FEDERAL COURT OF AUSTRALIA

Pavey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 258

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to quash the decision of the second respondent dated 11 October 2019.

2.    A writ of mandamus issue requiring the second respondent to determine the applicant’s application for review of the first respondent’s decision dated 26 July 2019, according to law.

3.    The first respondent pay the applicant’s costs of the proceeding, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is a second further amended originating application for review of a migration decision (application) of the Administrative Appeals Tribunal (Tribunal), filed on 7 July 2020. The Tribunal affirmed the prior decision of a delegate of the first respondent, the Minister for Home Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) (Minister), pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act), not to revoke the cancellation of the applicant’s Class BB (subclass 155), five year resident return visa.

background

2    The applicant, Mr Pavey, is a citizen of the United Kingdom. He first arrived in Australia as an infant in April of 1992 and has not left Australia since 2002. On 8 August 2001, he was granted his most recent visa, a Class BB (subclass 155), five year resident return visa.

3    Mr Pavey has a criminal history in Australia, which the Tribunal described as lengthy, commencing in April of 2008 when Mr Pavey was 16 years old. His offences include those relating to unlawful drugs, weapons, property, trespass and breaches of domestic violence orders.

4    On 12 January 2015, the applicant was convicted of assault occasioning bodily harm as defined in s 339(1) of the Queensland Criminal Code (Sch 1 to the Criminal Code Act 1989 (Qld)). He was sentenced to 12 months imprisonment with immediate release on parole.

5    On 16 November 2016, Mr Pavey was again sentenced to imprisonment, this time for a period of 18 months, to be suspended for three years once he had served four months. That sentence related to a number of charges concerning supplying Sch 1 and Sch 2 dangerous drugs contrary to s 6 of the Drugs Misuse Act 1986 (Qld).

6    On 1 February 2017, Mr Pavey’s visa was cancelled by the Minister (or a delegate of the Minister) pursuant to s 501(3A) of the Migration Act, on the basis that he did not pass the character test within the meaning of s 501(6) of the Migration Act. Following this decision, the applicant made representations to the Minister, as a result of which, on 27 April 2017, the Minister revoked the cancellation of the visa pursuant to s 501CA(4) of the Migration Act.

7    On 7 June 2018, Mr Pavey was convicted of further offences. The offences were committed during the three year suspended sentence imposed on 16 November 2016. He was also convicted in respect of a breach of his suspended sentence, and required to serve the remaining 14 months of the original 18 month suspended sentence.

8    On 12 July 2018, a delegate of the Minister, again, mandatorily cancelled Mr Pavey’s visa pursuant to s 501(3A) of the Migration Act on the basis that Mr Pavey had failed the character test.

9    On 2 August 2018, Mr Pavey requested that the decision to mandatorily cancel his visa be revoked. On 26 July 2019, the delegate of the Minister decided, pursuant to s 501CA(4) of the Migration Act, not to revoke the cancellation of the visa.

10    On 29 July 2019, the applicant filed an application with the Tribunal, seeking a review of the delegate’s decision not to revoke the cancellation of the visa.

11    On 11 October 2019, the Tribunal affirmed the decision of the delegate.

The decision of the tribunal

12    The Tribunal considered that there were two issues it was required to determine:

    first, whether the applicant passed the character test; and

    second, whether there was another reason why the decision to cancel the applicant’s visa should be revoked.

13    The Tribunal noted at [11] of its reasons that, if the applicant succeeded on either ground, the decision to cancel the applicant’s visa would be revoked.

14    In relation to the question whether the applicant passed the character test, the Tribunal relevantly noted at [16] that the applicant did not “cavil with the contention that he did not pass the character test”. The Tribunal also found at [18] that it was satisfied, by reason of Mr Pavey’s previous custodial sentences (imposed in July 2012, January 2015, November 2016, June 2018 and April 2019), that he did not pass the character test.

15    In relation to whether there was another reason to revoke the decision to cancel the applicant’s visa, the Tribunal referred to the three primary considerations (and other considerations relevant to the individual case) as set out in Direction No. 79 – “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction No. 79). Paragraph 8(1) of Direction No. 79 stated that the three primary considerations and other considerations relevant to the individual case must be taken into account by the decision-maker in determining whether a mandatory cancellation of a non-citizen’s visa will be revoked.

16    Considering primary consideration A, being the protection of the Australian Community, the Tribunal made the following relevant findings:

    Between 2008 and 2019, the applicant came before the courts for sentencing on 17 occasions and was convicted of 78 offences, including offences relating to the possession and supply of illegal drugs, assault, possession of weapons and explosives, offences relating to stolen property and fraud, trespass, breach of domestic violence orders, breach of bail conditions, failing to comply with a police direction, obstruction of police and breach of a suspended sentence.

