Federal Court of Australia
Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 58
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. A writ of certiorari be issued quashing the decision of the second respondent dated 3 August 2020.
2. The matter be remitted to the second respondent, differently constituted, for re-determination according to law.
3. The question of costs be reserved.
4. Within seven days of the date of these orders, the applicant file and serve a written submission limited to two pages on the question of whether costs should be payable by the first respondent directly to counsel for the applicant pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth).
5. Within seven days of being served with the applicant’s submission referred to in order 4, the first respondent file and serve a written submission limited to two pages in response to the matters raised in the applicant’s submission.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BURLEY J:
[1] | |
[10] | |
[24] | |
[24] | |
[26] | |
[29] | |
[48] | |
[48] | |
[50] | |
[52] |
1 The applicant, Sanjay Kwatra, is a 56 year old Indian national who first arrived in Australia in 1996 at the age of 32. Prior to its cancellation, he resided in Australia on a Class BB Subclass 155 Five Year Resident (Permanent) visa. He has an extensive criminal record. His offending commenced shortly after he arrived in Australia. Much of his offending was of a similar character. He was sentenced to imprisonment on several occasions, his two most recent sentences being imposed firstly in January 2019, when he was convicted of making vexatious calls to an emergency service, breaching bail conditions and contravening a community corrections order, and secondly in March 2019, when he was convicted of making false and vexatious calls to an emergency service and failing to comply with a sentencing order. For the second of these he was sentenced to 18 months in prison.
2 Mr Kwatra’s visa was cancelled on 6 June 2019 under s 501(3A) of the Migration Act 1958 (Cth) on the basis that a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was satisfied that he did not pass the character test under s 501(6)(a) of the Act.
3 Section 501CA of the Act relevantly provides:
Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(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.
…
(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.
…
4 Mr Kwatra made representations in accordance with s 501CA(4)(a), but a delegate of the Minister was not satisfied that there was another reason why the original decision cancelling the visa should be revoked. Mr Kwatra then applied to the Administrative Appeals Tribunal for a review of that decision. On 3 August 2020 the Tribunal affirmed the decision of the delegate.
5 Mr Kwatra now applies for judicial review of the decision of the Tribunal. As the Tribunal’s decision was made following an application for review under s 500(1)(ba) of the Act, s 476A(1)(b) of the Act grants this court, and not the Federal Circuit Court, original jurisdiction with respect to the Tribunal’s decision.
6 In this court, Mr Kwatra was represented by Mr C. Fairfield of counsel, who sought leave at the hearing to rely on two grounds of review:
(1) The Tribunal failed to carry out its statutory task of review with respect to assessing if the applicant’s representations as to impediments he may face upon his return to India constituted ‘another reason’ for revoking cancellation pursuant to s 501CA(4) of the Act; and
(2) The Tribunal misconstrued and misapplied Direction 79 by conflating its consideration of (a) the weight to be given to the “Expectations of the Australian Community” in sub-clause 13.3; and (b) whether to affirm or revoke the visa cancellation decision.
7 The Minister, who was represented by Mr N. Wood of counsel, opposes the application. Both parties filed written submissions in advance of the hearing and presented oral argument.
8 Ground 1 focusses entirely on the contention that Mr Kwatra, who was unrepresented before the Tribunal, claimed that because of his ill health he would be at risk of harm in India from COVID-19 and that the Tribunal failed to address this claim. Ground 2 concerns a narrow aspect of the exercise by the Tribunal of its discretion to attribute weight to competing factors for and against revoking the visa cancellation decision.
9 For the reasons set out below, I find that ground 1 is made out, but ground 2 is not. Accordingly, I make orders remitting the matter to a differently constituted Tribunal for reconsideration according to law.
2. THE REASONS OF THE TRIBUNAL
10 The Tribunal summarised the relevant background to Mr Kwatra’s arrival in Australia and his extensive criminal record. It surveyed his offences over the period from 2002 to 2019. After referring to the legislative framework in which s 501CA sits, the Tribunal identified and quoted from Direction 79, being a written direction from the Minister entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”, and then referred to the evidence that Mr Kwatra called during the hearing. It specifically identified his claims to suffer from depression/anxiety and PTSD as well as degenerative spinal condition, type 2 diabetes, distorted vision and hypertension. It noted that prior to entering prison, he was in receipt of a disability support pension. The Tribunal also referred to the independent medical evidence which supported aspects of these claims.
