FEDERAL COURT OF AUSTRALIA

Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 583

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari, directed to the Administrative Appeals Tribunal, issue to quash the decision of the Administrative Appeals Tribunal the subject of the proceeding and the matter be remitted to the Administrative Appeals Tribunal for determination according to law.

2.    The first respondent pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The applicant (Mr Kim) seeks judicial review of a decision of the second respondent (AAT), made on 23 October 2019, to affirm a decision of a delegate of the Minister for Home Affairs not to revoke the cancellation of Mr Kim’s Class BB Subclass 155 (Five Year Resident Return) visa.

2    The grounds of review, stated in the originating application, are that:

(1)    The AAT failed to take into account a relevant consideration, in addressing the extent of impediments if Mr Kim were removed.

(2)    The AAT’s decision was unreasonable.

(3)    The AAT denied procedural fairness to Mr Kim.

(4)    The AAT failed to take into account a relevant consideration.

3    The originating application sets out particulars of the first ground of review to the effect that the AAT failed to take into account available information and evidence about Mr Kim’s age and health, including a medical report dated 11 September 2018 prepared by Gregory Falk, Clinical Associate Professor of Surgery. This report records a diagnosis of “so called gallbladder polyps”.

4    Mr Kim did not file written submissions in support of his application.

5    He was represented at the hearing of the application by Mr Berg of counsel.

Background

6    Mr Kim is a citizen of South Korea who first arrived in Australia in July 1997. His visa was originally cancelled on 19 February 2018, on the basis of a suspended sentence of 12 months’ imprisonment imposed on 31 October 2017. This sentence was imposed for Mr Kim’s second contravention of an apprehended domestic violence order. Following representations, a delegate of the Minister revoked the cancellation decision.

7    Shortly after, Mr Kim again breached the apprehended domestic violence order. On 28 September 2018, previous convictions for contravening the order and assaulting his step-daughter were called up and he was sentenced to imprisonment for 12 months with a non-parole period of four months.

8    Following this second sentence to imprisonment, on 23 October 2018, Mr Kim’s Class BB Subclass 155 (Five Year Resident Return) visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Act) (original decision).

9    On 27 November 2018, Mr Kim made representations seeking revocation of the original decision in accordance with s 501CA(4)(a) of the Act.

10    Section 501CA(4) provides:

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

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

(b)    the Minister is satisfied:

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

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

11    On 30 July 2019, a delegate of the Minister decided not to revoke the original decision. Mr Kim then applied to the AAT for review of the decision not to revoke the original decision.

12    Mr Kim accepts that the AAT could not be satisfied that he passed the “character test”. Accordingly, the issue for determination by the AAT was whether there was “another reason why the original decision should be revoked” within the meaning of s 501CA(4)(b)(ii).

13    In making its decision, the AAT was bound by the direction entitled “Direction No. 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction).

14    Clause 14(1) of the Direction provided that, in deciding whether to revoke the mandatory cancellation of a visa, “other considerations must be taken into account where relevant”, including “(e)xtent of impediments if removed”. Clause 14.5 of the Direction provided:

(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.

AAT’s reasons

15    The Minister’s submissions included the following summary of the AAT’s reasons for decision, which was not disputed by Mr Kim:

4.    In considering the protection of the Australian community, the Tribunal found the applicant’s criminal conduct to be very serious, as it involved violent assaults on two women and a child, all of whom were members of his immediate family “entitled to expect that he would protect them, not attack them”. In reaching its conclusion, the Tribunal found the applicant did not accept full responsibility for his criminal activity and minimised the seriousness, despite his repeated declarations to the contrary. For example, the applicant suggested that police assaulted him and incorrectly recorded the facts of various incidents. In making its finding, the Tribunal considered the police facts sheets and sentencing remarks associated with his assault offences that occurred between 2002 and 2018. Further, while the applicant attempted to explain the reason for his continued driving offending, the Tribunal found it did not excuse the seriousness of his conduct and that it involved risk to other road users and a repeated disregard for the laws of Australia.

5.    The Tribunal found that should the applicant engage in conduct similar to the past, there would be a significant risk of further criminal conduct of serious physical or psychological harm to members of the community including his own family. In determining the likelihood of the applicant’s reoffending, the Tribunal considered the evidence of the applicant, his wife and a clinical psychologist who had assessed the applicant. The Tribunal noted that the applicant had repeatedly expressed remorse for his past conduct, and took into account the opinion of the psychologist that “he would be surprised” if the applicant engaged in future violent conduct. However, the Tribunal found that a significant risk remained if the applicant was to return to live in the Australian community. The Tribunal considered the applicant had given assurances in the past, but despite warnings, continued to offend. Further, the Tribunal had regard to the limited rehabilitative treatment received by the applicant. While it noted the applicant’s evidence that he would commence treatment immediately once released from detention, the Tribunal found that the effectiveness of such treatment was undetermined. Having regard to its assessment of reoffending and the nature and seriousness of the offending to the Australian community, the Tribunal found that the protection of the Australian community weighed heavily in favour of non-revocation.

