Federal Court of Australia

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    Mr Bettencourt applies for judicial review of a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, such review being permitted in accordance with s 476A(1)(c) of the Migration Act 1958 (Cth). The decision in respect of which Mr Bettencourt seeks judicial review is one made under s 501CA(4) of the Act not to revoke the cancellation of his Class BF Transitional (Permanent) visa.

BACKGROUND

2    The relevant background is not in dispute. It may be summarised as follows.

3    Mr Bettencourt is a citizen of Portugal. He arrived in Australia from Portugal on 5 March 1988 when he was eight years old. He was granted a Class BF Transitional (Permanent) Visa on 1 September 1994, and has held it since that time.

4    On 15 August 2019, Mr Bettencourt was convicted of possessing child exploitation material, and was sentenced to 14 months imprisonment. On 20 November 2019, a delegate of the Minister cancelled Mr Bettencourt’s visa pursuant to s 501(3A) of the Act.

5    On 26 November 2019, Mr Bettencourt made a request that the Minister revoke the decision to cancel Mr Bettencourt’s visa.

6    On 11 May 2020, Mr Bettencourt’s solicitors made representations to the Minister in support of this request, which included submissions that Mr Bettencourt:

(a)    has lived in Australia for 32 years and had not left since arriving in 1988;

(b)    has two young daughters in Australia, and a large extended family, in particular, an autistic nephew with whom he shares a close bond;

(c)    has a strong work and community engagement history;

(d)    had no related previous criminal history;

(e)    feels strong remorse and actively engaged in rehabilitation;

(f)    has a low risk of reoffending;

(g)    has significant mental health issues which include a risk of suicide which would increase should he be removed from Australia; and

(h)    has no family in Portugal and does not speak Portuguese.

7    On 13 October 2020, the Minister decided not to revoke the cancellation of Mr Bettencourt’s visa under s 501CA(4) of the Act. Mr Bettencourt seeks judicial review of that decision.

GROUNDS OF JUDICIAL REVIEW

8    Mr Bettencourt relies upon two grounds of review. These are:

1.     The Minister failed to perform his statutory task by failing to give proper, genuine and realistic consideration to, or to engage in an “active intellectual process” with, the Applicant’s representations about the harm he would suffer if he had to return to Portugal. This failure included failing to consider the high suicide risk of the Applicant.

Particulars

1.1     A representation was made to the Minister that Mr Bettencourt was a genuine suicide risk. Representations were made that if he were returned to Portugal, he was at risk of committing suicide.

1.2     The Minister dealt with the claim by stating “Mr Bettencourt will have equal access to health care and other services as other citizens of Portugal. I accept that removal to Portugal may result in a deterioration of Mr Bettencourt’s health, including his mental health and increase his risk of suicide” and “I note that public health services, including mental health services, are available in Portugal. I acknowledge however that the quality of health services available to Mr Bettencourt in Portugal may not be comparable to those available in Australia.”

1.3     The Minister failed to engage meaningfully with the applicant’s claims as to the risks of harm he would face if returned to Portugal because of his mental health. The Minister simply accepted that removal to Portugal may result in a deterioration of the applicant’s health, including his mental health and increase his risk of suicide. There was no factual finding or analysis underpinning this conclusion and no active intellectual engagement with, or genuine evaluation of, the Applicant’s circumstances.

2.     The Minister erred in failing to exercise his statutory jurisdiction under s 501CA of the Migration Act 1958 in that he failed to give proper, genuine and realistic consideration to representations made by the Applicant regarding the best interests of his two children.

Particulars

2.1     The Minister had before him a submission on the adverse impact of long term separation of a child from a parent; submission dated 11 May 2020 at CB 183 [102]-[109].

2.2    The Minister had before him evidence that the Applicant’s children could not relocate to Portugal; CB 183 [106]-[108].

2.3     The Minister gave no genuine consideration to the likelihood of the applicant’s children suffering long term harm due to the lack of a meaningful relationship with their father if he were removed from Australia.

PRINCIPLES

9    At the core of both grounds of review is the contention that the Minister failed to give “proper, genuine and realistic consideration” to representations made by the applicant.

10    The relevant principles are well known. The applicant referred to the following passage from GBV18 v Minister for Home Affairs (2020) 274 FCR 202 (Flick, Griffiths and Moshinsky JJ) at [32] (emphasis in original):

Omar [(2019) 272 FCR 589] also provides helpful guidance on what is meant by the obligation of a decision-maker to “consider” a matter in the context of a judicial review (see at [35]-[37]). The reasons for judgment in the present case should be read as though those paragraphs were incorporated here. For convenience, the key relevant points may be summarised as follows.