11 The Tribunal then referred to the primary considerations prescribed by Direction 79, being the nature and seriousness of the conduct, the risk to the Australian community should Mr Kwatra commit further offences or engage in other serious conduct, the best interests of minor children and the expectations of the Australian community.
12 In the context of the last of these, the Tribunal found, at [103], that Mr Kwatra had acted contrary to the expectations of the Australian community by repeatedly failing to obey Australian laws and, at [104], that this “weighs substantially in favour of not revoking” his visa cancellation.
13 The Tribunal also referred to “other considerations” identified in paragraph 14 of Direction 79, which include Australia’s international non-refoulement obligations. It was in this context that the Tribunal addressed the considerations raised under paragraph 14.5 of Direction 79, which concerns the extent of the impediments that Mr Kwatra may face if removed from Australia to India and, in particular, the expected effect on his medical condition and employment prospects. It had earlier noted that Mr Kwatra’s conduct in many of the incidents of criminal behaviour for which he was convicted was heavily influenced by his consumption of alcohol and that his mental health conditions contributed to his alcohol abuse. The Tribunal also found that an important aspect of any measure taken to address Mr Kwatra’s alcohol abuse was access to treatment for his mental condition, but that there was limited evidence that he had received proper professional help with his underlying mental health issues. It was not satisfied that Mr Kwatra’s mental health condition had been properly assessed and diagnosed, or that it had been effectively treated.
14 The Tribunal found at [118]:
The applicant is 56 years old. He came to Australia when he was 32 years old. He last visited India in 2002. He has no immediate family or friends living in India, although he has extended family including several cousins but he has not had contact with any of them since coming to Australia in 1996.
15 In relation to his health, the Tribunal found at [119]:
The evidence establishes that the Applicant has significant health issues, although considered objectively, the evidence does not fully support the extent of the disability claimed by the Applicant. His GP has diagnosed the following conditions: depression, type 2 diabetes, hypercholesterolemia, hypertension and cervical spondylosis. In addition, the Applicant claims to have a vision impairment in his right eye.
16 The Tribunal expressed some doubts as to the extent of the applicant’s limitations, but nonetheless accepted that Mr Kwatra has “significant health issues which require ongoing treatment” (at [123]).
17 In considering his return to India, the Tribunal referred to DFAT country information dated October 2018, and quoted it as stating that India’s health system faces “a number of challenges including a diverse health profile, an acute shortage of infrastructure and lack of skilled health sector workers...” (at [124]). It concluded on this subject at [125]:
The Tribunal is satisfied that there are substantial limitations in the health care services available in India which would impose a significant impediment for the Applicant in establishing himself and maintaining basic living standards if he were to be deported to India.
18 The Tribunal then considered Mr Kwatra’s employment prospects. In this regard it noted that there are significant factors which would impede his ability to secure employment, including his poor employment record, the fact that he has not been in paid employment since 2008, his criminal record, his age, his lack of contacts or a network in India and, relevantly, his physical and mental health problems. It was satisfied that he is likely to have difficulty finding paid employment in India and that without it he would have no access to unemployment relief. The Tribunal concluded at [131]:
Considering all of these factors and the Applicant’s vulnerability due to his physical and mental health issues, the Tribunal is satisfied that it is likely he would struggle to establish himself and maintain basic living standards (in the context of what is generally available to other citizens) if he returned to India. This consideration weighs in favour of revocation, and the Tribunal gives it substantial weight.
19 In its conclusions, the Tribunal noted that Mr Kwatra presented as an intelligent and articulate person, but with evident vulnerability. It also noted that he has a long and serious criminal history, but expressed the view at [133] that:
...he is not an evil man. He has had a troubled life and has been affected by mental illness which has contributed to his alcohol abuse, which has in turn been the catalyst for much of his offending.