    The applicant had an extensive history of road traffic offences, including unlicensed driving.

    Having regard to the relevant factors in Direction No. 79 relating to assessing the nature and seriousness of a non-citizen’s criminal offending conduct, and the previous judicial notice of the violent nature of the applicant’s offending, the applicant’s offending was very serious. His offending demonstrated inherent violence or propensity towards violence, was “destructive and potential catastrophic treatment of a woman”, included violence in the presence of a child, and involved the imposition of an “extensive regime of custodial terms”.

    Whether the offending was attributable to the abuse of alcohol or illicit drugs or the loss of his father was immaterial to the finding that the offending was very serious.

17    The Tribunal found it was likely that the applicant would engage in further serious conduct if returned to the Australian community for the following reasons:

    There was no independent report or evidence informing the Tribunal about Mr Pavey’s risk of re-offending.

    Whilst the appellant spoke of mending his ways if given a second chance, the stark reality apparent from his sentencing history was that he was well past a second chance.

    Having committed assault offences almost contemporaneous with completion of courses relating to drugs and alcohol, stress management, and cognitive behaviour and resilience training, it was not possible to take comfort that the completed courses or future courses would lessen his risk of re-offending.

18    In relation to primary consideration B, being the best interests of minor children in Australia, and after inquiring of the applicant about how many of the six identified children were relevant to this consideration, the Tribunal relevantly found as follows:

    The applicant’s role in the lives of the three relevant minor children in Australia was significantly limited as a result of his lengthy respective terms in criminal custody and then immigration detention.

    The applicant had never met child 3 or child 4, but had a role in the life of child 2.

    Evidence of the mothers of the child 3 and child 4 was sketchy and unreliable.

    As a result of the unreliability of that evidence, the Tribunal could not be certain whether permanent physical separation between the applicant and the children would very significantly, or at all, impact upon the children.

    The best interests of the children weighed slightly in favour of revocation of the decision.

19    In relation to primary consideration C, being the expectation of the Australian community, the Tribunal found that the Australian community would expect the Tribunal to endorse the cancellation of the applicant’s visa, and weighed heavily in favour of affirming the delegate’s decision. The Tribunal based this finding on the following reasons:

    the very serious nature of the applicant’s offending to date;

    the applicant’s failure to assume responsibility for his predisposition towards abusing alcohol and illicit substances;

    the general nature of the applicant’s offending evinced a lack of respect for lawful authority and the personal and property rights of others in the community;

    the applicant demonstrated a lack of insight into the severity of his actions, supporting a strong likelihood that he would engage in serious misconduct if returned to the community;

    the significant risk of substantial harm to the community if the applicant were to re-offend; and

    the absence of any independent or expert evidence that the applicant’s issues with alcohol and illicit substances had been addressed or were effectively monitored.

20    In relation to other relevant considerations as set out in paragraph 14 of Direction No. 79, the Tribunal observed that those considerations were “other” considerations as opposed to “secondary” considerations: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594. The Tribunal found that there was a measure of strength in the applicant’s ties with Australia, which weighed in favour of revoking the delegate’s decision. However, the Tribunal also commented that the weight which could be attributed to his family ties must be tempered by the applicant’s consistent offending “for virtually the entirety of his adult life in this country”.

21    Overall the Tribunal concluded that other relevant considerations weighed in favour of revocation of the delegate’s decision, but were outweighed by primary considerations A and C, which heavily favoured non-revocation of the delegate’s decision. Accordingly, the Tribunal determined not to exercise its discretion to revoke the cancellation of the applicant’s visa.

application for review before the court

22    The applicant filed an originating application for review of a migration decision in the Federal Court of Australia on 30 October 2019. That application provided that the “ground of the application are set out in the accompanying Affidavit”. The accompanying affidavit reads as follows:

1.    I am the applicant in this proceeding before Court

2.    The First Respondent's decision made on 26 July 2019 quashed.

3.    The Second Respondent's decision made on 11 October 2019 quashed.

4.    The Second Respondent's decision was unreasonable.

5.    The First Respondent did not properly apply s501CA and s 501CA( 4) of the Migration Act 1958.

6.    The Second Respondent failed to take relevant considerations into account

7.    There was insufficient evidence or no evidence to support various findings made by the Second Respondent

8.    The First Respondent failed to properly exercise its discretion under s501CA and s501CA(4) of the Migration Act 1958.

9.    The Second Respondent's decision involved an error of law.

10.    The Second Respondent in making the decision did not comply with the rules of natural justice and/ or the applicant was denied procedural fairness.

(Emphasis in original.)

23    On 5 June 2020, the applicant filed an amended originating application for review of a migration decision.

24    On 29 June 2020, I made Orders by consent that:

1.    By no later than 4.00 pm on 23 June 2020, the appellant must file and serve a copy of any amended application with proper particulars of the grounds of the application.