(a)    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. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court’s approach in Tickner v Chapman (1995) 57 FCR 451 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).

(b)     Importantly, each case necessarily turns on its own particular facts and circumstances as established by the evidence.

(c)     The inference drawn in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao) was one which was arrived at notwithstanding that the Minister’s statements of reasons in the two cases there stated that he had “given full consideration to all of the information before me” and that the reasons contained numerous statements by the Minister that he had “considered”, “noted”, “accepted”, “recognised” or “had regard to” various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive.

(d)     The decision-maker’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3] (with whom Markovic and Steward JJ agreed):

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

…

(e)     Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia’s non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker “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”.

(f)     The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error.

(g)     A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to re-emphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 168 ALD 331 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases.

(h)     Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker’s ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed.

11    In Minister for Home Affairs v Omar (2019) 272 FCR 589, the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) stated at [36] (emphasis in original):

The key points to emerge from Carrascalao [(2017) 252 FCR 352] which are also relevant to the decision-making function under s 501CA(4) are as follows:

(a)     The Court acknowledged the danger of using an expression such as “proper, genuine and realistic consideration” because, if taken out of context, it may encourage the Court to slide into an impermissible merits review (see the observations in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ);

(b)     As is the case under s 501CA(4), there was no explicit statutory duty on the Minister to “consider” the merits of the two appellants’ cases in Carrascalao. The Full Court proceeded on the basis, however, that there was an implicit statutory duty to consider the merits of the two cases, which included a volume of material provided by the judicial review applicants concerning their individual circumstances.

(c)     Notwithstanding the absence of any explicit statutory duty to “consider” the merits of the cases, the Full Court in Carrascalao found that helpful guidance was obtained from cases which had considered the meaning of the word “consider”, when used explicitly in a statutory context. One such case is Tickner v Chapman (1995) 57 FCR 451 (Tickner). In that case there was an explicit statutory duty on the Minister under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to “consider” a report and any representations attached to it in determining whether or not to make a declaration which would have the effect of protecting a site which the Minister was satisfied had special significance for Aboriginals. Justice Burchett said the following at 476-477 concerning the Minister’s explicit statutory duty to consider a report and any representations attached to it:

What is it to “consider” material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 at 568-569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to “consider” a report, Laskin J, speaking for the Supreme Court of Canada, said: “Certainly, the board must have the report before it”: Walters v Essex (County) Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs CJ, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31, conceded that the Minister, in the circumstances of that case, was not obliged “to read for himself all the relevant papers”, and that it “would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department”, he also made it plain that the summary must “bring to his attention” all material facts “which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial”. That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority.

…

The following observations of Kiefel J (as her Honour then was) in Tickner at 495 are particularly apposite:

To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say …

…

(d)     For the reasons given above, 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. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court’s approach in Tickner (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).

(e)     Each case necessarily turns on its own particular facts and circumstances as established by the evidence. The evidence in Carrascalao revealed that the Minister only had a short period of time to consider the detailed Departmental briefs placed before him and an inference was drawn that this limited time was insufficient for the Minister to discharge his obligation to consider, in the relevant legal sense, the merits of the two cases.

(f)     The inference drawn in Carrascalao was one which was arrived at notwithstanding that the Minister’s statements of reasons in the two cases there stated that he had “given full consideration to all of the information before me” and that the reasons contained numerous statements by the Minister that he had “considered”, “noted”, “accepted”, “recognised” or “had regard to” various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive.

(g)     As the Full Court emphasised in Carrascalao at [132], the successful ground of judicial review in those cases did not involve any assessment by the Court as to the merits of the Minister’s decisions, rather it related exclusively to the process surrounding those decisions. The same is the case here.

12    The Minister emphasised decisions which have noted that the use of language such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide into merits review”: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [31]-[34]; Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 at [42]. The Full Court in Maioha explained: “[w]hat is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put”: at [45].

13    In Singh v Minister for Home Affairs (2019) 267 FCR 200, the Full Court observed:

[35]    [I]t is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal [or, where relevant, the Minister] not performing the function entrusted to it [or him] or not performing it in an authorised way. The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review:

The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA’s comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).

…

[36]    The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

[37]    In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

(1)    First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

(2)    Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

(a)     the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at [30];

(b)    it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

(c)    a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

14    In Navoto v Minister for Home Affairs [2019] FCAFC 135, the Full Court stated at [89]:

Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall “on the wrong side of the line”, to quote Lafu at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons. What is required by a court upon judicial review is a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations made: Maioha at [45] per Rares and Robertson JJ.

