Federal Court of Australia

DGPZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1569

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs 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

MOSHINSKY J:

Introduction

1    The applicant, a citizen of Turkey who first arrived in Australia at the age of four, has an extensive criminal record, including offences involving violence.

2    On 3 February 2017, the applicant’s Class BB Subclass 155 Five Year Resident Return visa was cancelled by a delegate of the then Minister for Immigration and Border Protection pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). That provision, which is set out below, provides for the mandatory cancellation of a visa in certain circumstances. The applicant made a request for revocation of the cancellation decision and provided representations in support of that request. On 14 December 2017, another delegate of the Minister decided, pursuant to s 501CA(4) of the Migration Act, not to revoke the cancellation decision (the non-revocation decision).

3    The applicant applied to the Administrative Appeals Tribunal for review of the non-revocation decision. The Tribunal affirmed the decision of the delegate. That decision of the Tribunal was set aside by a judge of this Court and the matter was remitted to the Tribunal for reconsideration according to law: DFW18 v Minister for Home Affairs [2019] FCA 599.

4    Following the remittal of the matter, a hearing took place before the Tribunal, differently constituted.

5    On 3 February 2020, the Tribunal decided to affirm the non-revocation decision and published reasons for its decision.

6    The applicant has applied to this Court for judicial review of the Tribunal’s decision of 3 February 2020. The first respondent is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). The applicant relies on a single ground, namely that the Tribunal failed to consider a substantial and clearly articulated submission of the applicant and thereby failed to afford the applicant procedural fairness and/or otherwise constructively failed to exercise its jurisdiction. The particular submission relied on by the applicant in support of this ground was, in summary, that the applicant faced a prospect of mistreatment in the form of physical confinement and other inhuman or degrading treatment in the course of treatment for any mental health relapse in Turkey.

7    In my view, for the reasons that follow, the applicant has not established that the Tribunal failed to consider, in the sense of a failure meaningfully to engage with, the applicant’s mental health mistreatment claim. Accordingly, the applicant’s ground of challenge to the Tribunal’s decision is not made out.

Key legislative provisions

8    Section 501 of the Migration Act relevantly provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

9    That provision refers, relevantly for present purposes, to paragraphs (6)(a) and (7)(c) of s 501, which provide as follows:

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or …

10    Section 501CA provides:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(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.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

 (6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Background facts

11    The following statement of the background facts is based on the Tribunal’s reasons.

12    The applicant first arrived in Australia in 1969 at the age of four.

13    The applicant has an extensive criminal record, which is detailed in the Tribunal’s reasons. As summarised in the Tribunal’s reasons at [59], the applicant’s offending commenced while he was still a juvenile and has continued for 35 years. His initial offending until early 1986 was dealt with through probation, fines and conditional liberty arrangements. He was given his first custodial sentence in January 1986, and has served approximately 18 terms of imprisonment since. There are few meaningful gaps in the chronology where no convictions were recorded. The applicant has consistently reoffended despite numerous rehabilitative opportunities. He was convicted of his most serious offences at the ages of 45 and 50, most recently in July 2016, which was a particularly violent offence against his intellectually-disabled female partner.

14    In relation to the applicant’s most recent conviction in 2016, a forensic medical officer determined that the applicant inflicted over 100 separate injuries against his female partner in 2015 with a three-pronged garden fork and a large screwdriver: see the Tribunal’s reasons at [62]. The applicant also put his hands around her throat and shook her, attempted to suffocate her with a pillow, and used a large kitchen knife to threaten her. His partner required extensive hospital treatment over a 10 day period, including surgery, to deal with potentially life-threatening injuries.

15    As noted above, on 3 February 2017 the applicant’s visa was mandatorily cancelled by a delegate of the then Minister for Immigration and Border Protection. The applicant was serving a full-time sentence of imprisonment at the time.

16    The applicant requested revocation of the cancellation decision and made representations in support of that request.

17    On 14 December 2017, another delegate of the Minister for Immigration and Border Protection decided not to revoke the cancellation decision.

18    The applicant applied to the Tribunal for review of the non-revocation decision.

19    On 13 March 2018, the Tribunal affirmed the non-revocation decision.

20    On 2 May 2019, the Tribunal’s decision was overturned by a decision of this Court and the matter was remitted to the Tribunal for reconsideration according to law.