6.    Turning to the best interests of minor children, the Tribunal had regard to an unsigned statement from the applicant’s 17 year old daughter and the applicant’s evidence that she had declined to provide a further statement as she would be too distressed to be involved. The Tribunal noted the psychologist’s evidence that the re-establishment of the family unit would lead to increased risk of the applicant becoming violent in the future and found it of concern that the daughter may be living in an environment in which she may witness violence. That notwithstanding, and noting the present estrangement, the Tribunal concluded that, on balance, the daughter’s interest would be best served by revoking the cancellation as there remained the possibility of some reconciliation and the applicant would be better able to support his daughter if residing in Australia.

7.    In considering the expectations of the Australian community, the Tribunal concluded that the Australian community would expect the applicant’s visa cancellation not be revoked in the circumstances. Those circumstances included the applicant’s convictions were violent and towards women, children and police, his lack of respect for Australian law, his risk of re-offending and limited rehabilitative progress to address his offending.

…

9.    The Tribunal had regard to the applicant’s ties to Australia, noting that he had resided in Australia for 22 years, had a wife, daughter and stepdaughter residing permanently in Australia, operated a business and had been a member of his Church’s congregation. Based on this evidence, the Tribunal was satisfied the applicant had “strong and continuing ties to Australia”.

10.    The Tribunal was satisfied that a decision not to revoke the cancellation of the applicant’s visa would not have a significant impact on Australian business interests. As for the applicant’s impediments if removed to South Korea, the Tribunal found the applicant capable of speaking the language fluently and had received schooling and tertiary study in South Korea. While the Tribunal noted there would be some difficulty in obtaining employment, it concluded this consideration did not weigh in favour of revoking the cancellation.

11.    In respect of the impact on victims, the Tribunal was satisfied the victim (stepdaughter) of the applicant’s crimes would be most impacted by a decision to revoke the cancellation. Having considered her evidence, the Tribunal was satisfied that an unfavourable decision would not have a negative impact on her. The Tribunal found it did not have sufficient evidence to make further findings as to the impact on the Australian community, including other victims of the applicant’s crimes.

12.    Considering the totality of the circumstances, on balance, the Tribunal concluded that the expectations and protection of the community outweighed the factors that favoured revocation, including the best interest of the child, strength, nature and duration of the applicant’s ties to Australia and the impediments if removed.

Mr Kim’s submissions

16    Mr Kim initially raised an issue as to whether the AAT had erred in recording a criminal conviction for assault occasioning actual bodily harm on 22 March 2002. The issue was relevant to whether there was evidence for the following finding (at para 59 of the AAT’s decision record):

In December 2007, Mr Kim returned to Australia from Thailand. When he completed his Incoming Passenger Card, he stated that he did not have any criminal convictions. This information was false as he had been convicted of assault occasioning actual bodily harm in 2002.

17    Ultimately, after an opportunity to file further submissions, Mr Kim did not pursue that issue.

18    Secondly, Mr Kim submitted that the AAT had failed to address Mr Kim’s medical issues in considering the extent of impediments that Mr Kim may face if removed from Australia. In his evidence to the AAT, Mr Kim referred to an alcohol problem going back to 2005, a diagnosis of depression associated with alcohol, and alcoholism. Mr Kim also submitted Dr Falk’s report, referred to above. Mr Kim also submitted to the AAT that his medical issues, depression and alcoholism would go untreated in South Korea.

Minister’s submissions

19    The Minister submitted that the AAT did not have to refer to every item of evidence before it: see Applicant WAEE v MIMA [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47] and Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [48]-[49].

20    The Minister argued that, on its face, Professor Falk’s report concerning the applicant’s gallbladder polyps was not of such obvious relevance that one would expect the AAT to specifically mention it. The report does not suggest that the applicant suffered from a serious condition or required any urgent treatment.

21    The Minister noted that para 35 of the AAT’s decision record recorded the requirement to take into account the considerations in Part C of the Direction in order to determine whether the mandatory cancellation of Mr Kim’s visa should be revoked. Further, Part C of the Direction (including, relevantly, cl 14.5) was annexed to the AAT’s decision record. On this basis, it is an unfair reading of the AAT’s reasons to suggest that it did not consider cl 14.5(1)(a) of the Direction at all.

22    The Minister also noted that Mr Kim’s claim that his medical issues would go untreated in South Korea was unsupported and that the Minister’s statement of facts and contentions noted that the applicant would have the same access to health and other support services as other Korean citizens.

23    The Minister acknowledged that the AAT did not expressly address the issue of the applicant’s health when considering impediments to removal at paras 121-122 and 127, but argued that, on the facts of this case, that does not support an inference that it has overlooked cl 14.5(1)(a) despite setting it out as noted above. Rather, given that none of the applicant’s health issues appear particularly serious or requiring urgent treatment, and there was no evidence that they could not be treated in South Korea beyond the applicant’s assertion, the AAT’s not expressly mentioning them should be taken to indicate a view that the applicant’s health did not weigh strongly for or against revocation, citing Minister for Immigration and Citizenship v Buadromo [2012] FCAFC 101 at [17]-[20]. The Minister submitted that the AAT’s conclusion at para 127 of its decision record that “the evidence before me does not suggest that [the applicant] would experience significant impediment should he return to South Korea” is consistent with that reading.