Ground One

15    As put in submissions, Mr Bettencourt alleges that the Minister failed to give “proper, genuine and realistic” consideration to, or engage in an “active intellectual process” with, Mr Bettencourt’s representations about the harm he would suffer if he returned to Portugal, because the Minister “failed to ‘intellectually engage’ with the submission put to him in relation to the [applicant’s] suicide risk”.

16    When the applicant first made his revocation request, he stated in answer to the question “Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?”:

I am concerned about my mental health (suicidal). I will be isolated, will be homeless as I don’t know anyone there and I don’t speak the language. I fear these factors will weigh heavily on my mental health.

17    Mr Bettencourt stated in answer to the question “Are there any other problems you would face if you have to return to your country of citizenship?”:

I arrived in Australia when I was 8 years old and have never gone back. I haven’t seen my family for 31 years and I don’t know them. I don’t speak the language so won’t be able to communicate with them. It would push me to suicide if I can’t go back living with my children.

18    The applicant’s submissions dated 11 May 2020, made to the Minister made in support of his revocation request, contained representations with respect to the “extent of impediments if removed”. These included:

[172]     Mr Bettencourt has numerous warranted fears about returning to Portugal. He fears an inability to financially support himself, homelessness, anxiety and depression. His inability to speak the native language is a cause of major concern for him and his family.

[173]    Mr Bettencourt was diagnosed with PTSD and severe anxiety by Mr Taylor in July 2019. Mr Taylor wrote that Mr Bettencourt required a significant amount of support both professional and familial to combat these issues with Cognitive Behavioural Therapy, Eye Movement Desensitization Reprocessing or imagery rescripting and an intervention for panic as necessary treatments.

[174]     Mr Taylor’s diagnosis was supported by Dr Watts’ report. The psychological testing conducted by Dr Watts aligned with the diagnosis that Mr Bettencourt suffers from depression, anxiety and PTSD.

[175]     Mr Bettencourt’s family fears that Mr Bettencourt will be unable to cope without his usual support networks if forced to relocate to Portugal and would be extremely vulnerable. Debora states:

It would also have a negative impact if he was to be deported as he suffers from depression and anxiety and we believe that would overtake him. We could physically lose him as he has said he cannot live a life without his children and being in a foreign country where he knows no one nor speaks the language

…Our biggest fears would be that he would succumb to his depression and we would lose our brother.

[176]     Mr Bettencourt’s family members’ concerns are not unfounded. In his report Dr Watts states:

Elevations on the Suicidal scale indicated a likelihood of self-harm and some significant suicide risk. Mr Bettencourt has a genuine suicide risk.

The psychological testing tended to match Mr Bettencourt’s self-report, namely, he has been treated for depression, experiences anxiety, and is plagued by Post-Traumatic Stress Disorder symptomology. I note in my discussions that the first he was aware of depression was when it was pointed out to him by his psychologist. Prior to it being pointed out he did not know he was depressed and he was of the view that he has always felt like that but did not know it was depression.

[177]     Mr Bettencourt has this support in Australia and has access to professional help in the only language he speaks – English.

[178]     If he were to relocate to Portugal, Mr Bettencourt would be at risk of significant social disadvantage due to his inability to speak the native language. He has no social or family support in Portugal and has not lived there or visited since he was eight years old. Mr Bettencourt is likely to face significant cultural barriers if returned to Portugal. He will also experience a lack of social and economic support which in combination is likely to have a serious detrimental impact on his mental and physical health.

[179]     The report and statements by his family and community members support Mr Bettencourt’s serious concerns about hardship he would face if removed from Australia, including adjusting to a new life and culture and with the added difficulties of a language barrier and need for continued psychological treatment.

19    As noted in those representations, the report of Dr Watts (a psychologist) contained the opinion that the applicant “has a genuine suicide risk”. The opinion expressed by Dr Watts included that Mr Bettencourt “is likely to have significant suicidal ideation” and:

Elevations on the Suicidal scale indicated a likelihood of self-harm and some significant suicide risk. Mr Bettencourt has a genuine suicide risk.