2.     By no later than 4.00 pm on 23 June 2020, the appellant must file and serve a copy of any affidavit.

25    The applicant filed a further amended originating application for review of a migration decision on 23 June 2020.

26    On 7 July 2020, I made an Order granting the applicant leave to file a second further amended originating application for a review of a migration decision. The applicant filed a second further amended originating application that same day. The second further amended originating application sets out the following grounds of review:

1.    The Tribunal denied the applicant procedural fairness and failed to take a relevant consideration into account in determining if there was another reason to revoke the visa by not considering the impact of the decision of the applicant’s mother.

Particulars

a.    The applicant was entitled to procedural fairness before the Tribunal.

b.    The applicant’s submissions, as a whole, were a mandatory relevant consideration pursuant to s 501CA(4) of the Migration Act 1958 (Cth).

c.    The Applicant raised an argument that the decision should be revoked given his mother’s need for support, and the impact of the decision on his mother.

d.    The applicant’s mother gave oral evidence to the Tribunal that she had Chronic obstructive pulmonary disease and hoped her son could be her carer.

e.    The Tribunal in its reasons for decision did not refer to the applicant’s mother’s health condition, her oral evidence, or the applicant’s plan to act as her carer.

f.    The argument was significant: both the applicant and his mother gave evidence in support of the submission.

g.    The Tribunal failed to consider the impact on the applicant’s mother.

2.    The Tribunal denied the applicant procedural fairness and failed to take a relevant consideration into account in determining if there was another reason to revoke the visa by not considering the submission that the applicant would face impediments to return to the United Kingdom due to his issues with drug and alcohol use.

Particulars

a.    The applicant was entitled to procedural fairness before the Tribunal.

b.    The applicant’s submissions, as a whole, were a mandatory relevant consideration pursuant to s 501CA(4) of the Migration Act 1958 (Cth).

c.    The applicant, by his legal submissions dated 2 August 2019, argued that the impediments to establishing himself in the United Kingdom were significant given his drug and alcohol addiction may be exacerbated, his mental health and he would not have any familial support (Court Book (CB) 369, [68]).

d.    The Tribunal did not refer to or consider the submission.

e.    The submission was significant in the context of the review: it was the only argument in the submissions regarding the impediments to return.

f.    The Tribunal failed to consider the submissions

(tracking in original)

27    Based upon those grounds of review, the applicant sought the following relief:

1.    A writ of certiorari to quash the decision of the second respondent dated 11 October 2019.

2.    A writ of mandamus ordering the second respondent to determine the applicant’s application for review of the first respondents [sic] decision dated 26 July 2019 according to law.

3.    An order that the first respondent pay the applicant’s costs of the proceeding to the applicant’s solicitors.

28    It is this second further amended originating application for a review of a migration decision which is the application currently before the Court.

submissions of the parties

29    The applicant relevantly submitted, in summary:

    The Tribunal had a statutory obligation to set out its material findings of fact and evidence on which those findings were based when given written reasons. It may be inferred that the omission of an argument of the applicant from the Tribunal’s reasons was not considered by the Tribunal unless it was subsumed into a broader finding.

    The applicant articulated an argument (in his personal circumstances form, in his statement to the Tribunal, and in his oral evidence) that his removal would impact his mother’s health, which was supported by medical evidence and the evidence of the applicant’s mother.

    It can be inferred that the Tribunal did not consider the applicant’s submission concerning his mother because:

   1.    the Tribunal did not expressly refer to it or the underlying facts in support of his argument;

   2.    the Tribunal made no findings in relation to whether the applicant’s mother needed care or as to their relationship;

   3.    the Tribunal did not refer to the mother’s evidence, including her oral evidence, her diagnosis, or her medical certificate, such that there is any indication that the Tribunal had taken the evidence into account; and

   4.    the Tribunal made no finding, even at a higher level of generality, acknowledging the impact of the decision on the applicant’s mother.

    The Tribunal referred to the adverse impact of the decision on the applicant’s mother, sisters and children in considering the expectations of the Australian community, but did not identify the specific adverse impact the decision would have on the applicant’s mother in light of her health issues.

    The Tribunal failed to consider the hardships the applicant would face due to his drug use, mental health and lack of support in the United Kingdom.

    The applicant’s submissions in this respect were relevant to para 14.5 of Direction No 79. The applicant’s arguments were contained in submissions to the Tribunal, his personal circumstances form, and his oral evidence before the Tribunal.

    The Tribunal’s reasons focused only on whether the applicant would have the opportunity to access employment, medical and social support relative to other citizens of the United Kingdom, but did not consider the applicant’s submission that, given his personal circumstances, he would not, in practice, be able to establish himself without significant hardship.