20 It is relevant to ground 2 of the review to set out the following passages of the Tribunal’s reasons which appear under the heading “Factors Against Revocation”:
136 The Tribunal is satisfied that the Applicant’s past criminal offending was serious and there is significant risk that the Applicant will commit further offences of a serious nature or engage in other serious conduct if released into the Australian community. This represents a risk to the welfare of the Australian community. The welfare of the Australian community is a primary consideration under Paragraph 13.1 of the Direction and the risk of re-offending weighs heavily in favour of not revoking the cancellation of the Applicant’s visa.
137 Similarly, the expectations of the Australian community are a primary consideration. The Applicant has acted contrary to the expectations of the Australian community by failing repeatedly to obey Australian laws while in Australia and this consideration weighs substantially in favour of not revoking the Applicant’s visa cancellation.
138 However, in assessing the overall question of whether there is another reason to revoke the cancellation of the Applicant’s visa, the Tribunal is not necessarily bound by the expectations of the Australian community. The Court noted in FYBR v Minister for Home Affairs that the paragraph:
…recognises that the government’s assessment of the expectations of the Australian community is that a non-citizen who has committed a serious offence should not be granted a visa. Strictly speaking, it is not correct to say that the expectation is one to which the Tribunal “must give effect”. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do.
139 In weighing this primary consideration, the Tribunal is mindful that the Applicant’s offending was affected by his underlying mental health condition and his inability to control his excessive consumption of alcohol. Whatever the exact nature of the Applicant’s mental health condition, it is clear that he is an insecure and vulnerable person who acted primarily in response to his own insecurities. Aside from the two assault offenses against his ex-wife prior to 2005, both of which attracted modest penalties, his other offending did not exhibit animosity toward any other member of the Australian community.
140 These factors do tend to diminish the weight which should be attributed to the primary considerations weighing in favour of cancellation, but the principles in paragraph 6.3 of the Direction make it clear that to remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community, and a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in, Australia.
(citations omitted)
21 In assessing the “Factors in favour of Revocation”, the Tribunal noted that Mr Kwatra’s ties to Australia should be given little weight (at [143] – [144]). However, it found that:
145 The principal consideration weighing in favour of revocation is the impediment the Applicant would suffer in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens) if he returned to India. The Tribunal does not underestimate the difficulties the Applicant would be liable to face if he returned to India. He is a vulnerable person emotionally and physically. He has no assets or personal contacts in India and he has significant limitations on his ability to obtain employment. The Applicant’s future welfare weighs heavily on the Tribunal and it gives this consideration substantial weight.
22 The Tribunal then concluded:
149 Weighing up each of these factors and taking account of the fact that the two factors against revocation are primary considerations, the Tribunal is satisfied, on balance, that the factors which favour revocation do not outweigh the other factors. As a consequence, the Tribunal is not satisfied that there is another reason to revoke the cancellation of the Applicant’s visa pursuant to s 501CA(4)(b)(ii) of the Act.
23 Nowhere in its substantive reasons does the Tribunal refer to the COVID-19 pandemic, or its effect on the healthcare system in India, or its likely or possible effect on Mr Kwatra should he be deported to India during the currency of the pandemic.
3. GROUND 1: FAILURE TO CARRY OUT STATUTORY TASK
24 In ground 1, Mr Kwatra contends that he made a clear claim that it would not be safe for him to return to India because of the COVID-19 pandemic and that the Tribunal failed to consider this claim. He submits that the Minister’s representative made no reference to this claim at the hearing and that the Tribunal failed to refer to it in its reasons. He also submits that, on the basis of the matters which the Tribunal found and accepted, Mr Kwatra could not only be at significant risk of harm in India from COVID-19 but also could be at greater risk than other members of the Indian community. He contends that his claims were significant and were sufficiently raised and expressed so as to require the Tribunal to address them, citing in particular Hernandez v Minister for Home Affairs [2020] FCA 415 (Charlesworth J) and MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215 (Jagot, Kerr and Anastassiou JJ).