20    Reading the Minister’s reasons fairly in accordance with the principles established in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at [38], I am satisfied that the Minister did, as a matter of substance, consider and engage with the applicant’s representations concerning the risk that he might commit suicide if returned to Portugal. In his statement of reasons dated 13 October 2020, the Minister:

    referred to Mr Bettencourt’s “concern that he will feel suicidal if he is removed from Australia and separated from his children”:

I have considered that Mr BETTENCOURT is 40 years of age and suffers from depression, Post Traumatic Stress Disorder (PTSD), anxiety, high cholesterol and thyroid dysfunction. I further note his concern that he will feel suicidal if he is removed from Australia and separated from his children.

    referred to the concern of Mr Bettencourt’s siblings that the applicant would become depressed and suicidal:

I have had regard to the submissions from Mr BETTENCOURT’s siblings in which they express their concerns and fears that their brother will become depressed and suicidal if he is deported to Portugal where he will be away from his children, will not know anybody and does not speak the language. They state he considers himself an Australian, and only knows Australia as his home.

    considered Dr Watts’ report and referred to the indication in it that Mr Bettencourt “was at risk of self-harm and suicide”:

I have also considered the psychological report prepared by Dr Watts dated 27 April 2020 in which psychological testing indicated that Mr BETTENCOURT was at risk of self-harm and suicide.

    stated that he accepted that Mr Bettencourt required treatment for his physical and mental health and then stated that he “acknowledge[d] the seriousness of the risk of suicide” and accepted that the removal of Mr Bettencourt to Portugal may “result in a deterioration of [his] health, including his mental health and increase his risk of suicide”:

I accept that Mr BETTENCOURT requires treatment for his physical medical conditions and his mental health and I also acknowledge the seriousness of the risk of suicide. I note that public health services, including mental health services, are available in Portugal. I acknowledge, however that the quality of health services available to Mr BETTENCOURT in Portugal may not be comparable to those available in Australia. However Mr BETTENCOURT will have equal access to healthcare and others services as other citizens of the Portugal. I accept that removal to the Portugal may result in a deterioration of Mr BETTENCOURT’s health, including his mental health and increase his risk of suicide.

…

I accept that Mr BETTENCOURT came to Australia at a very young age and has no family or acquaintances in Portugal. I find that he will experience significant hardship on return to Portugal given his lengthy residence in Australia of some 32 years, the absence of close family in Portugal, the presence of his children and close family in Australia, and his physical and mental health problems which may deteriorate in Portugal.

21    The Minister’s reasons are brief and the decision is one which has devastating consequences. The role of this Court is confined to identification of jurisdictional error and is not one which permits review of the merits of the decision, no matter how strongly the Court might disagree with the merit of the decision made. Having carefully examined the material put to the Minister and having reviewed the reasons for decision, I am not persuaded that the Minister did not engage with the representations which had been put. I am satisfied that he engaged with the representations in a manner which indicates a discharge of the function required of him by the statute. The reasons indicate that the Minister confronted the significance of what was being put to him. This is not a case, of which Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 is an example, where the Minister’s reasons include findings which were incapable of being made on the basis of the evidence before the Minister.

22    Senior counsel for Mr Bettencourt contended that the Minister was, in the circumstances, required to make a finding about whether Mr Bettencourt would actually commit suicide if returned to Portugal. In response to this submission, the Minister observed that Mr Bettencourt did not submit in the 11 May 2020 representations that he would commit suicide if returned to Portugal and that Dr Watts did not express such an opinion. I note, however, that Mr Bettencourt had effectively stated that he considered he would commit suicide if returned to Portugal because he would not be able to see his children – see: [17] above.

23    Notwithstanding Mr Bettencourt’s statement and the other material to which I have referred, there was no legal obligation on the Minister to make a finding about whether or not Mr Bettencourt would commit suicide. More particularly, there is no jurisdictional error in not reaching a conclusion about that matter. The representations as a whole were generally cast in terms of risk of suicide and significantly increased risk of suicide if returned to Portugal. The increased risk of suicide was supported by Dr Watts’ objective and independent opinion and Mr Bettencourt’s and his family’s statements. The Minister engaged with the representations. He accepted that there was a risk of suicide and accepted that a return to Portugal might result in a deterioration of Mr Bettencourt’s mental health and increase his risk of suicide. The Minister reached the decision he did, notwithstanding his acceptance of that risk. The Minister did not have to make a finding about what would in fact occur in the future to discharge his statutory function, as opposed to giving real consideration to the representations and concerns which had been expressed.

Ground Two

24    The second ground of review centres on a contention that the Minister failed to give “proper, genuine and realistic consideration” to Mr Bettencourt’s representations concerning the best interests of his two children. In particular, but not exclusively, it is alleged that the Minister “gave no genuine consideration” to the likelihood of his children suffering long term harm due to the lack of meaningful relationship with their father, if he were removed.

