FEDERAL COURT OF AUSTRALIA

MQGT v Minister for Home Affairs [2020] FCA 520

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application filed by leave on 4 October 2019 is dismissed.

2.    The applicant is to pay the first respondent’s costs of this application to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    This matter began as an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) made 14 May 2019. Because s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) prevents such an appeal and because the Federal Court has original jurisdiction under s 476A(1)(b) of the Migration Act 1958 (Cth) (the Act) to deal with the matters the applicant wishes to agitate, the Minister (the first respondent) consented to orders reconstituting the proceeding as an application under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of the Tribunal’s decision.

2    In its decision, the Tribunal affirmed a decision of a delegate of the Minister made on 18 February 2019 refusing to exercise the power under s 501CA(4) of the Act to revoke the mandatory cancellation of the applicant’s visa under s 501(3A) of the Act.

BACKGROUND

3    The applicant is a citizen of Sudan. He is presently 22 years of age. In April 2007, at the age of nine, he came to Australia with his mother and siblings on a Global Special Humanitarian (Class XB, Subclass 202) visa.

4    From approximately 2015, when he was 17 years of age, the applicant began to acquire a lengthy criminal history. Over the following three years, he committed approximately 26 offences which, in their totality were, according to the Tribunal’s decision, “very serious” in nature.

5    Because the applicant was taken to be a person who had a “substantial criminal record” under s 501(6) of the Act, and he was therefore taken to be a person who did not pass the character test as defined in s 501(7) of the Act, his visa was subject to mandatory cancellation under s 501(3A) of the Act on 8 June 2018. The applicant has remained in detention since about that time.

6    On 14 June 2018, the applicant made representations to the Minister to have his mandatory visa cancellation revoked under s 501CA(4) of the Act. On 18 February 2019, a delegate of the Minister (the delegate) refused to exercise that power.

7    On 21 February 2019, the applicant sought a merits review of the delegate’s decision in the Tribunal under s 500(1) of the Act. As is already mentioned above, on 14 May 2019, the Tribunal affirmed the delegate’s decision.

8    It is not in issue in this proceeding that the applicant fails to meet the character test as defined in the Act. His application is therefore focused on the “another reason” provisions of s 501CA(4)(b)(ii) as follows:

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

…

(b)    the Minister is satisfied:

…

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

THE APPLICANT’S REPRESENTATIONs

9    The parts of the materials the applicant submitted to the delegate in his revocation application where he claims to have advanced the two groups of representations identified in his ground of review were as follows:

(a)    With respect to being a refugee, the refugee camp and having no family in Sudan:

… also i come here to live a better life, i want to live the way life should be. i was in refugee camp for almost six years. i got no family back home all my family are in Australia. They are all i have gotten. i lost my father during the war. please give me a chance to live a better life. …

… That I would be Killed and Homeless if I go back to Africa and have no one back In Africa.

I don’t have any family member back home. I grow up in Refugee Camp. …

(Errors in original)

(b)    With respect to his mother’s illness and need for care:

… I got a family to look after here. my mum she’s 60 year old. She is very sick i don’t know how much time she has got. i want to be there for her …

… no one there to look after my sick mother and support her because my oldest brother and sister don’t live with me mum and my little sister. at the momment I am the man of the house. little sister can’t look after my mother because she got to studies, work, she’s young as well.

… [His mother] doesn’t work. She very sick, i lost my dad never seen him, all i got was my mother she’s been sick for many years now. …

No one is there to look after my mother. There is but it my little sister my oldest brother and sister don’t live near us. at the momment it only my mother and my little sister. She can’t look after my mother because she’s young and she also work. I was the only man of the house and I want be there support her and my little sister …

(Errors in original)

THE TRIBUNAL’S DECISION

10    While the Tribunal’s decision comprised 49 pages, it is common ground that neither of the applicant’s representations above was mentioned in the first 35 pages where the Tribunal conducted a detailed review of Direction 79 as it applied to the applicant’s application. However, the remaining 14 pages do contain the following references to one or more of the applicant’s representations above:

REFUGEE, REFUGEE CAMP AND NO FAMILY IN SUDAN

116.    The Applicant has contended and appears to continue to contend that he fears the prospect of returning to South Sudan. In his Request for Revocation of a Mandatory Visa Cancellation under s 501(3A), he said:

•    I’m really scrad [sic] to go back to South Sudan. I have no chance of being alive from I go back to South Sudan;

•    I been [sic] thru a lot when I was a young boy. I didn’t have a father to tell me right and wrong;

•    In response to the question “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?”, the Applicant responded, “Yes.” In response to the further question, “If yes, please describe your concerns and what you think will happen to you if you return.”, The Respondent replied with “I come to Australia because of the war, so I don’t know where I would be if I didn’t come here. I’m scard [sic] that I won’t be alive. That I would be killed and homeless if I go back to Africa and have no-one back in Africa.

