FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 985

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal made on 7 February 2020 in relation to the applicant be set aside.

2.    The matter be remitted to the Tribunal for determination according to law.

3.    In accordance with r 4.19 of the Federal Court Rules 2011 (Cth), the first respondent pay the applicant’s costs of the proceeding, to be fixed by way of a lump sum.

4.    If the parties agree on a lump sum figure in relation to the applicant’s costs, they are to file a joint minute of proposed orders on or before 4 pm on 29 July 2020.

5.    In the absence of any joint minute of proposed orders, pursuant to paragraph 4 of these orders, the matter of an appropriate lump sum be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and Summary

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of the delegate of the Minister not to revoke the mandatory cancellation of the applicant’s visa.

2    The applicant was unrepresented when he filed an originating application on 5 March 2020. On 1 April 2020, the Court made a pro bono referral, which was accepted by counsel for the applicant. The court expresses its gratitude to counsel for taking the referral.

3    On 5 May 2020, pursuant to consent orders made on 1 May 2020, the applicant filed an amended originating application. The application relies on two grounds of review, namely that the Tribunal failed consider “all relevant matters” and that alternatively the Tribunal’s decision was legally unreasonable. The applicant seeks orders that the decision of the Tribunal be quashed and the matter be remitted for determination according to law.

4    For the reasons that follow, the Tribunal’s decision must be set aside.

Background

5    The applicant was born in Vietnam in 1973 and is a citizen of that country. In 1980, the applicant arrived in Australia, having left Vietnam with his brother and uncle by boat. The Tribunal acknowledged it was a “perilous” journey. The boat was picked up by a sea freighter on the high seas and deposited in Port Adelaide. The applicant was granted a Class BB Subclass 155 Five Year Resident Return (permanent) visa.

6    On 7 December 2017, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth). The delegate was satisfied that the applicant’s visa was subject to mandatory cancellation because:

(a)    on 26 February 1996, the applicant was convicted of armed robbery for which he was sentenced to 15 months imprisonment; and

(b)    at the time of the visa cancellation, the applicant was serving a sentence of full-time imprisonment for a criminal conviction. This appears to have related to burglary and theft offences of which the applicant was convicted on 12 September 2017.

7    By a communication on 11 December 2017, as he was entitled to do, the applicant requested that the Minister revoke the cancellation decision under s 501CA(4) of the Migration Act. That subsection provides that the Minister may revoke a decision under s 501(3A) if the person requests that the decision be revoked and the Minister is satisfied either that the person passes the character test or that there is another reason why the original decision should be revoked.

8    On 14 November 2019, a delegate of the Minister decided not to revoke the cancellation decision. The applicant was notified of this decision on 15 November 2019.

9    On 20 November 2019, the applicant submitted an application to the Tribunal for review of the non-revocation decision. The Tribunal conducted a hearing on 29 January 2020. The applicant was not represented before the Tribunal, although he was assisted in the preparation of his statement of facts and contentions by Refugee Legal. The respondent was represented.

10    On 7 February 2020, the Tribunal affirmed the delegate’s non-revocation decision.

The Tribunal’s Decision

11    The Tribunal set out in some detail the background of the applicant’s case and the evidence before the Tribunal. The reasons then follow the structure of Direction 79, a direction given by the Minister under s 499 of the Migration Act to guide exercises of power under s 501CA. The Tribunal is required to comply with the terms of the Direction by reason of s 499(2A) of the Migration Act. The Direction instructs decision-makers that they must consider a number of matters, including protection of the Australian community, the best interests of minor children and expectations of the Australian community. The Tribunal considered these and found that while the best interests of minor children (the applicant’s daughter, cousin’s child and brother’s children) weighed in favour of revocation, the nature and seriousness of the applicant’s conduct and risk to the Australian community weighed against it.