21    Following the remittal, the parties filed statements of facts, issues and contentions for the purposes of a further hearing before the Tribunal. Of particular relevance for present purposes, the applicant, who was represented by Refugee Legal, filed a statement of facts, issues and contentions dated 2 October 2019 (the ASFIC). The ASFIC is a lengthy document, comprising 181 paragraphs. It includes a section headed “International non-refoulement obligations”, comprising [128]-[153]. It also includes a section headed “Extent of impediments if removed”, comprising [171]-[179]. It is necessary to refer to these sections in some detail in order to provide context for the particular parts of the ASFIC relied on by the applicant in the present proceeding.

22    In the section of the ASFIC dealing with international non-refoulement obligations, it was submitted that, if returned to Turkey, the applicant would be at risk of serious and significant harm as defined in s 36(2)(a)-(aa) of the Migration Act and that international non-refoulement obligations also arose. It was submitted that the applicant’s mental health had deteriorated and details of his treatment during 2018 were provided. Reference was made to a report of a consultant psychiatrist, Dr Tram Nguyen.

23    At [131] of the ASFIC, it was submitted that there was a real chance, which was not remote or speculative, that the applicant would be subjected to serious harm at the hands of the Turkish authorities “in the form of withholding basic services including psychiatric treatment which will threaten his capacity to subsist, as well as psychological harm, physical assault, torture and death” by reason of, either cumulatively or separately, his membership of particular social groups, namely:

(a)    people with mental illness in Turkey who are impecunious; and

(b)    offenders or detainees with mental illness and ill-health in Turkey.

It was also submitted that the applicant’s status as a “criminal deportee” and his previous substance abuse disorder increased his vulnerability to harm.

24    In [132], it was stated that, in addition to engaging non-refoulement obligations under the 1951 Convention Relating to the Status of Refugees (and its 1967 Protocol), the applicant was also at risk of significant harm in the form of arbitrary deprivation of his life, torture, and cruel, inhuman and degrading treatment or punishment at the hands of the Turkish authorities. As such, it was submitted, Australia’s obligations under the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the 1966 International Covenant on Civil and Political Rights were also engaged.

25    It was submitted in the AFSIC at [133]:

Given the Applicant’s documented personal circumstances which includes a long and complex history of substance abuse from age 15 - 50, ongoing severe mental illness in the form of, severe depression, psychosis, schizoaffective disorder and PTSD requiring intense and high level treatment, his history of suicidality and self harm both in prison and in the community, his injury from previous assaults to his head, his hearing loss, latent Tuberculosis and Hepatitis C history, he will be at high risk of serious and significant harm in Turkey. Dr. Nguyen states that Applicant is now highly vulnerable to acute psychiatric relapse.

26    In [134], it was submitted that the applicant would have no financial resources to draw on and very limited if any access to welfare, if returned to Turkey. Thus, it was submitted, his capacity to subsist and to access necessary health and mental health care would be in serious question.

27    In [137] it was submitted:

The stress of return to Turkey given all of the above in combination, will, cause the Applicant to deteriorate mentally and given past experience to become severely depressed, suicidal and to self-harm. Then, on top of this, if the Applicant is impecunious and homeless, which is the only available inference given that he has no support or any ready place to live and cannot speak the language, his risk is heightened. In a state of mental ill-health in Turkey, given current information, about treatment of people with mental illness in the community and detention, the Applicant is at risk of harm.

28    It was submitted, in [138], that the current country information supported the applicant’s protection claims. In [140], reference was made to the Department of Foreign Affairs and Trade Country Information Report for Turkey dated 9 October 2018 (DFAT Report). It was submitted that this document reported restricted access to health services for the poor, particularly in the public hospital and community mental health system, inadequately funded community mental health services, low numbers of psychiatrists and mental health professionals per capita, poorly trained staff leading to poor service, and failures in addressing discrimination and stigma. Extracts from the report were set out.

29    In [141], reference was made to a March 2016 academic article pertaining to community mental health services and part of the article was quoted.

30    Paragraph 142 of the ASFIC, which is particularly relied on by the applicant in the present proceeding, was in the following terms:

Country information also confirms ill-treatment of people with mental illness in Turkey. A Turkish newspaper reported on a 2014 Turkish NGO Report as follows,

A recent NGO report has revealed the poor conditions in all of Turkey’s mental disorder hospitals, where patients are forced to bathe altogether, remain isolated for days, tied to their beds and deprived of proper rehabilitation services.

…

The scarcity in the number of doctors and psychologists was stated as one of the major problems seen in all six hospitals in the report.

…

Following any resistance against hospital officials, the patients are tied to their beds and in almost all of the hospitals, such patients remain tied to their beds for almost a day without being released for toilet breaks, said the report.