•    In response to the question “Are there any problems you would face if you have to return to your country of citizenship?”, the Respondent replied with, “I don’t have any family member back home. I grow up in refugee camp I would also have to face the war. Big chance of my getting killed.

…

121.    The second of the two sentencing episodes for which there is a transcript in the material occurred on 6 April 2018 before Her Honour Judge McGuiness at the Queensland District Court held at Southport. The Applicant was legally represented at that hearing. The only reference to the Applicant’s past in South Sudan made by Her Honour Judge McGuiness, reads as follows:

“ ... You were born in South Sudan. You migrated to Australia with your mother and siblings. Two of your siblings and your father are deceased. Prior to coming out here, you were required to live in a refugee camp for some six years.”

…

147.    Paragraph 14.5(1) of the Direction reads as follows:

“To 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.”

148.    With reference to the factor appearing at Paragraph 14.5(1)(a) of the Direction, it can be noted that the Applicant does not suffer from any diagnosed medical or psychological condition. His Personal Circumstances Form discloses that, in response to the question “Do you have any diagnosed medical or other psychological conditions?”, the Applicant replied “No.” Further, Her Honour Judge McGuiness noted (when sentencing the Applicant in April 2018): “You have some things in your favour. You do not seem to suffer from any mental health issues. You are somebody that is in a much better position than many other people who come before this Court.”

149.    The Applicant spent the first nine years of his life in then Sudan, now South Sudan. It is difficult to accept that he would face insurmountable language and cultural barriers were he to be returned there. While I accept he would face difficulties in re-establishing himself in South Sudan, I regard it as, to an extent, implausible that there is no one at all in South Sudan who could vouch for him upon his return there.

150.    I am mindful of the difference between the level of any social, medical and/or economic support available to citizens in South Sudan compared to Australia. As against that, regard must be had to the ambit of paragraph 14.5(1) of the Direction. It relevantly stipulates that the extent of any impediments confronted by a non-citizen if removed from Australia to their home country, in establishing themselves and maintaining basic living standards, is to be considered in the context of what is generally available to other citizens of that country. There is no evidence before me to suggest that the Applicant would not be able to access those facilities in the same manner as they are available to all of the other citizens of South Sudan.

151.    The Respondent acknowledges that the Applicant fled Sudan/South Sudan as a refugee and that he does not appear to have significant social and familial support networks in that country. The Respondent further concedes that the Applicant would have difficulty accessing comparable social, practical, medical and financial opportunities as he would in Australia. On this basis, the Respondent concedes that this Other Consideration (e) weighs in favour of the Applicant. I agree.

(Emphasis and errors in original; footnotes omitted)

MOTHER’S ILLNESS AND NEED FOR CARE BY THE APPLICANT

135.    The starting point of any assessment of weight attributable to this Other Consideration (b) is to ascertain the Applicant’s own position about factors connecting him to Australia. He said these things in a written statement in June, 2018:

“No one is there to look after my mother. There is but if my little sister my oldest brother and sister don’t live near us. At the moment it only [sic] my mother and my little sister, she can’t look after my mother because she’s young and she also work. I was the only man of the house and I want be there support her and my little sister. My brother and sister live in North - side they also studies in uni. My mother and my little sister are in south side ...”

136.    Further, in his statement filed for the purposes of these proceedings, the Applicant said these things:

“...My little sister was also pregnant was due on the 20/2/2019, breakdown for me because I knew I wasn’t going to be there for the day my nephew’s (twin boys) came out and also for the rest of my family, then i got transfer to Perth immigration.”

…

“I want to get out and go my culture community and stand up and talk to all the young youth to not do crime, respect all other different coomuinty [sic] focus on your goal and life, stay out of troble [sic] look after your kids in your future when yous [sic] all have kids, look aftere [sic] your mother, or any familys [sic] you got...i got family that i want to be with, I want to look after my two newphews [sic], my little sister and my mother shes sick i was the man of the house, my oldest sister and brother dont live with my mother, they lived together down northside, theres two woman [sic] and kids i left at home, i want to be there for my family.”

137.    In his Personal Circumstances Form, the Applicant mentions a number of immediate family members in Australia. In terms of immediate family, the Applicant’s mother, two sisters and brother all reside in Australia. In response to the question “Please state how many other relatives you have in Australia or overseas”, the Applicant has not nominated any person.