12    The facts were generally not in issue before the Tribunal, and the Tribunal accepted the evidence of the applicant as to the difficulties and distress that removal would cause him and his family. It was not contested before the Tribunal, and is again accepted on review, that the applicant failed the character test. The only live issue before the Tribunal, as it noted at [11], was whether there was another reason that the cancellation decision should be revoked. The Tribunal approached this question through a consideration of the factors listed in Direction 79 and the weight to be apportioned to each matter in favour of or against revocation. There was no challenge to the overall approach adopted by the Tribunal. This was a case where all the matters raised by the applicant fitted within the factors set out in Direction 79.

13    The Tribunal spent some time considering the evidence in support of the applicant from [26]-[66] of the decision. This included oral evidence given by the applicant’s two children and by two friends before the Tribunal in support of his character, his familial relationships, and prospects of rehabilitation. It is clear from the summary provided in the reasons that the Tribunal engaged with the facts of the applicant’s case, and was impressed by the evidence given by the applicant’s two children.

14    Relevantly to the grounds of review, the Tribunal considered the extent of the impediments to the applicant if removed from [111]-[117]. The Tribunal made note at [112] of the applicant’s evidence of his ongoing medical conditions, including hepatitis B and D, dental issues, and use of methadone to treat his drug addiction. With regard to the antiviral medication the applicant requires to treat his hepatitis, the Tribunal found at [114] that it “may” be that the medication “would be less available in Vietnam, but there was no evidence before the Tribunal about that”.

15    The Tribunal went on to consider from [115]-[116] other impediments to the applicant, including that his Vietnamese language skills had deteriorated over time and that it was unlikely that his family remaining in Vietnam would be able to provide him with assistance.

16    On balance, at [118] the Tribunal found that two of the three primary considerations under Direction No 79 weighed against revoking the cancellation decision. At [120], it concluded:

Considering the matter as a whole and taking into account the specific circumstances of the case, as contemplated by paragraph 13(1) of the Direction, the Tribunal concludes that, in weighing the balance of the relevant considerations, because of the very long history of serious offending, the failure to make other than very temporary steps to reform his conduct after the visa warning in 2013 (which were not maintained), and the consistent breaches of orders of the Court, the primary considerations relating to the nature and seriousness of the conduct and the expectations of the Australian community which weigh against revoking the visa cancellation are in this case determinative.

17    The Tribunal affirmed the decision under review.

Grounds of Review

18    By his amended originating application, the applicant advances the following grounds of review:

1.     The Administrative Appeals Tribunal failed to review the First Respondent's decision according to law and thereby failed to exercise its jurisdiction by:

a.    failing to consider relevant matters when determining the extent of impediments the Applicant may face if removed to Vietnam in maintaining basic living standards;

b.    in the alternative to 1(a), exercising its power unreasonably by finding that the extent of impediments the Applicant may face if removed to Vietnam in maintaining basic living standards weights only slightly in favour of revoking the mandatory cancellation of his visa; and

c.    failing to consider relevant matters when determining whether the Applicant represents an unacceptable risk of harm to the Australian community.

Particulars

i.     The Tribunal failed to consider all relevant circumstances of the Applicant's health and the social, medical and/or economic support available to him in Vietnam, including:

a.     the Applicant's claim that he would not be able to afford antiviral

b.     the availability in Vietnam of appropriate treatment for the Applicant’s substance use disorder (that is, addiction to heroin) in light of the Applicant currently undergoing methadone and mental health treatment; and/or

c.     the extent to which these matters would impede the Applicant's ability to establish himself and maintain basic living standards (in the context of what is generally available to other citizens of Vietnam).

ii.     To the extent it is determined that the Tribunal did consider these circumstances, it was unreasonable for the Tribunal to conclude that the extent of these impediments weighed only "slightly" in the Applicant's favour, given their implications for the Applicant's health.

iii.     The Tribunal failed to consider all relevant circumstances of the Applicant's risk to the Australian community, including

a.     the significance to his rehabilitation of him undergoing methadone and mental health treatment for substance use disorder (heroin addiction); and

b.     the extent to which his offending as a "courier" for organised drug traffickers actually materially increased the risk to the Australian community.