The report also revealed that all hospitals lacked any rehab or therapy services for patients. “The patients are given drugs and left with no choice but to stay indoors all day, mostly watching TV or wandering around the corridors of the hospital. Therapy and rehabilitation methods are almost not used in all hospitals,” said the report.

Some patients are forced to stay in isolation with no contact with outsiders for years, said the report, giving striking examples.

(Footnote omitted.)

The first sentence of the paragraph set out above was followed by a footnote that stated “SG Documents 16”. The document appears in the Court Book for the present proceeding at page B459.

31    In [143], it was submitted that Dr Nguyen had opined in her 29 September 2019 report that there was a high risk that the applicant would not receive necessary mental health treatment in Turkey, that his deterioration was unlikely to be detected without close supervision and that he was at risk of death through self-neglect if he relapsed in his mental health in Turkey.

32    Paragraph 144 of the ASFIC referred to the risk that the applicant might seek out drugs to alleviate stress if returned to Turkey. In that event, he would be likely to become involved with the criminal justice system there. The submission referred to the risk of harsh and degrading treatment in Turkish prisons and places of detention. Further reference was made to the DFAT Report.

33    At [146], it was submitted that, of major concern for the applicant was current country information confirming the failure of the Turkish authorities to provide health and mental health services in Turkish prisons and places of detention. It was submitted that the applicant was at high risk of death in turkey as a result of his profile as a detainee or prisoner with severe mental ill-health and history of self-harm and suicidality. It was also submitted, at [148], that the applicant’s status as a “criminal deportee” from Australia would only increase his risk profile with Turkish authorities.

34    In [151], it was submitted that returning the applicant to Turkey in isolation from his family, after residing in Australia for almost 50 years and where he will struggle financially and not be able to access necessary medical and mental health treatment “will place his life at risk”.

35    In the section of the ASFIC dealing with the extent of impediments if removed, it was submitted in [172] that the applicant’s very serious mental ill-health condition, and other vulnerabilities as described, made him highly vulnerable to further acute mental health episodes and to self-harm and suicidality under the stress of forced return. It was submitted that, as detailed in the non-refoulement section, the applicant would not be able to access assistance for his complex health and other needs in Turkey and his capacity to survive would be under threat.

36    On 13, 14 and 15 November 2019, a hearing took place before the Tribunal (differently constituted from the first Tribunal hearing). The applicant was represented by counsel. The Minister was represented by a solicitor.

The Tribunal’s decision

37    On 3 February 2020 the Tribunal decided to affirm the non-revocation decision and published reasons for decision.

38    The Tribunal’s reasons are detailed, logically structured and clearly expressed. They comprise 138 paragraphs (including some paragraphs with many sub-paragraphs) over 79 pages. The Tribunal briefly outlined the background to the proceeding and the legislative framework. The Tribunal addressed whether the applicant passed the character test. The Tribunal noted that the applicant had been sentenced to multiple periods of imprisonment, including a 16-month sentence of imprisonment by the County Court of Victoria for the offence, ‘Use a false document to prejudice other’. Because of the combined effect of ss 501(6)(a) and 501(7)(c) of the Migration Act, the applicant did not pass the character test. Accordingly, s 501CA(4)(b)(i) did not provide a basis to revoke the cancellation decision. It was necessary, therefore, to determine under s 501CA(4)(b)(ii) whether there was “another reason” why the cancellation decision should be revoked.

39    The Tribunal outlined, at [32], the evidence before the Tribunal. The witnesses who gave oral evidence at the hearing were listed in [33]. The expert reports in evidence were listed in [36]. This included three expert reports prepared by Dr Nguyen. The Tribunal summarised the evidence of Dr Nguyen in detail at paragraphs (a) to (v) of [37]. The Tribunal dealt with the applicant’s evidence in some detail at [38], which comprised sub-paragraphs (a) to (q). The Tribunal summarised the evidence of the other witnesses and then made observations about the applicant’s evidence at [51]-[53]. The Tribunal was concerned about the applicant’s lack of recall regarding his offending and the inconsistent nature of his evidence. The Tribunal stated: “On occasions his responses come across as evasive and self-serving. His persistent lack of recall about criminal offences and other misconduct contrasted with his ability to recall things favourable to his application.” The Tribunal provided a number of examples to support these observations. The Tribunal also stated at [53] that the examples collectively “give rise to questions about [the applicant’s] capacity to be entirely truthful”.

40    The balance of the Tribunal’s reasons is structured under headings and sub-headings that reflect matters referred to in Direction No 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

41    The Tribunal considered the nature and seriousness of the applicant’s conduct at [57]-[64], concluding that the applicant’s offending was objectively very serious.