25 The Minister disputes that the Tribunal fell into jurisdictional error. He submits that Mr Kwatra’s few, passing references to the COVID-19 pandemic in the course of the Tribunal review did not comprise clearly articulated claims in need of resolution and, accordingly, did not acquire the character of mandatory relevant considerations, citing particularly EVK18 v Minister for Home Affairs [2020] FCAFC 49; 274 FCR 598 (Flick, Griffiths and Moshinsky JJ) and AXT19 v Minister for Home Affairs [2020] FCAFC 32 (Flick, Griffiths and Moshinsky JJ). The Minister submits that Mr Kwatra’s references to the COVID-19 pandemic were at best assertions about a sub-issue as to impediments that he may face in India, and that they were not of such objective significance or pivotal relevance that it could be said that the absence of a finding by the Tribunal demonstrates that they had not been considered, citing Guclukol v Minister for Home Affairs [2020] FCAFC 61 (Katzmann, O’Callaghan and Derrington JJ). In the alternative, the Minister submits that even if the Tribunal did fail to consider matters raised, the failure to do so was not material, citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 and PQSM v Minister for Home Affairs [2020] FCAFC 125; 382 ALR 195 (Mortimer, Banks-Smith and Jackson JJ).
26 Mr Kwatra represented himself before the Tribunal. In both his written and oral submissions, he raised the issue of his health and the risk to him of COVID-19 infection if returned to India.
27 In his written submissions he said:
26 I am 56 years old, I have chronic pre-existing medical and mental health issues that affect my daily life. These include diabetes, hypertension, hypercholesterolemia, anxiety disorder, depression, PTSD, severe osteoarthritis, cervical spondylosis, sciatica and macular degeneration with vision impairment in my right eye. My mental health is also an ongoing issue...
...
29 I have not visited India in the last 18 years since 16-10-2002. I do not have a family and friends in India who can help and support me in India. In Australia, I have got many friends who are concerned about my welfare and willing to support me. I have got employment prospects in Australia with all the support services available.
30 The lack of medical treatment, social and economic support in India at this age of 56 with all these medical issues will cause a serious decline in my health and will pose a serious life-threatening condition.
...
32 My Mental Health Social worker Mr Johny Mattom expresses his concern that I have no friends and family in India. I do not have a house or belongings in India. I won’t be safe in India under my current mental condition.
33 I would not be safe in India because of COVID 19 pandemic. The spread of the virus and the death toll is rising day by day. I have an underlying medical condition especially diabetes. I am susceptible to infection from the widespread of COVID 19 in India.
(emphasis added and citations omitted)
28 At the hearing, Mr Kwatra emphasised that in India he would not have job prospects or access to social welfare, and he would not be able to afford medical assistance. He reiterated his concerns arising from COVID-19 in India in his oral submissions:
I have been living in this country for 24 years, which is sparsely populated here in Australia and if we talk about corona virus - or Covid-19 the condition is in India is worsening day by day because of the population - the spread is there - there is more spread and I have got that - these medical condition, I am susceptible to all these infections. I will not be able to - sorry sir, I will not be able to foresee or will be able to - what can I say, I will not be able to withstand with the prevailing undergoing conditions in India, which is too much polluted also. If we talk about - I was born in - born and brought up in Delhi, we talk about Delhi. I mean, in that overcrowded, thickly populated, 24 years ago was a different thing but now it’s a growing overpopulated city and how can I access services, where will I have - get grocery, food to eat - water – what will be the shelter - with nobody to know - no acquaintance even, if we don’t talk about friends - there’s no acquaintance even sir.
29 The primary issues for determination are whether a sufficiently clear claim was made by Mr Kwatra concerning dangers to his health arising from the COVID-19 pandemic such that the Tribunal fell into error by failing to consider and address it and, if so, whether that error was material.
30 In MQGT at [20] the Full Court quoted the following passage from the decision in Hernandez:
16 As the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) said in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569, representations made by a non-citizen in response to an invitation given under s 501CA(3) of the Act “play a central role in the relevant statutory regime”. The Court said (at [34(g)]):
…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.
17 The Court went on to say (at [36(d)]) that although s 501CA(4) is expressed in terms containing no express duty to “consider” the non-citizen’s representations “it is necessarily implicit in the statutory regime that there is such an obligation”.