19    While this is expressed as a single ground, I understand, and the parties’ submissions confirm, that there are three grounds advanced, each alternative to the other. The applicant informed the Court that he did not press the third ground. Therefore the grounds to be considered are:

(a)    Did the Tribunal fail to consider (in the sense described in the authorities) the three relevant matters set out at (a)-(c) of the particulars to the applicant’s first ground of review; and

(b)    Was the Tribunal’s exercise of power legally unreasonable because the Tribunal found these impediments weighed only "slightly" in the applicant's favour, notwithstanding their severe implications for the applicant's health.

submissions

The applicant’s submissions in summary

Ground 1(a)    

20    The applicant submits that the Tribunal failed to consider “in a meaningful way” the applicant’s need for continuing medical treatment for his drug addiction, other medical conditions and the possibility that he may be suffering from an undiagnosed mental illness. During oral argument, the applicant focussed on the way the Tribunal dealt, in the context of paragraph 14.5 of Direction 79, with what was likely to happen to the applicant on return to Vietnam in relation to his access to anti-viral medication for his hepatitis, and to methadone for his heroin addiction, together with the consequences of the applicant not having the same level of access he has in Australia.

21    The applicant relied on Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 538 at [33] to contend that it may be inferred from failure to mention a serious health condition in consideration of paragraph 14.5 of the Direction that the condition had not been considered in that context. Paragraph 14.5 of the Direction requires the Tribunal to consider the extent of impediments to the applicant if removed and this, the applicant contended, requires a qualitative factual assessment.

Ground 1(b)

22    In the alternative, if the Court concludes the Tribunal did consider the applicant’s medical conditions, then the applicant contends no reasonable decision maker acting rationally could, on the evidence before the Tribunal, have concluded that the impediments the applicant would face on removal weighed only “slightly” in favour of revoking the cancellation decision. Accordingly, to affirm the decision under review was in those circumstances a legally unreasonable exercise of power.

The Minister’s submissions in summary

Ground 1(a)

23    The Minister drew attention to the equivocal nature of the applicant’s claim that he would struggle to access necessary medical treatment in Vietnam, and further, to the fact that he provided no evidence to the Tribunal in support of this contention. The Minister submits that in this context, the Tribunal’s conclusion that it “may” be that the medication the applicant requires “would be less available in Vietnam” was open to it, and was not affected by any legal error. In substance, the Minister submitted that the relatively brief material before the Tribunal was reflected in the relatively brief consideration it gave to the issue.

Ground 1(b)

24    On the evidence before the Tribunal, the Minister submits it was open to the Tribunal, acting reasonably, to conclude that the impediments the applicant would face in Vietnam in relation to his health weighed only slightly in favour of revocation. The Minister submits that this rationale for the weight given is clear from the context preceding the Tribunal’s conclusion at [117].

Resolution

Ground 1(a): Consideration of the applicant’s health issues

Applicable principles

25    During argument, it became apparent that there was some debate between the parties on the applicable principles to this ground. Counsel for the applicant emphasized that the first ground was couched in the context of the Tribunal’s obligation to comply with Direction 79, and the contention that if it had failed to do so in a way which was central to the outcome of the review, then it exceeded its jurisdiction. There are a number of authorities for that proposition, which was described by Burley J in VKTT v Minister for Home Affairs [2019] FCA 1018 at [19], by reference to a number of earlier authorities (full court and first instance) as not being the subject of any dispute. Two of those referred to are my own decisions, however see also Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [42]; and PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] (both decisions of Colvin J). More recently, see XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323 at [80]-[87], where Wheelahan J proceeded on the basis that a failure to understand and apply a Ministerial Direction made under s 499 of the Act (there, Direction 65) could result in a decision maker exceeding her or his jurisdiction. While of course all depends on what it is in a s 499 Direction which has been misunderstood, misapplied, omitted or overlooked, and how the decision maker’s reasoning is said to have miscarried on the facts and evidence before her or him in a way which was capable of affecting the outcome, for present purposes it may be taken that an error of this kind is capable of affecting the jurisdiction of the decision maker.