42    The Tribunal considered the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct at [65]-[86]. The Tribunal concluded at [86] that, having regard to all of the evidence, there was a “convincing likelihood [the applicant] will relapse into drug abuse and commit further offences” and this was “particularly so for offences involving dishonesty or violence”. The Tribunal concluded that the risk the applicant posed to the community was unacceptably high, and this primary consideration weighed very substantially against revoking the cancellation decision.

43    The Tribunal considered the expectations of the Australian community at [87]-[94], concluding at [94] that, given the serious nature of the applicant’s crimes and the unacceptable risk that he would relapse into drug abuse and commit further offences, the community would expect his visa to remain cancelled. This primary consideration therefore weighed very substantially against revocation of the cancellation decision.

44    Of particular relevance for present purposes is the next section of the Tribunal’s reasons, concerned with international non-refoulement obligations (at [97]-[111]). I will return to this section later in these reasons. The Tribunal concluded, at [111], that international non-refoulement obligations were not enlivened in this matter and carried no weight either for or against revocation of the cancellation decision.

45    The Tribunal considered the strength, nature and duration of the applicant’s ties with Australia at [112]-[119], concluding that the applicant’s ties are predominantly in Australia and that, on balance, this consideration weighed substantially in favour of revoking the cancellation decision.

46    The Tribunal considered the extent of impediments to the applicant if he were removed at [120]-[131]. This section is also relevant for present purposes and I return to it later in these reasons. The Tribunal concluded, at [131], that repatriation to Turkey would be very difficult for the applicant after living in Australia for most of his life. The Tribunal found that this consideration weighed very substantially in favour of revocation of the cancellation decision.

47    The concluding section of the Tribunal’s conclusion was as follows:

133.    Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, DGPZ does not pass the character test. The nature of his persistent and prolonged criminal offending, including violence against his elderly mother and an intellectually-disabled former partner, is objectively very serious. That is particularly so given his frequent offending after being formally warned by immigration authorities in 2011.

134.    DGPZ’s abstinence from illicit drugs since being arrested in 2015 represents a relatively brief period in what has been lifelong use of illicit substances since his teenage years. That abstinence has occurred in the aftermath of his arrest, under conditional liberty, while imprisoned, and in immigration detention. Any abstinence must also be considered in the context of DGPZ’s previously unfulfilled undertakings to cease drug use, commit to rehabilitation, and live a law-abiding life. He has instead relapsed into drug abuse and committed further offences. The unreliability of his past undertakings does not inspire confidence, particularly given his history of dishonesty and the Tribunal’s concerns about the veracity of his evidence.

135.    DGPZ’s most recent offence, at the age of 50, is also his most serious. He caused his intellectually disabled female partner to suffer potentially life-threatening injuries. There is an unacceptably high risk that DGPZ will again relapse into drug abuse and commit further offences. The community would expect DGPZ’s visa to remain cancelled.

136.    Of the other considerations enlivened in this matter, the Tribunal accepts that DGPZ’s ties are substantially in Australia. Repatriation to Turkey would pose considerable difficulties for him given he last visited the country approximately 13 years ago.

137.    Having weighed all of the considerations individually and cumulatively, the Tribunal finds there is not another reason of sufficient weight or significance to enliven the statutory power to revoke the cancellation of DGPZ’s visa. That is because the two relevant primary considerations weigh very substantially against revocation. These outweigh the other relevant considerations of ‘Strength, nature and duration of ties’ which weighs substantially in favour of revocation, and ‘Extent of Impediments if removed,’ which weighs very substantially in favour of revocation.

48    Accordingly, the Tribunal affirmed the decision under review.

The application for judicial review

49    By his amended originating application, the applicant seeks judicial review of the Tribunal’s decision. The applicant relies on a single ground, as follows:

1.    In purporting to discharge its function, the Tribunal failed to consider, properly or at all, a substantial and clearly articulated submission of the applicant and thereby failed to afford the applicant procedural fairness and/or otherwise constructively failed to exercise its jurisdiction.

Particulars

A.    The applicant made representations as to various reasons why the cancellation of his visa should be revoked, and gave evidence in support of those representations. In particular, the applicant made representations supported by evidence to the following effect:

i.    If returned to Turkey, the applicant faced a real prospect of a severe mental health relapse;

ii.    The applicant faced a prospect of mistreatment in the form of physical confinement and other inhuman or degrading treatment in the course of treatment for any relapse in Turkey.

B.    The Tribunal accepted the representation particularised at (A)(i) above.

C.    The Tribunal failed to consider or resolve, properly or at all, the representation particularised in (A)(ii) above.