25    In addition to the authorities referred to earlier, the applicant relied on the decision in Webb v Minister for Home Affairs [2020] FCA 831, in which Anastassiou J, dealing with a similar issue, stated at [47] and [50]:

The Minister was required to consider a basket of factors that had a bearing upon his discretion to revoke the cancellation. In the absence of reasons expressed by the Minister that reveal his understanding and appreciation of why revoking the cancellation is in the best interests of the children, that important factor becomes inscrutable, especially in terms of the weight he gave to it when considering other factors against exercising his discretion when reaching his ultimate conclusion to refuse the application.

…

In circumstances where the adverse consequences for the children are extremely serious, I have concluded that the Minister’s failure to adequately explain in his Reasons his understanding of those consequences, at the very least, leaves open the inference that he did not give proper, genuine and realistic consideration to the representations of the Applicant concerning the best interests of the children.

26    The applicant submitted that, if the Minister “had given active intellectual consideration to the representations about the damage to the applicant’s children from forced separation, and to the impact of the fact that the children would not relocate to Portugal then the decision made by the [Minister] may have been different”.

27    Mr Bettencourt’s representations when he first sought revocation, and his 11 May 2020 representations, referred to the detrimental impact on children of ongoing separation from parents, including by reference to extracts from academic literature or expert views on the topic. It was submitted that there was “no evidence” that the Minister had any regard to that academic literature. The representations addressed, in particular, the best interests of Mr Bettencourt’s two daughters and contended that their best interests were served by Mr Bettencourt remaining in Australia with them. The representations also addressed Mr Bettencourt’s nieces and nephews, in particular his autistic nephew.

28    In his statement of reasons dated 13 October 2020 (hereafter “R”), the Minister stated:

[14]    I have considered that Mr BETTENCOURT has two Australian citizen minor daughters, Krystal Marie Bettencourt, aged 10 and Lilly Ann Bettencourt aged four.

[15]    I have also considered Mr BETTENCOURT’s submission that he resided with Krystal and Lily prior to his incarceration, shares a very close bond with each of them, maintains regular phone contact with them while incarcerated and that both children are distressed at their current separation from him.

[16]    I have taken into account that Krystal writes that she misses her dad and feels sad that she cannot see him.

[17]     I have had regard to the submission from the children’s mother, Ms Haydee Costantino, that Krystal and Lilly miss their father and are upset by their separation, that they will be distraught should he be removed from Australia and that Ms Costantino is not financially able to facilitate to travel to Portugal for Krystal and Lilly.

[18]    I have taken into account the submission from Krystal and Lilly’s maternal grandmother, Ms Sonia Hanks, that the children will be mentally and physically affected should their father be removed from Australia.

[19]     I note that the sentencing Judge acknowledged that Mr BETTENCOURT was close with Krystal and Lilly.

[20]    I have had regard to submissions from several of Mr BETTENCOURT’s siblings and friends who describe him as a great father, who is adored by his children, nieces and nephews.

[21]    There is no evidence before me that Krystal and Lilly will relocate to Portugal in the event of a non-revocation decision.

[22]     I find that it is in the best interests of Krystal Marie Bettencourt and Lilly Ann Bettencourt that I revoke the original decision to cancel Mr BETTENCOURT’s visa, to enable them to have a relationship with their father in Australia that includes personal contact.

[23]     I have also considered that Mr BETTENCOURT has 15 Australian citizen minor nieces and nephews residing in Australia.

[24]     I note Mr BETTENCOURT’s submission that he is close to all his nieces and nephews and in particular with his nephew Ethan, who is five years old and has autism. He sees Ethan five times a week and they share a close bond.

[25]     I have considered a submission from Ms Claudia Brown, Ethan’s mother and Mr BETTENCOURT’s sister, who confirms that Ethan does not usually interact with adults but is close to his uncle and is struggling without him. I have given weight to the Autism Spectrum Disorder Assessment Report dated 22 November 2016 confirming that Ethan presents with a moderate to severe level of autism with a severity level three for social communication.

[26]     I note that Ms Brown has another son Jordan, who Mr BETTENCOURT is also close with and spends time with.

[27]     I have taken into account a submission from Ms Hayley Vignera, Mr BETTENCOURT’s niece, that she is aware of her uncle’s offending and feels distressed at his potential removal from Australia.