26    As counsel for the Minister observed, there is a separate line of authority, represented by decisions such as the Full Court’s decision in GBV18 v Minister for Home Affairs [2020] FCAFC 17, which are couched by reference to whether a decision maker has “considered” the representations made to her or him, and what the law requires for such “consideration” to be lawful consideration. These are the cases which now describe the requisite consideration as an “active intellectual engagement”, and similar terms. This issue often arises in the context of revocation decisions about mandatory cancellations and whether there is “another reason” to revoke a cancellation: that was the context in GBV18.

27    The existence of this other line of authority does not gainsay the authority of the first line. There is also a degree of overlap between the reasoning in each line of authorities. The applicant was entitled to put his case as a failure by the Tribunal to comply with Direction 79, being a Ministerial direction binding on it about how it is to go about its task (relevantly) of determining whether or not to revoke a mandatory visa cancellation. Direction 79 (and others like it, made under s 499) do not prescribe or mandate any particular outcome of an exercise of power; rather they prescribe matters that a decision maker must consider, and the approach a decision maker must take to some matters, as a matter of executive policy. Such a Direction cannot be inconsistent with the Act (see s 499(2)), but a Direction may require decision makers to follow a particular process, and look at particular factors, in deciding how to exercise a discretionary power such as that in s 501CA(4): see FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 at [34] and the cases cited therein. It has been accepted that a direction under s 499 may go as far as directing decision makers about the weight which should, at least in the usual course, be given to particular factors. However, again the Direction could not dictate the weight to be given to any particular factor, because the statute itself in provisions such as s 501CA(4) does not do so. As Wheelahan J said in XFKR at [80], properly understood, a Direction which identifies “primary” and “secondary” considerations does not mean

that the Tribunal is … required in all circumstances to give greater weight to primary considerations, and depending upon the particular circumstances, one or more “other” considerations are capable of outweighing the primary considerations.

28    Against this setting, the Tribunal’s approach to what is contained in paragraph 14.5 of the Direction is to be considered. Paragraph 14.5 is in Part C of the Direction, which is headed “Other Considerations”. Paragraph 7 provides:

7. How to exercise the discretion

(1)     Informed by the principles in paragraph 6.3 above, a decision-maker:

a)    must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

b)     must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a noncitizen's visa will be revoked.

29    Paragraph 8 provides:

8. Taking the relevant considerations into account

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2)     In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)     Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4)     Primary considerations should generally be given greater weight than the other considerations.

(5)     One or more primary considerations may outweigh other primary considerations.

30    Paragraphs 14(1) and 14.5 provide:

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.

…

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.

31    I accept the applicant’s submissions that an important feature of paragraph 14.5 is that it requires the decision maker to assess “the extent” of the impediments which will be faced by a person. To undertake that task requires, as the applicant submitted, a qualitative assessment about not only the nature of the impediment but how minor or severe it is likely to be for the particular person concerned.

32    The impediments are to be assessed in terms of how they may affect a person “establishing themselves” and “maintaining basic living standards”. These are practical matters, which require a decision maker to turn her or his mind to how a person is, in fact, going to be able to subsist if returned to the country in question. As both parties accepted, the statement in brackets – “in the context of what is generally available to other citizens of that country” – is designed to ensure that a rational comparison is made between what will face the individual concerned, and what may face other citizens of that country on a day to day basis, rather than any comparison with the situation in Australia. That is not to say that what a person enjoys in Australia by way of – for example – access to medical treatment is irrelevant, far from it. Rather, it is to say no more than this part of the Direction asks decision makers to engage in a realistic assessment of what a person will face and cope with, by reference to what other people in the country concerned may have to face, and cope with.

33    The Minister sought to make something of the fact that in paragraph 14(1) the five “other” considerations which follow (including those at paragraph 14.5) are required to be taken into account “where relevant”. I accept that this qualification may have work to do in some cases, in deciding whether a decision maker really did fail to perform the task required under paragraphs 14(1) and 14.5. If a factor (such as “cultural barriers”) is simply not engaged on the material before the decision maker (whether material submitted by an applicant or otherwise), then it is clear that there may be no material non-compliance with the approach required by the Direction if a decision maker does not actively consider that factor.