50    The hearing of the proceeding took place using video-conferencing software due to the COVID-19 pandemic. Both parties were represented by counsel and solicitors.

Applicable principles

51    The applicant relies on the principles discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (Dranichnikov) at [24] per Gummow and Callinan JJ (Hayne J agreeing) and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE (No 2)) at [55]. In NABE (No 2), the Full Court of this Court said, at [55], that where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” (quoting Dranichnikov at [24]), that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. The Full Court stated that the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. (See also NABE (No 2) at [58], [61] and [63].) The principle discussed in Dranichnikov and NABE (No 2) has been applied in the context of s 501CA(4): see Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [17], [25] and [30] per Rangiah J with whom Reeves J generally agreed (at [3]).

52    The applicant also relies on the principles discussed by the Full Court of this Court in Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar). I summarised and discussed those principles in BPL20 v Minister for Home Affairs [2020] FCA 1207 at [44]-[49]. For ease of reference, I incorporate those paragraphs into these reasons in the following paragraphs.

53    In Omar, the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) dismissed the Minister’s appeal on the basis of upholding the respondent’s notice of contention, by which the respondent contended that the Assistant Minister had made a jurisdictional error by failing to consider the matters (including factual matters) raised by the respondent in his representations made under s 501CA(3) as being a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations. The Full Court set out the relevant principles at [34]. While the whole of that paragraph is relevant, I note in particular the following parts of [34]:

(g)    The representations play a central role in the relevant statutory regime. The Minister’s statutory power to revoke (and therefore “undo”) the mandatory cancellation of a person’s visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the Minister’s determination of whether he or she is satisfied that there is “another reason” why the cancellation should be revoked. As Colvin J said in Viane [v Minister for Immigration and Border Protection (2018) 263 FCR 531] at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed. Of course, this does not mean that every matter raised in representations is itself a mandatory relevant consideration. As Colvin J said in Viane at [69]:

All of which does not mean that each matter in the representations is a mandatory relevant consideration such that a failure to bring the consideration to account in performing the statutory task (that is, in forming the required state of satisfaction) would be a jurisdictional error. Such an approach would elevate a requirement to consider significant matters raised in representations to an obligation to form the required state of satisfaction by giving weight to each of the considerations raised in the representations.

…

(i)    While it may have been open to the Assistant Minister here ultimately to decide that the risk of harm to the respondent if he were returned to Somalia was not “another reason” for revoking the visa cancellation, the Assistant Minister was nevertheless obliged to give meaningful consideration to the representations on this issue. Again, as Colvin J stated in Viane at [67]-[68] in the context of the Minister’s statutory task under s 501CA(4):

67.    In this case, s 501CA imposes an obligation to invite representations and then form a view as to whether the Minister is satisfied as to whether there is ‘another reason’ to revoke the cancellation of a visa. So, if representations are made, there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4). In order to properly discharge that obligation, the Minister must not overlook the representations. A state of satisfaction that is formed without considering the representations is not a state of satisfaction of a kind that the Migration Act requires.

68.    Further, it is not enough to have regard to only some of the significant matters raised in the representations. In such a case the obligation to form the state of satisfaction by reference to the representations would also not be met. So, the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.

(Bold emphasis in original; italicised emphasis added.)

54    The Full Court also referred, at [35], to the discussion in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao) of the obligation of a decision-maker to “consider” a matter in a judicial review context. The Full Court in Omar, at [36], summarised the key points to emerge from Carrascalao that are also relevant to the decision-making function under s 501CA(4). At [36(d)], the Full Court stated that, even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, “it is necessarily implicit in the statutory regime that there is such an obligation”, and that the discharge of that obligation “requires the Minister to engage in an active intellectual process with reference to those representations”.

55    The Full Court in Omar also stated at [39]:

Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. 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 (see Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139; [2019] FCA 216 (Ezegbe) at [32]-[36] per Perram J).

(Emphasis added.)

56    At [41], the Full Court stated that “[t]he failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised by the representations actually made and the acceptance of which could, in the present statutory context, constitute ‘another reason’ for revoking the visa cancellation, may constitute a failure to carry out the statutory task and give rise to jurisdictional error”. The Full Court dismissed the Minister’s appeal on the basis of the respondent’s notice of contention: see Omar at [42]-[46].