18 The Minister is obliged to “engage in an active intellectual process with significant and clearly expressed representations” made in support of a revocation request: Omar at [37].
19 Whether a particular matter raised in the representations is significant and clearly expressed so as to give rise to that obligation is a question of fact. As Colvin J said in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 56 at [68] (in a passage approved by the Court in Omar at [34(i)]):
...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.
20 As to the practical content of the obligation, the Court in Omar said (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).
31 In summarising the conclusions reached in Hernandez, the Full Court in MQGT at [21] noted with approval that Charlesworth J found:
(1) the obligation of consideration arose despite the fact that “the representations made by Mr Hernandez display a lesser degree of detail and were accompanied by no country information of the kind supporting the claims made in Omar”: [24];
(2) Mr Hernandez’s claims (that he was a prime target for mafia groups rendering him at risk of being kidnapped for ransom and murdered) may have been briefly stated but they were not ambiguous. The brevity did not affect the clarity of the claims or the significance of their subject-matter: [25]; and
(3) the fact that the claims were not supported by objective country information does not render them insignificant so as to relieve the Minister of the obligation to consider them. Rather, “[t]he absence of corroborative evidence may legitimately bear on the manner in which such claims are considered and determined, but could not (at least on the facts of this case) justify the issue raised in the claim being ignored”: at [26].
32 In his submissions, the Minister emphasised the need to identify what was being advanced as a claim, and the distinction between firstly, a statement that may have been made in passing by a claimant and, secondly, a clearly articulated claim in need of resolution. In this regard he relied upon EVK18 where Flick, Griffiths and Moshinsky JJ said:
14 In GBV18 the Full Court referred to the need for a “representation” to “clearly express” a claim: [2020] FCAFC 17 at [32(d)]. In seeking to identify those “representations” which required the consideration of the decision-maker, the Court there also used a number of like expressions such as a “clearly articulated and substantial or significant representation” and “a substantial or significant and clearly articulated claim” (GBV18 [2020] FCAFC 17 at [32(e) and (f)]). The same Full Court in AXT19 v Minister for Home Affairs [2020] FCAFC 32 subsequently returned to the importance of identifying those claims which may be found within a “representation” made pursuant to s 501CA(3) which attracted the need for consideration as follows:
[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.
The balance that is sought to be struck is to recognise that a “representation” which has been made pursuant to s 501CA(3) may contain a myriad of different claims and assertions and should not be dissected for the purpose of forensically and opportunistically subsequently seizing upon a failure to address a particular “statement” that may be found within a representation as exposing legal error (cf. BHA17 [2018] FCAFC at [139], (2018) 260 FCR at 562), whilst at the same time recognising that a “representation” may not be drafted with the skill of an experienced legal practitioner.
33 The Minister further emphasised the difference, identified in EVK18 at [25] and [26], between a bare assertion made by an applicant which lacks factual material in support, and a clearly articulated claim put before the relevant decision maker.
34 The question of whether or not Mr Kwatra’s claim to fear harm as a consequence of COVID-19 amounted to a “clearly articulated and substantial or significant representation”, such as to give rise to an obligation on the Tribunal to consider and address it, is a fact sensitive enquiry, to which I now turn.
35 Mr Kwatra was plainly concerned about the health implications of his return to India. He raised that in a general sense, but also in the context of the COVID-19 pandemic. He did so in advance of the hearing in his written submissions, saying that he “would not be safe in India because of COVID 19 pandemic”, referring to his underlying medical conditions and claiming that he was “susceptible to infection from the widespread of COVID 19 in India”. His concern was repeated in his oral submissions at the hearing.
36 There was nothing ambiguous in these claims. As the decisions to which I have referred make clear, it is not necessary for an applicant to provide extended written or oral submissions on a topic for it to be sufficiently clear that a serious representation is being made. In the present case, the claim advanced was both clear and direct, and made as an independent reason beyond his general health concerns and the inadequacy of the Indian medical system to address them. It was a particular reason advanced as to why the cancellation decision should be revoked in response to the invitation extended to him under s 501CA(3).