24    The Minister also argued that Mr Kim’s case fails because even if the Court were to infer that the consideration in cl 14.5(1)(a) was in fact not taken into account by the AAT, Mr Kim has not discharged his onus of showing that there is a realistic possibility that the AAT could have come to a different (i.e. favourable) decision if it had had regard to it: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [46] and [70]-[72] (Bell, Gageler and Keane JJ). The Minister noted again that the medical evidence did not indicate that Mr Kim has a serious or urgent medical condition and there was no objective evidence that he could not obtain medical treatment in South Korea. The Minister submitted that it is simply not realistic to suggest that the AAT could have come to a favourable decision on the basis of cl 14.5(1)(a) given the heavy weight given by it to the need to protect the Australian community (at para 123 of the decision record).

Consideration

25    As finally argued, Mr Kim’s case was based solely on the ground that the AAT failed to take into account a relevant consideration, in addressing the extent of impediments if Mr Kim were removed (ground 1).

26    The AAT’s reasons concerning cl 14.5 of the Direction are as follows:

F4.5    Extent of impediments Mr Kim may face if he is removed from Australia

121.    If Mr Kim is removed from Australia he would be returned to South Korea. He is a citizen of that country and speaks the language fluently. He received his schooling and undertook some tertiary study in South Korea. His parents and one of his brothers live there.

122.    While I accept that Mr Kim may have some difficulty in obtaining employment, this consideration does not weigh in favour of revoking the cancellation.

…

127    I accept also that Mr Kim would experience some difficulty in obtaining employment in South Korea. However, the evidence before me does not suggest that he would experience significant impediment should he return to live in South Korea. He has his parents and a brother living there and he speaks the language fluently.

27    In Minister for Immigration and Citizenship v Buadromo [2012] FCAFC 101 [17]-[18], the Full Court identified the following principles relevant to the question whether the AAT has been shown not to have taken into a relevant consideration:

(1)    The Court should not too readily draw an inference that, where the reasons are otherwise comprehensive and an issue has at least been identified at some point, it has nonetheless not been addressed: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [47] per French, Sackville and Hely JJ.

(2)    “... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

28    In this case, there was evidence about Mr Kim’s health which was relevant to the extent of impediments that Mr Kim may face if removed from Australia. Mr Kim described himself as suffering from alcoholism and referred to a diagnosis of depression. His evidence was also supported by a report of a clinical and forensic psychologist, Peter Stoker, dated 8 October 2019, which included a diagnosis of Major Depressive Disorder.

29    It was open to the AAT to conclude, if it accepted Mr Kim’s evidence about those health issues, that they constituted significant impediments to Mr Kim establishing himself in Korea and maintaining basic living standards.

30    The AAT referred to the fact that Mr Kim had been unable to take part in rehabilitations programs to address his excessive use of alcohol. It also referred to the fact that Mr Kim had had the assistance of a psychologist whilst in immigration detention and that Mr Kim acknowledged his need for further help. At paras 76 and following the AAT referred to Mr Stoker’s evidence. At para 79, the AAT referred to Mr Stoker’s opinions that Mr Kim is suffering from a Major Depressive Disorder and has developed an Alcohol Abuse Disorder. At para 80, the AAT referred to Mr Stoker’s opinion that Mr Kim should be “referred to both a psychologist and a psychiatrist to treat his depression, Asperger’s and ascertain whether he requires psychotropic medication”.

31    At para 87, the Tribunal stated:

Unfortunately, Mr Kim has received only limited rehabilitative treatment in relation to his alcohol addiction, his repeat offending, and his apparent difficulties with anger management. Some supervision was provided by the justice system but this was not successful. Despite the repeated role of alcohol in his offending his alcoholism has gone untreated.

32    Having made these findings, it is significant that the AAT did not refer to Mr Kim’s health in its reasons concerning cl 14.5(1)(a) of the Direction. Contrary to the Minister’s submission that none of the applicant’s health issues appeared particularly serious, the AAT’s findings included untreated alcoholism. There was also evidence of a Major Depressive Disorder, although it is not clear whether the AAT accepted that evidence.

33    Having regard to the seriousness of those conditions, I infer from the AAT’s failure to mention either of them, or Mr Kim’s health generally in its discussion concerning cl 14.5(1)(a), that the AAT did not consider the impact of Mr Kim’s health as required by cl 14.5(1)(a).

34    The AAT found that there are factors weighing both in favour of and against revoking the visa cancellation but the AAT concluded that the considerations in favour of now revoking the cancellation significantly outweighed those in favour of revocation. In those circumstances, the AAT could realistically have resulted in a different decision had it not made the error identified above.

35    Consequently, the failure to address the impact of Mr Kim’s health as required by cl 14.5(1)(a) was relevantly material to the AAT’s decision and the AAT’s failure to consider that matter involved jurisdictional error.

Conclusion

36    For the reasons set out above, Mr Kim’s application for review succeeds. I will make orders that the matter will be remitted to the AAT for determination according to law. Costs should follow the event.

Associate:

Dated:    1 May 2020