57    These principles were applied by the Full Court (Flick, Griffiths and Moshinsky JJ) in GBV18 v Minister for Home Affairs [2020] FCAFC 17 (GBV18) at [30]-[32]. In that case the Full Court upheld ground 3 in the notice of appeal, by which the appellant contended that the Tribunal had made a jurisdictional error by failing to consider various matters (including evidence) raised by the appellant in his representations made under s 501CA(3) as providing a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations: see GBV18 at [2(b)]. The Full Court’s reasons for upholding ground 3 in the circumstances of that case were set out at [33]-[45].

58    The application of those principles depends on the facts and circumstances of the particular case. In AXT19 v Minister for Home Affairs [2020] FCAFC 32, the Full Court (Flick, Griffiths and Moshinsky JJ) stated at [56]:

Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

Consideration

59    The applicant submits that in representations to the delegate (seeking revocation of the cancellation decision) and to the Tribunal, the applicant consistently claimed that if he were returned to Turkey he faced a risk of mental health relapse and consequent harm comprising mistreatment in the course of his mental health treatment, to such an extent that he engaged Australia’s non-refoulement obligations. The applicant submits that the Tribunal acknowledged evidence upon which the claim was based, but did not properly consider the claim in the relevant legal sense.

60    The applicant submits that he consistently made claims that:

(a)    if he were to be returned to Turkey, he would suffer a serious relapse to his mental health; and

(b)    if he were to suffer a mental health relapse, he would be mistreated or suffer harm in the course of his treatment in Turkey.

61    In his outline of submissions, the applicant refers, in particular, to [137] and [142] of the ASFIC, which have been set out above.

62    The applicant submits that, at [127] of the Tribunal’s reasons, in the course of considering the extent of impediments on return, the Tribunal accepted the first premise of the applicant’s mental health mistreatment claim, namely that there was a prospect that if he were to be returned to Turkey the applicant would experience a serious relapse in his mental health. The applicant submits that, having accepted the first premise, the Tribunal failed to address the balance of the claim that on relapse the applicant may be mistreated in the course of mental health treatment.

63    In my view, the applicant has not established that the Tribunal failed to consider, in the sense of a failure meaningfully to engage with, the applicant’s mental health mistreatment claim.

64    First, in the section of the Tribunal’s reasons concerning international non-refoulement obligations, the Tribunal set out, at [98], a detailed summary of the applicant’s contentions that Australia’s non-refoulement obligations were engaged and expressly considered, at [98(m)], the contention in the ASFIC at [142], which is the key paragraph relied on by the applicant in the present proceeding. Although [98(m)] of the Tribunal’s reasons is the critical sub-paragraph for present purposes, I set out the whole of [98] to demonstrate the careful and comprehensive way in which the Tribunal summarised the applicant’s contentions regarding international non-refoulement obligations. The Tribunal stated at [98]:

It is submitted by DGPZ’s legal representatives that this consideration has ‘determinative weight,’ because as a person with a mental illness who is impecunious, and who is likely to fall foul of Turkey’s criminal justice system, DGPZ is owed non-refoulement obligations. Submissions relating to non-refoulement can be summarised as follows:

(a)    If returned to Turkey, DGPZ ‘will be at risk of serious and significant harm as defined under s36(2)(a)-(aa) of the Act,’ and ‘non-refoulement obligations under international law also arise;’

(b)    After the Tribunal’s adverse 2018 decision, DGPZ’s mental health deteriorated rapidly, requiring two involuntary admissions and ECT treatment. His vulnerability to acute deterioration may require maintenance ECT. The gravity of DGPZ’s mental health episodes in 2018 was such that only the alertness and supervision of detention centre staff ensured he received the required treatment. Similar ‘structure and support,’ including family support in Australia, is needed to ensure DGPZ’s current stability can be maintained;

(c)    By virtue of his long history of substance abuse between the ages of 15 and 50, ongoing severe mental illness, injury from previous assaults, latent Tuberculosis, and Hepatitis C history, DGPZ ‘will be at high risk of serious and significant harm in Turkey.’ It is submitted that is particularly so given there was a ‘real chance’ he could relapse into drug abuse in Turkey and find himself imprisoned;

(d)    There is a ‘real chance’ DGPZ will be:

‘subjected to serious harm at the hands of the Turkish authorities in the form of withholding of basic services including psychiatric treatment which will threaten his capacity to subsist, as well as psychological harm, physical harm, physical assault, torture and death by reason of, either cumulatively or separately, his:

Membership of particular social groups, namely:

i.    People with mental illness in Turkey who are impecunious;

ii.    Offenders or detainees with mental illness and ill-health in Turkey.

The Applicant’s status as a ‘criminal deportee’ and his previous substance abuse disorder increase his vulnerability to harm.