138.    I am mindful of the statement and/or character references filed in support of the Applicant. His brother (Witness “KR”) says these things:

“[The Applicant] is one of the most hardworking and dedicated people I know. His work ethic and commitment to his family and friends are his strongest attributes...

That is one thing I admire about my brother, once he understands his mistakes he’ll do everything to make up for it. Australia has done a lot for my family (including [the Applicant]) and I believe deep in his heart; though he may not show it or express it; he’s appreciative of the opportunity and second chance it has given him.”

139.    I approach the evidence of the Applicant’s apparent partner with caution. As mentioned earlier, their relationship to date has been purely conducted via electronic means. Her evidence is that, were he to be returned to the community, they would prioritise his reconnecting with his family in Queensland before he and she made any firm arrangements regarding his relocation from Queensland to Wollongong, New South Wales to live with her and her two infant children. I have misgivings about the extent to which the Applicant’s connection with the apparent partner can be said to be a factor significantly tying him to this country.

140.    The Applicant sister, Witness “SR” said these things:

“During some of our conversations, he talks about wanting to come home to further his education, get a job and be there for his family. The past two years has been the hardest for our family with [the Applicant] going away; mum constantly being admitted to hospitals due to depression, flashbacks, stress, and health conditions. My brother is a very family orientated individual and there’s nothing he loves more than his family.

... Another reason he looks forward to coming home is so that he can look after mum and help release some of her stress and depressions. I love my family very much, and as much as I would love to be there for them, this is rather a little challenging at time as I work full-time and has just been transferred to [location redacted] for work.

Since my younger sister, ...gave birth to two beautiful twin boys, [the Applicant] did not get an opportunity to meet or be there for her.

The community, his friends and families, who all want and wish to have him back home in Brisbane all love [the Applicant] dearly.

…”

141.    It is clear that the strength, nature and duration of the Applicant’s ties to Australia are somewhat significant. Consistent with Paragraph 14.2(1)(b) of this Other Consideration, those ties, and thus this Other Consideration (b), favours the Applicant.

142.    That finding must be tempered by the factors appearing at 14.2(1)(a) of the Direction. Although the Applicant arrived here as a nine year old, and did not begin offending until his mid-late teens, his offending conduct spans the entirety of his adult life in this country. It culminates in April 2018, with him being sentenced to a custodial term of four years imprisonment for the commission of very serious offences. That term in criminal custody, upon its expiry, led to his placement in immigration detention. Thus, he has consistently offended (and very seriously so) for virtually the entirety of his adult life. Accordingly, any weight attributable to this Other Consideration (b) must be tempered by a finding (pursuant to paragraph 14.2(1 )(a)(ii) of the Direction) that any time he may be said to have spent contributing positively to the Australian community is significantly outweighed by his very serious criminal conduct during the corresponding period.

143.    While this Other Consideration (b) may weigh in favour of revocation, it is outweighed by the Primary and Other Considerations which favour non-revocation.

(Emphasis and errors in original; footnotes omitted)

THE TWO REVIEW GROUNDS

11    In his originating application filed by leave, the applicant sets out two grounds of review, with particulars, as follows:

1.    The Tribunal’s review miscarried because it failed to properly consider one of the reasons advanced by the Applicant for the purposes of s 501CA(4)(b)(ii); namely, that the cancellation should be revoked because one of the impediments to his return to South Sudan was that, as a child in Sudan, he grew up in a refugee camp and had no family in South Sudan:

1.1.    The Applicant had put forward, as a reason why the cancellation of his visa should be revoked, the fact that he grew up in a refugee camp and had no family in South Sudan – see Bundle of Relevant Documents, pp 42, 54.

1.2.    The Tribunal noted a concession by the Respondent that the Applicant fled Sudan/South Sudan ads a refugee and “does not appear to have significant social and familial support networks in that country – see Bundle of Relevant Documents, p 580 (para 151).

1.3.    The Tribunal failed to identify or consider the Applicant’s claim that he grew up in a refugee camp, saying only that “The Applicant spent the first nine years of his life in then Sudan, now South Sudan” – See Bundle of Relevant Documents, p 579 (para 149).

1.4.    The Tribunal failed to identify or consider the Applicant’s claim that he had no family (not merely no “significant social and familial support networks” – See Bundle of Relevant Documents, p 579 (para 149).

1.5.    If the Tribunal had properly understood and consider the Applicant’s posited reason (ie, that he had grown up in a refugee camp and had no family in South Sudan), that may have materially affected the weight that the Tribunal was prepared to give to its consideration of the impediments facing the Applicant if removed from Australia to South Sudan.