What evidence and information was before the Tribunal

34    From the outset of the revocation request process, although he was not legally represented, the applicant highlighted both his heroin addiction and methadone treatment, and his hepatitis.

35    In his initial form he said:

I’m currently on waiting list for Hep B & D treatment, it is unclear that these treatment will be available to me in Vietnam. I have no support in Vietnam.

36    He also said, on a form which asked about his likelihood of re-offending:

I’m now drug free, on methadone program…

37    In answer to a question about any diagnosed medical or psychological conditions, he disclosed his diagnoses of hepatitis B and hepatitis A, and prescription to methadone for opiate dependence. He also noted that he was currently receiving treatment from an infectious disease medical professional.

38    In his statement to the Tribunal, the applicant said:

I'm currently a Hepatitis C,B &D patient and on daily Medication of Entecavir sz 0.5mg daily for the rest of my life,

I have been told by the chronic desease specialist that if I stop taking the medication my hepatitis will spread rapidly.

39    In a further statement to the Tribunal, the applicant said:

I also have bad health. I don't know how, but I contracted hepatitis B, C and D. I am on daily medication and I have been told I will need to take it for the rest of my life. A chronic disease doctor has told me if I stopped taking the medication, my health would deteriorate rapidly. I am not sure if the medication is available in Vietnam. I know that medication there is often expensive and wages are low. I fear that I might end up very unwell and possibly die without treatment.

40    The Tribunal also recorded in its reasons at [43] that the applicant had told the Tribunal

he had been diagnosed with hepatitis B, C and D and that he takes Entecavir (an antiviral medication), which his medical advisers say he will have to take for the rest of his life.

41    There is no suggestion in the Tribunal’s reasons that it did not accept this evidence.

42    As I have noted, the applicant had some assistance in the filing of Facts and Contentions before the Tribunal. In that document, the following contention was made to the Tribunal:

Impediments on return

32.    The Applicant has returned to Vietnam only once in the last 40 years. He has had very little contact with his family in Vietnam and he is not confident that his family in Vietnam would have the capability (or the desire) to assist him financially, emotionally or otherwise if he were to be returned there.

33.    It would be virtually impossible for the Applicant to secure employment given that he is illiterate in Vietnamese and can only speak it at an exceptionally rudimentary level. Additionally, The Applicant is not educated and suffers from physical ailments which would hinder his ability to work. These include Carpel Tunnel Syndrome and Hepatitis B, C and D.

34.    If the Applicant is returned to Vietnam, he will face poverty and hardship and struggle to access health care and medications for his Carpel Tunnel and Hepatitis B, C and D. Additionally he will be isolated from his central supports - namely his children who give him strength, his doctors and his friends in the community, and be returned to a place where he has experienced significant trauma and in which he has limited prospects and social connections. His mental health will likely be negatively impacted by returning to Vietnam.

35.    These considerations have obvious implications for his ability to subsist. He would struggle to find employment, safe and permanent accommodation and obtain medical treatment. His situation would be untenable.

43    Also before the Tribunal was a country report by DFAT about Vietnam. In the Tribunal’s reasons, it is incorrectly identified as a 2018 report. In fact, it is a 2019 report. A copy was tendered during the hearing without objection. At [99] of its reasons, the Tribunal refers to this document. It does so to indicate that, of its own motion, it raised the contents of the report with the applicant. This was in the context of the applicant’s expressed fear that he may still be of interest to the Vietnamese authorities because he fled Vietnam illegally. The Tribunal put a specific passage from the DFAT report to the applicant on this issue.