(e)    Consultant psychiatrist Dr Nguyen submits ‘there is a high risk…[DGPZ] …will not receive necessary mental health support treatment in Turkey, that his deterioration is unlikely to be detected without close supervision, and that he is at risk of death through self neglect if he re-lapses…;’

(f)    Given DGPZ’s history of drug use and deprived of the family and professional supports available to him in Australia, he ‘might seek out drugs to alleviate his stress.’ In that event, ‘drug laws in Turkey are harsh…[and DGPZ]…may likely become involved with the criminal justice system there,’ with country information confirming ‘harsh and degrading treatment in Turkish prisons and places of detention, including torture and assaults. It is further submitted that ‘current country information confirms the failure of Turkish authorities to provide health and mental health services in Turkish prisons and places of detention;’

(g)    DGPZ’s status as a ‘criminal deportee’ from Australia will only increase his risk profile with Turkish authorities;

(h)    DGPZ is ‘at risk of significant harm in the form of arbitrary deprivation of his life, torture and cruel, inhuman and degrading treatment of punishment at the hands of Turkish authorities;’

(i)    DGPZ has ‘no financial resources to draw on,…very limited if any access to welfare in order to subsist…nowhere to live in Turkey and…no source of income from employment.’ It is submitted that ‘Turkey’s social security system appears to be primarily based on financial contributions made by a person during their working life in Turkey while employed or self-employed, and as DGPZ ‘has negligible work history in Turkey, he does not appear to meet the qualifying requirements for any pension or benefit payments under this system;’

(j)    DGPZ has no close family in Turkey to support him and ‘will be devastated to be separated from his two children and his only sibling’ and her children;

(k)    DGPZ’s ‘Turkish language skills are limited and he is not accustomed to Turkish culture, having lived almost all of his life in Australia;’

(l)    A March 2016 academic article refers to community mental health centres (“CMHC”) not meeting minimum standards in service delivery, with high turnover of personnel impacting system sustainability;

(m)    A July 2014 report by the ‘Daily News’ references a 2013 non-government organisation report on the provision of mental health services in Turkey between 2011 and 2013. The Tribunal notes this media report is over five years old and purports to describe provision of mental health services in Turkey between seven and nine years ago;

(n)    If DGPZ was found to be owed non-refoulement obligations and could not be returned to Turkey, the ‘only other logical option under law’ is that he ‘would be held in indefinite detention.’

(Footnotes omitted.)

65    In [98(m)] of the Tribunal’s reasons, there is a footnote referring to [142] of the ASFIC. It is evident that the Tribunal considered, not only the contention at [142] of the ASFIC, but also the document referred to in that paragraph. The Tribunal referred in [98(m)] to a “July 2014 report by the ‘Daily News’”. The name of the newspaper and the month of the newspaper article were not mentioned in [142] of the ASFIC, but are apparent from the newspaper article itself (a copy of which appears at page B459 of the Court Book).

66    The Tribunal went on to state, at [98(m)], that it “notes this media report is over five years old and purports to describe provision of mental health services in Turkey between seven and nine years ago”. Contrary to a submission advanced by the applicant in the present proceeding, this is not a case of the Tribunal merely “noting” a submission. Although the Tribunal used the word “notes” it was in fact providing a reason for discounting the weight to be attributed to the report prepared by the non-government organisation and thus was engaging with the submission.

67    Secondly, having summarised the applicant’s submissions concerning international non-refoulement obligations, the Tribunal discussed the judgment of the Full Court in Omar, indicating the Tribunal’s awareness that “[a] decision-maker must meaningfully consider any clearly-articulated claims of harm, including those that may enliven Australia’s non-refoulement obligations” (Tribunal’s reasons, [104]). While the question in the present case is whether or not the Tribunal satisfied this requirement, it is nevertheless relevant to note that the Tribunal correctly understood its task.

68    Thirdly, at [108], the Tribunal gave consideration to the applicant’s contentions concerning his mental health issues and the treatment of such issues in Turkey. The Tribunal stated:

If repatriated to Turkey the Tribunal accepts DGPZ is likely to experience a very difficult transition and have a comparatively lesser entitlements to things like healthcare and income support. That being said, the Tribunal is unpersuaded by submissions that if DGPZ suffered a relapse in his mental health, or relapsed into drug use, or became homeless, there was a ‘real chance’ basic services would be withheld by Turkish authorities or that he may suffer serious harm if imprisoned. Those submissions are speculative and absent any corroborating evidence of why Turkish authorities would treat DGPZ differently to any other Turkish citizen. That is particularly so given the evidence that DGPZ was previously admitted as an inpatient in Turkey in 1993 due to mental health issues. In a similar vein, the submission about why someone with hearing loss, or latent Tuberculosis or Hepatitis C, or who has overcome a drug addiction, or who has been convicted of offences overseas, might be physically assaulted, tortured or killed, is similarly absent a persuasive linkage to the specific circumstances of DGPZ’s case.