2.    The Tribunal’s review miscarried because it failed to properly consider one of the reasons advanced by the Applicant for the purposes of s 501CA(4)(b)(ii); namely, that his mother in Australia was very sick, he did not know how much time she had left, and he wished to be with her and look after her – see Bundle of Relevant Documents, pp 42, 50, 575-577.

2.1.    The Applicant had put forward, as a reason why the cancellation of his visa should be revoked, the fact that his mother was “very sick”, he did not “know how much time she has got”, he “want[ed] to be there for her”, and in his absence there would be “no one there to look after [her] and support her” – see Bundle of Relevant Documents, pp 42, 50.

2.2.    The Tribunal referred to the Applicant’s statement that he wanted to be there to support his mother and to evidence of the mother being unwell – see Bundle of Relevant Documents, p 575 (para 135), 576 (para 136), 577 (para 140).

2.3.    The Tribunal failed to refer to the Applicant’s express claim that he did not “know how much time she [ie, his mother] has got” or that he “want[ed] to be there for her”.

2.4.    Despite referring to some of the relevant evidence, the Tribunal failed to make findings about the mother’s health or the Applicant’s intention of looking after his mother and failed to engage with or properly consider that aspect of the reasons advanced by the Applicant in support of revoking the visa cancellation.

(Errors in original)

THE CONTENTIONS

12    In his written submissions in this Court, the applicant advanced three key propositions as follows:

(a)    First, that the Tribunal was bound or legally required to consider the reasons advanced by the Applicant under s 501CA(3)(b) about why his visa cancellation should be revoked.

(b)    Second, that the Tribunal failed to consider the Applicant’s Representations by failing to consider the contention that an impediment to his return to South Sudan was that he grew up in a refugee camp and had no family in South Sudan (ie, Ground 1).

(c)    Third, that the Tribunal failed to consider the Applicant’s Representations by failing to consider the contention that his mother in Australia was very sick, he did not know how much time she had left, and he wished to be with her and look after her (ie, Ground 2).

(Emphasis removed)

He contended that the Tribunal’s failure to consider the representations as outlined in (b) and/or (c) above constituted jurisdictional error which justified orders that the Tribunal’s decision be set aside and that his application be reconsidered according to law.

13    In response, the Minister submitted that, on a fair reading of the whole of the Tribunal’s reasons, it had properly considered each of the representations about which the applicant complains. That is, on the first ground of review: that the applicant “would face (largely unspecified) impediments on his return to South Sudan because he had no immediate family or significant support networks there”; and, on the second ground of review, that his visa cancellation ought to be revoked because his mother was unwell with no one other than him to provide care for her. Alternatively, he submitted, even if the Tribunal had failed to properly consider each of those representations, the applicant had failed to establish that there was a “realistic possibility” that the Tribunal’s decision might be different if it had considered either or both of them.

CONSIDERATION

14    The Tribunal was required to consider information, material or evidence that is “sufficiently important, such that the error is serious enough to be described as jurisdictional”, or to consider “significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation” (see Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531; [2018] FCAFC 116 at [30] per Rangiah J and [34] per Colvin J, Reeves J agreeing at [3]).

15    In this matter, the Tribunal specifically mentioned each of the representations about which the applicant complains: that he had no family in Sudan (at [116], see fourth dot point at [10] above); and that his mother was sick and he was the only one who could care for her (at [135] and [136], see at [10] above). Having done so, the Tribunal then considered the essence of each of these representations.

16    In respect of the former, it recorded the Minister’s acknowledgement “that the Applicant fled Sudan/South Sudan as a refugee and that he does not appear to have significant social and familial support networks in that country”. It then agreed that this concession weighed in his favour. In these circumstances, the difference between the applicant’s claim to have “no family” in Sudan and the Tribunal’s record of the Minister’s acknowledgement that he did not appear to have “significant social and familial support” in Sudan could not, in my view, constitute jurisdictional error. Put differently, I agree with the Minister’s contentions that, on a fair reading of the Tribunal’s reasons, it properly considered this aspect of the applicant’s representations.

17    As for the latter, it is relatively clear from the structure of its reasons at [135]–[140] that the Tribunal included that representation in its conclusion at [141] “that the strength, nature and duration of the Applicant’s ties to Australia are somewhat significant”.

18    Accordingly, I consider the Tribunal duly considered each of the representations concerned and did not demonstrate any jurisdictional error in that consideration.

CONCLUSION

19    For these reasons, there is no merit in either of the applicant’s grounds of review. His application must therefore be dismissed with costs. The orders will be:

1.    The applicant’s application filed by leave on 4 October 2019 is dismissed.

2.    The applicant is to pay the first respondent’s costs of this application to be taxed failing agreement.

Associate:    

Dated:    22 April 2020