[28]    I find that it is in the best interest of Mr BETTENCOURT’s nieces and nephews, in particular Ethan, that I revoke the original decision to cancel Mr BETTENCOURT’s visa, however I have given this consideration less weight, as there is no information before me which indicates that these children do not have parents of their own to care for them.

…

[106]     In considering, in light of Mr BETTENCOURT’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr BETTENCOURT’s minor Australian citizen children, Krystal Marie Bettencourt and Lilly Ann Bettencourt and I found that their best interests would be served by the revocation of the original decision.

29    For the reasons which follow:

(1)    I consider that the Minister’s reasons, read fairly, indicate that he proceeded on the basis that there would be a long term separation between Mr Bettencourt and his minor children and that this would have a detrimental impact on them.

(2)    I do not infer that the Minister did not, in making his decision, consider the academic literature dealing, amongst other matters, with the impact of long term separation between parent and child.

(3)    I infer that the brevity with which the conclusions were expressed, particularly in [22] and [106], reflects the fact that the Minister accepted that the interests of Mr Bettencourt’s minor children strongly favoured revoking the visa cancellation decision.

(4)    I am not satisfied that the Minister did not give real and genuine consideration to the representations made concerning the interests of his two minor children.

30    As to the first matter, the Minister observed that there was no evidence suggesting that the daughters would relocate to Portugal and referred to their mother’s submission that she could not finance their travel to Portugal. The Minister referred to the fact that Mr Bettencourt resided with his daughters before incarceration; that they shared a “very close bond”; that the daughters were distressed by the separation; that the daughters would be “distraught” at his removal; and that the daughters would be “mentally and physically affected” should he be removed. The Minister also observed that the daughter’s mother would experience hardship from his removal, “in particular due to caring for two children without [Mr Bettencourt’s] parental support”. I consider that the Minister proceeded on the basis that there would be a long term separation between Mr Bettencourt and his minor children and that this would have a detrimental impact on them.

31    As to the second matter, it is true that the Minister did not refer to the academic literature which had been referred to in the representations. However, there is no obligation on the Minister to refer to every piece of evidence or every contention before him: ETA067 v Republic of Nauru (2018) 92 ALJR 1003 at [13]. Whether an inference should be drawn that material was overlooked or ignored depends on the particular circumstances, including: (a) the centrality of the material to the representations made and to the decision to be made; (b) the extent to which the material confirms or refutes the Minister’s decision; and (c) the content of any obligation to furnish reasons for decision. The obligation to provide reasons is found in s 501G of the Act, read with s 25D of the Acts Interpretation Act 1901 (Cth). Where there is a statutory obligation to provide reasons, the Court is entitled to infer that a matter not mentioned in the reasons was not considered to be material if the terms of the specific statutory obligation require the reasons to set out the facts the decision-maker considered material to its decision and the evidence it considered material to its findings: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [9]-[10], [44] and [69]. Reasoning in this way – where the foundation for it exists – is not mandatory: SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34 at [19]-[20] (Perram J); Minister for Home Affairs v HSKJ (2018) 266 FCR 591 at [44] (Greenwood, McKerracher and Burley JJ). Reading the reasons as a whole, I would not infer that the academic literature was ignored. Rather, a reading of the reasons as a whole, suggests that the Minister proceeded on the basis that it was to be accepted that long term separation of minor children from a parent was likely to have harmful consequences. It was not necessary to refer to the academic literature because it was implicitly accepted as accurate.

32    As to the third and fourth matters, the Minister accepted that it was in the best interests of Mr Bettencourt’s two minor children that the cancellation decision be revoked, “to enable them to have a relationship with their father in Australia that includes personal contact”. As the passages set out at [28] and summarised at [30] above indicate, the Minister considered and engaged with the significance of the harm to Mr Bettencourt’s daughters as a result of Mr Bettencourt’s removal and their inability to relocate to Portugal.

33    Whilst it could have been more clearly expressed, I conclude that the Minister accepted that long term separation between Mr Bettencourt and his children was likely and that the long term separation would have harmful consequences to the children. The Minister accepted that the interests of Mr Bettencourt’s minor children favoured cancellation: at R[22] and R[106]. In my view, R[22] should be read as accepting the various matters set out in R[15] to [21] – see: [28] above. I am not satisfied, reading the reasons as a whole, that the Minister did not give real and genuine consideration to the likelihood of the applicant’s children suffering long term harm. It follows that the applicant has not discharged his onus of establishing jurisdictional error.

CONCLUSION

34    The application must be dismissed with costs.

Associate:

Dated:    2 March 2021