37 Furthermore, the claim was supported by the evidence of his medical condition, much of which was accepted by the Tribunal (at [119]). Contrary to the submission advanced by the Minister, it was not necessary for Mr Kwatra to support the concerns raised by further documentary or other evidence in order for it to be characterised as a claim requiring a response. The claimed risk of harm required consideration by the Tribunal in the sense described by the Full Court in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 and Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589, and in Hernandez; see also MQGT at [21(3)] (set out at 31 above).
38 In his submissions, the Minister suggested that Mr Kwatra’s claim to feared harm due to COVID-19 in India was more in the nature of a bare assertion than a clearly articulated claim in need of a specific finding by the Tribunal. This was said to be illustrated by the fact that Mr Kwatra had not placed material of any weight before the Tribunal addressing the incidence or impact of COVID-19 in India, nor how the situation in India compared to that in Australia. Nor had, in the Minister’s submission, Mr Kwatra adequately explained why he was particularly vulnerable to infection or disease as a result of the pandemic. Having regard to the brief, assertive nature of Mr Kwatra’s “few passing references to the COVID-19 pandemic”, the Minister submits that it is difficult to see how the Tribunal could have made more detailed or specific findings than it did and that, consequently, the court should not conclude that the Tribunal failed to consider the applicant’s references to the COVID-19 pandemic.
39 I disagree. Although brief, the references to which I have referred were not passing. To characterise them as such is to diminish the matters raised, which I regard as being substantial or significant. The practical content of the obligation to engage in an active intellectual process with substantial or significant representations about the risk of harm requires, as the Full Court said in Omar, the Tribunal to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to the evidence and other material on which those finding are based. Further, as Charlesworth J found in Hernandez, whilst it may legitimately have been open to the Tribunal, in its assessment of the merit to Mr Kwatra’s claim, to consider the dearth of supporting evidence identified in the Minister’s submissions, given the clear manner in which the claim was raised, it was not open to the Tribunal to ignore it on the basis of the supporting evidence provided (or lack thereof). The Tribunal ought to have addressed the claim, but did not. Indeed, it did not refer, at all, to the consequence of COVID-19 on Mr Kwatra’s medical condition should he be returned to India.
40 The fact that the claim was both significant or substantial and clearly raised, and that it was not addressed in the Tribunal’s reasons, leaves open the inference that the claim was not considered by the Tribunal. Taking account of the factual circumstances addressed above, I infer that the Tribunal failed to consider Mr Kwatra’s claim to feared harm due to COVID-19 in India as it was required to do.
41 The remaining question is whether the Tribunal’s failure to consider the claim was material to its decision not to revoke Mr Kwatra’s visa cancellation.
42 In this connection, the Minister submits that even if the Tribunal did fail to consider the claim, there is no realistic possibility that its consideration would have led to a different decision; that is, the Tribunal’s failure was immaterial. He submits that it is “fanciful” to think that if the Tribunal did consider the claim, that it could have taken the matter any further for Mr Kwatra given the Tribunal ultimately concluded that it was “likely” Mr Kwatra would struggle to establish himself in India and gave this consideration substantial weight (at [131]).
43 In SZMTA, the majority of the High Court (Bell, Gageler and Keane JJ) defined a material breach as being one where it can be shown that, if it were avoided, it is realistic that a different decision would have been reached:
45 Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
44 In DQM18 v Minister for Home Affairs [2020] FCAFC 110, a case concerning, inter alia, whether an error made during a review under s 501CA(4) was material to a decision not to revoke the cancellation of a visa, Bromberg and Mortimer JJ explained that:
113 Where questions of weight are involved, and a representation raised by a person is a matter of real and not marginal or fanciful relevance to the statutory task, this Court on review is unlikely to be able to conclude one way or the other what weight might have been given to that representation in the discharge of the statutory task, had the representation been approached rationally and on the basis of probative material. A reviewing court is unlikely to be able to conclude the outcome could not have been different, which is in substance the exercise the Minister asks the Court to perform.