(Footnote omitted.)

69    It is true that, as the applicant points out, the second sentence refers only the applicant’s submissions that services would be “withheld” and that he may suffer serious harm “if imprisoned”, and does not refer to mistreatment in the course of mental health treatment. However, this needs to be read in the context of the Tribunal’s earlier reasons, at [98(m)], which discounted the weight of the material concerning mistreatment.

70    Fourthly, at [110], the Tribunal expressed conclusions regarding the applicant’s relevant contentions generally, including the claim that he would suffer mistreatment if his mental health relapsed. The Tribunal stated at [110]:

The Tribunal is not satisfied on the available evidence that DGPZ has a well-founded fear of being persecuted because of factors like race, religion, nationality, membership of a particular social group, or political opinion. Nor does the evidence reliably support the existence of a ‘real risk’ he would be subjected to significant harm within the meaning of s 36(2A) of the Act if repatriated, due to things like denial of treatment, or discrimination because of any medical condition, or past drug addiction, or convictions in Australia, or because of language or cultural impediments causing his circumstances to be misunderstood. That is not to say that some people in Turkey won’t have a negative perception or lack of understanding about DGPZ’s circumstances should he choose to reveal them, or who may make insensitive comments. That would not rise to a level of discriminatory or degrading treatment or punishment or extreme humiliation such as to constitute significant harm.

(Footnote omitted.)

71    In the context of the Tribunal’s summary of the applicant’s relevant contentions at [98], the Tribunal’s conclusions at [110] are fairly read as being addressed to all of those contentions.

72    Fifthly, the Tribunal gave further consideration to the treatment of those with mental health issues in Turkey, in the section of its reasons concerning the extent of impediments if removed (at [120]-[131]). The Tribunal stated at [123]:

The Tribunal has considered the latest Department of Foreign Affairs and Trade (“DFAT”) Country Report for Turkey dated 9 October 2018, which is considered an authoritative and unbiased source of information. It states that Turkey ‘spends less on health care as a proportion of GDP than any other OECD member,’ and while patients ‘are no longer obliged to make contributory payments when visiting primary health providers, they are obliged to make flat rate out-of-pocket payments when receiving medications and outpatient services in public hospitals,’ which ‘inhibit access to health care by the poor.’ The Tribunal also notes the following references in the report:

(a)    The public policy changes implemented by the Turkish Government have increased the workload on physicians, resulting in ‘dissatisfaction at perceived low levels of service;’

(b)    As of October 2015, over four years ago, there were 86 CMHC operating nationwide in Turkey; and

(c)    Complaints have been received about the provision of mental health services in Turkey, including that: ‘Observers claim the CMHCs are inadequately funded, and that the number of psychiatrists and other mental health professionals per capita is well below European Union averages.’

(Footnotes omitted.)

73    In the above paragraph, the Tribunal relied on the DFAT Report as providing the most up-to-date and authoritative description of the treatment of those with mental health issues in Turkey. It was open to the Tribunal to rely on this report in preference to the non-government organisation report (of 2013) as described in the July 2014 Daily News article.

74    The Tribunal further considered the nature of the mental health services available in Turkey at [128], [129] and [130] of its reasons. Those paragraphs constitute further engagement with the issue of the treatment of those with mental health issues in Turkey.

75    Sixthly, it is relevant to have regard to the way in which the applicant’s contentions were expressed in the ASFIC. While the applicant’s submissions in the present proceeding focus on the claim at [142] of the AFSIC that the applicant would suffer mistreatment if his mental health relapsed in Turkey, this was just one of many contentions advanced on behalf of the applicant in the section of the AFSIC concerning international non-refoulement obligations. While the Tribunal was obliged to consider each substantial and clearly articulated contention, it is important to keep in mind that the Tribunal was dealing with all of the contentions set out in that section of the ASFIC, not only the mental health mistreatment claim.

76    In my view, having regard to the matters set out above, the Tribunal did meaningfully engage with the applicant’s mental health mistreatment claim. For these reasons, the applicant’s ground of judicial review is not made out.

Conclusion

77    It follows that the application is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also order that the applicant pay the Minister’s costs of the proceeding, to be fixed by way of a lump sum.

Associate:

Dated:    30 October 2020