44    However, as the applicant’s counsel submitted, there was another section of the DFAT report which dealt in some detail with the difficulties faced by those returning to Vietnam who had drug additions or health problems. On p 11 there is a heading “Health”, and over the following three pages, DFAT describes conditions in Vietnam in relation to the general health of the population, access to medicine and to health facilities, social health insurance and mental health programs. There is a section on illicit drug use, and on the use by the Vietnamese government of drug treatment centres known as “06 centres”. DFAT says, for example (on p 13):

Limited information is available about the living and working conditions in 06 centres, as no external monitoring is permitted by authorities. In-country sources report, however, that conditions in 06 centres are worse than those in prison. Evidence indicates that compulsory detention of drug users in Vietnam is frequently ineffective, forced labour is used as a form of ‘treatment’, post-release services are limited, and the stigma of being a 06 centre inmate often impedes reintegration into communities in terms of employment and accessing healthcare. In addition to the 06 centres, treatment is also provided through community or home-based programs, including methadone clinics for heroin users in some districts and communes, which require co-payment by the user.

The Tribunal’s reasoning

45    At [111], both parties accepted the Tribunal correctly described its task under paragraph 14.5 of the Direction:

The Tribunal must consider the extent of impediments Mr Nguyen may face if removed from Australia to Vietnam in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country. The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical and/or economic support available to them in that country.

46    The difficulty is that the Tribunal did not carry out the task it described.

47    The Tribunal then makes the following findings (at [112]-[114]):

In the International Health and Medical Services clinical records before the Tribunal (Exhibit A8) there is evidence that Mr Nguyen has a diagnosis of hepatitis B and D and a former diagnosis of hepatitis C which the Applicant told the general practitioner had cleared. There is also evidence of dental problems and the issue of spectacles, and that he was on a ‘weaning dose’ of methadone.

The Tribunal notes the evidence before it that Mr Nguyen has had carpal tunnel surgery in 2013 and that some of his symptoms have recurred, and that this led to his giving up repetitive work.

The Tribunal accepts that the public health services in Vietnam would not offer the same access to treatment as Mr Nguyen receives in Australia, and the Respondent conceded that in the hearing. It may also be that the antiviral medication Mr Nguyen says he relies upon would be less available in Vietnam, but there was no evidence before the Tribunal about that.

(Emphasis added.)

The passage at [114] does not reflect compliance with paragraph 14.5 of Direction 79

48    The part highlighted in bold is the extent of the Tribunal’s analysis and findings on the matters put to the Tribunal by and on behalf of Mr Nguyen about his access to medication and treatment in Vietnam.

49    It was these matters, and others related to the applicant’s connection (or lack of it) to family in Vietnam, as well as his lack of fluency in Vietnamese, which led to the Tribunal’s finding at [117] that the “extent of impediments” factor “weighs slightly in favour” of revoking the visa cancellation.

50    However, it is not the weighing process which is the focus of this ground – that is the focus of ground 1(b). The focus of ground 1(a) is on the absence of necessary fact finding and engagement by the Tribunal.

51    In Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569, the Full Court (at [37]) described the obligation on the decision maker as one “to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request”. With regards to that obligation the Full Court said (at [39]):

Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law.

52    The Tribunal knew, and appeared to accept, that the applicant would have to take anti-viral medication for the rest of his life. The Tribunal’s reasons demonstrate it was familiar with the submissions put on behalf of the applicant, and in those submissions the applicant contended his clinical specialist had told him he would die if he could not continue to take that medication. The Tribunal had considerable information in the DFAT report about the health care situation in Vietnam. The Tribunal itself had volunteered some of the contents of the DFAT report to the applicant during the hearing. Yet the Tribunal did not engage in any fact finding about the “extent” of the impediments which would be experienced by the applicant in Vietnam in relation to securing access to ongoing, lifelong medication for his hepatitis. It glossed over this issue, an issue the applicant’s material had made most prominent.

53    I accept, as the Minister submitted, that the applicant did not lead any positive evidence about whether or not he would have access to anti-viral medication in Vietnam. There was nothing specifically on this issue in the DFAT report. However, the applicant put as clearly as he could – both in his own evidence and in the contentions filed on his behalf – that he doubted he would have access to the medication. That is the kind of situation where, in order to engage with a factual representation clearly and repeatedly made, the Tribunal may have needed to make some inquiries. To say as much is not to impose some forbidden “duty to inquire”. Rather, it is to recognise the inquisitorial features of the review process, the Tribunal’s superior access to country information (including an ability to ask specific questions about specific countries, through DFAT) and to recognise the reality that some engagements with factual matters may require some activity on the part of the Tribunal, rather than it simply being a passive receptacle of what an unrepresented person does, or does not, put before it. Otherwise, it is not truly deciding what the correct or preferable decision on the review is; it is placing an impermissible onus of proof on an applicant: cf McDonald v Director General of Social Security [1984] FCA 59; 1 FCR 354 at 356-357 (per Woodward J), 366 (per Northrop J) and 369 (per Jenkinson J).

54    The fact that there may be limited circumstances in which a Tribunal, as part of its review function, may need to make inquiries on matters of fact is well recognised: see Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50; 261 FCR 97 at [56]-[59] and the authorities there referred to; One Key Workforce v CFMEU [2018] FCAFC 77; 262 FCR 527 at [120]-[121].

55    Of course, the Tribunal could also have simply accepted the applicant’s evidence and contentions as put to it, especially given the applicant was relying on what his clinical specialist had told him. That specialist had made a direct prediction about the applicant’s fate if he had no access to his anti-viral medication. Where there were no issues of credibility, where the applicant had been forthright and contrite about his previous behaviour, and where third party witnesses were supporting the applicant in measured and credible ways, it was open to a fair minded Tribunal to simply accept what the applicant said about the danger to health posed by being returned to Vietnam. That was another fact finding path open to the Tribunal. The point made by ground 1(a) is that the Tribunal chose no fact finding path at all.

56    In relation to the applicant’s recovery from his heroin addiction, the evidence before the Tribunal was that the applicant was well advanced in his recovery. As counsel for the Minister submitted, the applicant was on a low dose of methadone.

57    The Tribunal made no factual finding at all about how the applicant would access methadone in Vietnam. It made no factual findings about whether the applicant’s addiction might be less susceptible to control if he lost the stability that his evidence indicated he had in Australia. It made no factual findings about what his life might be like in Vietnam as a heroin addict, if his recovery stalled. Again, despite the applicant making this issue a prominent part of his reasons for revocation, and his evidence to the Tribunal, the Tribunal made no findings about the extent to which this impediment might affect the applicant’s ability to “establish” himself in Vietnam and maintain basic living standards. That is also despite the clear evidence that it was his heroin addiction which drove much of his criminal offending.

58    On both these factual matters (anti-viral medication and heroin addiction), there was a need for what has been called “honest confrontation” by the decision maker: see Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3], cited with approval by the Full Court in Omar at [37]. The subject matter of this kind of fact finding is uncomfortable, and no doubt difficult: it requires the making of a prediction about the probabilities, or possibilities, of what fate may lie in store for a person if sent to a poor country with inadequate social infrastructure, a person without connections or support, perhaps without good language skills, and perhaps with major health issues. It is human to wish to gloss over those hard details, and not to weigh them in a detailed sense against what may be a picture of sustained and serious criminal offending. Glossing over them and giving weight to criminal offending may be a less confronting course. It may avoid confronting, in a fact finding sense, what that constellation of features and impediments might really mean for a person’s health, and indeed for their life in another country, away from the purview of Australian administrators.

59    However that is the task reposed in the decision maker, who has the serious responsibility of deciding whether a person should or should not be able to remain in Australia and have restored the permission to do so which she or he once had. The task of finding facts and weighing various factors remains firmly with the decision maker, and after the kind of engagement the law requires, a decision maker may nevertheless still conclude the correct or preferable decision is to refuse to revoke a visa cancellation. The reasons will then contain an explanation of why, despite having confronted those uncomfortable facts, a decision maker reached the conclusion she or he has reached. There would be no error of the kind made here, if such an approach is taken.

60    The Tribunal’s decision overall is carefully structured and reasoned, and is of a high quality. However, on these two important factual matters the applicant relied on as reasons the visa cancellation should be revoked, the Tribunal has failed to comply with the task imposed on it by Direction 79.

Is the error jurisdictional

61    The terms of Direction 79 are made by s 499(2A) a mandatory part of the Tribunal’s task on review. Failure to “comply” with the terms of the Direction, in the sense of misunderstanding, misapplying or failing to apply an aspect of it means that the Tribunal has not performed its statutory task as the Act intends it to be performed. As the authorities to which I refer at [25] illustrate, adherence to the obligation imposed by s 499(2A) is an inviolable condition of the Tribunal’s exercise of its review function. Were it otherwise, the purpose of conferring the power in s 499(1) would be frustrated, and executive guidance, including policy guidance, of the decision making process, which Parliament has authorised, would not be achievable. Plainly enough, there will be cases where the nature of any departure from the terms of the Direction is trivial, or irrelevant to the performance of the review function in a given case. In such cases, it would not be appropriate to describe what has occurred as a contravention of the obligation in s 499(2A) because, in substance and effect on a particular review, the Tribunal has adhered to the terms of the Direction as they are relevant to its task.

62    In circumstances such as the Tribunal’s reasoning in the present case, the terms of paragraph 14.5 have not been complied with. There has been no consideration and determination of the “extent” of the impediments to be faced by the applicant on return to Vietnam, as he described them to be, relating to

(a)    whether he will have access to anti-viral medication for his hepatitis (and what the consequences are for him if he does not); and

(b)    whether he will be able to access methadone (and what are the consequences for him if does not and his heroin addiction is not controlled).

63    That error is jurisdictional; these claims by the applicant were made from the start of the revocation process and were central to the Tribunal’s review task. This conclusion could also have been reached through the characterisation of error identified in cases such as GBV18.

64    If a “materiality” prism be required, then I respectfully adopt the approach taken by the Full Court in Omar at [46]:

The Assistant Minister’s error is material and gives rise to jurisdictional error because there is a possibility that if the Assistant Minister had truly engaged in an active intellectual process with the significant matters put forward by the respondent on the likelihood of harm, he may have come to a different conclusion on the issue of revocation.

65    The same finding can be made on the present application. If the Tribunal had truly engaged in an active intellectual process about whether the applicant would, for example, be able to access anti-viral medication for hepatitis, it may have reached a different conclusion about the weight to be attributed to the impediments factor, and in turn, the overall weighing exercise. On one view of what the applicant was suggesting, there was a real risk his health would be very seriously compromised, or that he might not survive very long in Vietnam without anti-viral medication. Whether or not the Tribunal would be satisfied on the evidence that this was a risk, was a matter for it to determine. However, the DFAT report painted a negative picture of the situation in Vietnam for drug addicts, and there is a proper basis for the Court to conclude the applicant was deprived of the possibility of a different outcome on his merits review by reason of the Tribunal’s failure to engage in an active and detailed way with what was put to it under paragraph 14.5

66    Another way of putting the materiality issue is how Gleeson J expressed her conclusions in Kim at [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.

67    I respectfully agree this is an appropriate approach to errors associated with a s 499 Direction. See also Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 at [67]-[69].

68    Finally, in SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779, in dealing with the question whether an error involving a misunderstanding of an expert report was “material” Allsop CJ said at [144]:

The error concerned important evidence going to a central issue in the exercise of jurisdiction. The error was material. A proper reading of the evidence by a fair and open-minded member could have made a difference to the decision: Hossain 264 CLR at 134–135 [30]–[31]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 433 [2]; and EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; 268 FCR 299 at 308–310 [35]–[39].

69    I respectfully agree that this is the nature of the inquiry a Court on review should make. The Court is not required to engage in some close textual and factual analysis of the particular decision under review in order to attempt to reconstruct what the decision might have looked like had the error not been made.

Ground 1(b): legal unreasonableness

70    As I have found the first ground of review should succeed, it is not necessary to determine this ground.

Conclusion

71    The decision of the Tribunal should be set aside. The applicant secured legal representation through a pro bono referral. Accordingly, there will be costs orders pursuant to r 4.19 of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    15 July 2020