45 In that context, Bromberg and Mortimer JJ suggested at [114] that the adjective “realistic” in the statements of principle by the majority in the High Court in SZMTA is used to distinguish the assessment of (1) a situation where there is a possibility of a different outcome; that is, a breach involving a material error, from (2) a situation where the possibility of a different outcome is fanciful or improbable; that is, a breach involving an immaterial error, and no more than that.
46 In my view, a material claim was made concerning Australia’s non-refoulement obligations where an identified risk of harm to Mr Kwatra upon his return to India was not considered. The Tribunal exercised its power without regard to whether the risk existed or not, and without any assessment of its magnitude or the consequences for Mr Kwatra should the risk materialise. As advanced, Mr Kwatra’s claim was substantial or significant and clearly raised, the acceptance of which could, realistically, when weighed with other factors, provide “another reason” for revoking the visa cancellation within s 501CA(4) of the Act. I am satisfied that a different decision might have been made had there been active intellectual engagement with the claim in compliance with the conditions on the existence of the Tribunal’s power. Accordingly, the error is material and properly characterised as jurisdictional.
47 Ground 1 of the review should be upheld.
4. GROUND 2: TRIBUNAL MISCONSTRUED DIRECTION 79
48 In ground 2, Mr Kwatra contends that the Tribunal misapplied Direction 79 by conflating its consideration of the weight to be given to the “Expectations of the Australian Community” in sub-clause 13.3 and whether to affirm or revoke the visa cancellation decision. In the particulars appended to this ground he refers to [104], [137] – [141] of the Tribunal’s reasons.
49 Although somewhat Delphic, Mr Kwatra’s submission appears to be that the Tribunal misapplied Direction 79 in ascribing substantial weight to be given to the expectations of the Australian community at [104] and [137]. He contends that, whilst the Tribunal acknowledged that in assessing the weight to be given to community expectations, it was not necessarily bound by them (citing FYBR v Minister for Home Affairs [2019] FCAFC 185; 74 ALR 601 (Charlesworth J) at [79]), the Tribunal did not go ahead and conduct an assessment to that effect, and thereby failed to take into account the substantial weight it had attributed to the difficulties that he would face if he were to return to India.
50 It seems to me that Mr Kwatra’s submission fails to take account of the whole of the reasoning process of the Tribunal. In its reasons at [101] – [103] and [137] and [140], the Tribunal accepted that clause 13.3 of Direction 79 deemed the expectations of the Australian community to be that Mr Kwatra should not hold a visa. In [138] it accepted, by reference to FYBR, that it was not bound to give effect to those deemed expectations and, on the facts of the case, determined that it would give them substantial weight (at [137] and [141]). It was open to the Tribunal to do so. It was not necessary, in reaching that subordinate conclusion, to revisit, or set out, all of its other findings. As I have noted above, at [142] – [145] the Tribunal set out the factors in favour of revocation of the cancellation decision. In so doing, it referred at [145] to the impediments that he would face in establishing himself and maintaining basic living standards if returned to India. At [149], it weighed all of these factors in reaching its conclusions.
51 I detect no error in this approach. Accordingly, ground 2 must be dismissed.
52 For the reasons set out above, ground 1 of the application is allowed, but ground 2 is dismissed. The consequence is that orders will be made quashing the decision of the Tribunal and requiring a differently constituted Tribunal to determine the application according to law. The Minister must pay Mr Kwatra’s costs of the application.
53 Mr Kwatra was represented by counsel who accepted the brief pursuant to a pro bono referral certificate issued by a Judicial Registrar of this court. I consider that it may be appropriate for an order to be made that, pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth), the costs of the proceedings be payable directly to counsel for Mr Kwatra. In these circumstances, I will reserve the question of costs and invite submissions from Mr Kwatra within seven days on the question of whether such an order would be appropriate and a response from the Minister within seven days thereafter. In the event that there is no dispute that costs should be payable directly to counsel for Mr Kwatra, I will make the following order:
The first respondent pay the applicant’s costs of the proceedings, such costs to be payable directly to counsel for the applicant in accordance with r 4.19(3) of the Federal Court Rules 2011 (Cth).
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. |
Associate:
