contributing to his past offending or otherwise as background to him seeking counselling. These references are found in the appellant's undated submission in advance of the first revocation decision (see [26] above), VLA's submissions on behalf of the appellant dated 6 February 2015 (see [28]-[30] above), the appellant's personal circumstances form dated 5 April 2017 (see [15] above) and the appellant's email dated 8 January 2018 (see [23] above). However, none of these references characterise the existence of the appellant's depression and anxiety, nor the availability of appropriate treatment and medication for such conditions, as impediments that the appellant would experience if removed to Fiji.

51    The Full Court held that, for a number of reasons, it was apparent that the Assistant Minister's finding was not critical to the ultimate decision in that case. One reason was the lack of emphasis placed on the availability of appropriate treatment and medication in Fiji in the representations made to the Assistant Minister as a matter constituting an impediment to the appellant if he was removed to Fiji (at [69]). By contrast, Mr Swannick clearly made representations as to his feared mental decline in the context of impediments if he is removed to the United Kingdom.

52    In Maioha, Ms Maioha said in her submissions that she would have 'nowhere to live' in New Zealand. The Assistant Minister in that case expressed the following in his reasons:

45.    Ms MAIOHA states that she is fearful that she will suffer hardship if returned to New Zealand due to leaving her parents, sister and six children behind. She states that her children are her life. She also states that she would have nowhere to live and no money.

…

47.    I note that Ms MAIOHA submits that she has no close family in New Zealand. I accept that Ms MAIOHA has an ‘estranged' brother who would not be able to assist her due to his own circumstances and who plans to return to Australia in December 2017.

48.    I find that Ms MAIOHA will experience significant emotional hardship, due to leaving her children behind in Australia. Furthermore, she will undergo a period of adjustment due to her absence from New Zealand of over 28 years, as well as the practical changes to her life, such as accommodation and other familial and social networks.

49.    I find such hardships will not be insurmountable in light of New Zealand's similar culture, language and health system standards.

53    In those circumstances, the Full Court in Maioha held that the Assistant Minister had given appropriate consideration to the matters raised by Ms Maioha: Maioha at [40], [46] (Rares and Robertson JJ), [70] (Flick J). As Flick J described the position, it would be inappropriate to read the reference to 'such hardships' (in [49] of the Assistant Minister's reasons) as excluding Ms Maioha's claim to have 'nowhere to live and no money': at [70].

54    In McCutcheon, the visa holder made representations to the effect that he would be homeless and have no support if returned to the United Kingdom. The Minister made no finding as to whether the applicant would experience hardship as a result of homelessness but made a general statement to the effect that he expected any initial hardship upon return would ease over time as Mr McCutcheon would have equal access to health care, education, social welfare and housing support as other United Kingdom citizens. In finding that there was jurisdictional error, the primary judge placed considerable weight on the lack of any particular finding that Mr McCutcheon would be homeless if he were returned to the United Kingdom or any finding that homelessness was a problem in the United Kingdom.

55    I note that the applicant in McCutcheon relied on alleged similarities with the first instance decision in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592. That decision was overturned on appeal, with reasons published after the reasons in McCutcheon. Further, the reasons in McCutcheon were published prior to the Full Court decision in Maioha which explained the limitations on the obligation of a decision-maker to make inquiries into representations that were made (as cited in Navoto: see [40] above).

56    I have referred to McCutcheon primarily because the applicant relied on it by way of analogy. The Minister submits there is a distinguishing feature, being that in this case, the Minister at [64] of his reasons expressly accepts that Mr Swannick will face hardship and, in context, such hardship must be taken to include potential homelessness and the effect on his mental health.

This case

57    Turning to this case, whilst one can sympathise with Mr Swannick insofar as it is readily apparent that he faces very real difficulties in relocating to a country where he knows no-one and where he has no existing support structures in place, I have concluded that the ground of review relied upon by Mr Swannick is not made out.

58    It is important to bear in mind the nature of the representations as to his mental health and feared homelessness. Mr Swannick did not submit that he would not be entitled to or able to obtain any support in the United Kingdom for his mental health issues or would not be entitled to or able to receive his medication. Similarly, Mr Swannick did not submit that he would not be able to obtain any assistance with respect to homelessness in the United Kingdom. Certainly fears about the effect on his mental health of his return and potential homelessness formed part of his representations, but the absence of any access to mental health support or housing support in the United Kingdom was not clearly put as any part of his case.

59    It is clear, when the reasons are read as a whole, that the Minister was aware of concerns about Mr Swannick's mental health.

60    The Minister considered a range of sources of information about Mr Swannick's mental health. He had regard to information from the Mental Health Team at the relevant prison (at [55]). He had regard to the opinions expressed by Mr Swannick's parents (at [57]-[58]). He had regard to Mr Swannick's own expressed concerns (at [58]).

61    The Minister also had regard to the manner in which Mr Swannick says he has dealt with his mental health concerns, including with counselling and medication (at [58]-[59]). The Minister set out the actual medication used by Mr Swannick, noting that one is an anti-depressant (at [59]).

62    The Minister recorded that Mr Swannick had taken steps to seek medication and counselling (at [59]-[60]), and recorded Mr Swannick's submissions that he feels overwhelmed by what would lie ahead (at [62]).

63    Of the section in the reasons dealing with impediments upon return, at least half of the paragraphs refer to Mr Swannick's mental health.

64    Separately in the reasons, the Minister also records information about Mr Swannick's mental health issues: for example at [93]-[94] and [106]; and at [109] where the Minister accepted that Mr Swannick had made some progress with dealing with such issues.

65    As to feared homelessness, the Minister accepts in his reasons that all of Mr Swannick's social, employment, educational and meaningful ties are in Australia. It is implicit that the Minister is aware there are no such ties in the United Kingdom. The Minister refers to a lack of family support and other connections (at [61]). The Minister expressly refers to the statement (included in the Submission) that Mr Swannick fears homelessness (at [61]). It is also relevant that when considering the extent of impediments, the Minister also accepted that there are common language and social similarities between Australia and the United Kingdom (at [54]).

66    The parts of the reasons (from [53]) that record the Minister's consideration of the representations as to a feared decline in mental health and feared homelessness immediately precede the Minister's finding at [64] that 'I accept that Mr Swannick would experience significant hardship in returning to the United Kingdom'.

67    The reference to 'significant hardship' must in context be taken to include Mr Swannick's mental health issues and potential homelessness, just as such hardship must be taken to include the 'serious and substantial difficulties' that Mr Swannick faces in assimilating to a new country (referred to at [63]). On a proper reading of [64], all such issues are recognised as impediments that will lead to significant hardship.

68    The finding by the Minister that Mr Swannick will experience 'significant hardship', following reasons that expressly refer to the issue of mental health and homelessness, to my mind reflects more than a mere recitation of Mr Swannick's claims (and the Minister's finding in this case is an important distinction from the reasons the subject of McCutcheon).

69    The finding (at [64]) that the impact of the impediments would lessen over time as Mr Swannick would have access to welfare and support services in the United Kingdom must also be viewed in the context that the impediments are those just addressed, including issues relating to mental health and homelessness. Therefore, in this case, the reference to 'welfare and support services' must be taken to refer broadly to social services including health and housing services that are available to citizens of the United Kingdom. This approach is also consistent with the principle that the reasons of the decision-maker are to be interpreted practically and not minutely: Navoto at [99]; and Maioha at [70].

70    There is no doubt that the Minister's conclusion at [64] is concise. Others may have expressed it differently. However, it is not sound to dismiss a finding as formulaic simply because a similar or identical expression is used in other decisions. It remains necessary to direct attention to the particular context in which the expression is used, including the nature of the reasons that precede it and the nature of the representations in fact made.

71    I have already addressed the basis upon which the representations were made (see [58] above). Relevantly, there was no material put forward by Mr Swannick as to circumstances that might deny him or impact his access to mental health services, medication or housing support in the United Kingdom. In any event, and contrary to the submission made on Mr Swannick's behalf, it was not for the Minister to ask for further representations or make inquiries about the representations or ascertain whether or not Mr Swannick would (for example) in fact be homeless or would in fact have no access to medical care or counselling: Navoto at [100]; Maioha at [48], [70]; and Pennie (FC) at [14].

72    Ultimately, as recognised in Navoto (at [89]), the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression. In this case, having regard to the limited nature of the representations that were made, the careful recording of the various evidence and submissions as to Mr Swannick's mental health issues and fears of homelessness in the 'impediments' section of the reasons immediately preceding the Minister's finding at [64], and the qualitative finding that the various impediments would in fact lead to Mr Swannick experiencing significant hardship, persuade me that the Minister as a matter of substance had regard to the representations.

73    The Minister identified the hardships that Mr Swannick might face. Read practically, the reasons indicate that the Minister included mental health issues and potential homelessness within his findings as to significant hardship. The Minister then directed his attention to whether such significant hardship comprised another reason why the original decision to cancel Mr Swannick's visa should be revoked (at [157]-[162] of his reasons). The Minister undertook a balancing task of the relevant matters, but concluded that, having given significant weight to the nature of the crimes committed by Mr Swannick and having concluded that Mr Swannick represents an unacceptable risk to the Australian community, the protection of the Australian community outweighed all other factors, including the hardship that Mr Swannick will endure as a result. Again, 'hardship' in the context of the finding at [64] must be taken to include hardship by way of the effect on Mr Swannick's mental health and the possibility of homelessness.

74    The Minister concluded that he was not satisfied that there was another reason to revoke the visa cancellation decision and, for the reasons given, I do not consider the Minister committed error in reaching that state of satisfaction. The Minister substantively considered Mr Swannick's claims in respect of mental health and homelessness.

75    It follows that the application is to be dismissed. The parties agreed that costs should follow the event.

76    The Court records its gratitude to Mr Barns of counsel and also to Mr Glenister of Cathal Smith Legal for the provision of pro bono services to Mr Swannick.

Associate:

Dated:    17 April 2020