    Whilst the Tribunal could have, in theory, rejected the applicant’s evidence, there is no indication that it did so. The Tribunal could not have found such evidence neutral if it had given proper consideration to the applicant’s submissions.

    The applicant’s submission relating to the impediments to his return to the United Kingdom may have formed part of a reason to revoke the decision. Therefore, the failure to consider the submission was a jurisdictional error.

30    The Minister relevantly submitted, in summary:

    The applicant’s mother’s written statement did not mention the possibility of her son acting as her carer, rather it suggested that the applicant moving in with her would assist the applicant to keep busy and “stay away from the drug scene”.

    The applicant’s oral evidence was that he did not propose to move in with his mother immediately upon his release from detention. His mother’s oral evidence at times suggested that the plan for her and the applicant to cohabit was designed to help the applicant abstain from drugs. The evidence of the applicant’s sister was to similar effect.

    The applicant’s mother gave evidence that she “need[ed] someone there to help” her and that it would “hopefully” be the applicant, but did not give evidence that no other person could fulfil the role. The applicant’s mother’s evidence also appeared to be that the applicant would provide assistance with the farm animals owned by his mother and kept on her property.

    The Minister did not invite the Tribunal to find that the applicant would not live with his mother, and there was no factual dispute about this issue.

    The Tribunal concluded it was reasonable to attribute some weight to para 14.2(1)(b) of Direction No. 79 on the basis of the applicant’s ties to Australia, including his ties with his mother, but that it was outweighed by primary considerations A and C.

    The Tribunal’s findings about the applicant’s family ties to Australia effectively encompassed the allegedly adverse impact on the applicant’s mother of the refusal to cancel the revocation of the applicant’s visa.

    If little is said about a given matter in the material before the Tribunal, passing reference to it in reasons will be less likely to support an inference that it was not given adequate consideration: Meyrick v Minister for Home Affairs [2020] FCA 677 at [98]. The issue of the applicant caring for his mother was raised in one sentence in a written statement and a few comments of the applicant and his mother during the hearing.

    When the Tribunal’s findings are read without an “eye keenly attuned to error”, it can be seen that the relevant matter was taken into account.

    Even if the Tribunal failed to give proper consideration to the applicant’s arguments concerning his mother, Direction No. 79 did not require the Tribunal to treat such a consideration as a primary consideration.

    The Tribunal found that two of the primary considerations weighed “heavily” in favour of non-revocation of the cancellation of the applicant’s visa, with the other weighing “moderately” in favour of revocation.

    While Direction No. 79 provided that “other considerations” can outweigh primary considerations in an appropriate case, there is no basis for concluding that the Tribunal would consider this to be such a case. The Court should not conclude that “some hypothetical further level of consideration” of the matters set out in para 14.2(b) of the Direction No. 79 could realistically have resulted in a different decision.

    In relation to the hardship faced by the applicant by returning to the United Kingdom, the applicant did not say he would fall back into drug use or say his mental health would suffer. Rather, the applicant stated: “It’d take me a while to get onto me feet” if he was returned to the United Kingdom.

    The applicant’s claim that his drug addiction might be exacerbated by a return to the United Kingdom was made in a single sentence, in arguments before the Tribunal, and was not supported by expert evidence or by evidence from the applicant. The applicant’s own evidence to the delegate about the problems he believed he would face did not include relapsing, nor did his oral evidence to the Tribunal.

    The Tribunal dealt with the effect of returning to the United Kingdom on the applicant’s mental health in its reasons, in that it concluded that the treatments the applicant received would be available to him in the United Kingdom.

    Lack of familial support is not noted in para 14.5(1) of Direction No. 79 as a matter relevant to the assessment of the extent of impediments faced by a person upon return to their home country.

    Any error by the Tribunal in respect of this issue was not material in the sense required for it to constitute jurisdictional error. The applicant had contended that the impediments he would face upon returning to the United Kingdom weighed “slightly” in favour of revocation of the delegate’s decision. Such a consideration could not outweigh primary considerations A and C, which weighed in favour of non-revocation of the delegate’s decision to cancel the applicant’s visa.

consideration

Ground 1

31    The key issue for consideration in respect of the first ground of the application is whether the Tribunal gave consideration to the applicant’s contentions concerning the impact on his mother of a decision not to revoke cancellation of his visa, and, if not, whether that failure amounted to a jurisdictional error.

32    In considering this ground, I note the following.

33    First, in the applicant’s statement of facts, issues and contentions, prepared by his then lawyers on 2 August 2019, the applicant stated:

64.    Pursuant to paragraph 14.2(1) of Direction 79, decision makers must consider the strength, nature and duration of ties to Australia.

65.    The Applicant submits that the strength, nature and duration of his ties to Australia strongly weigh in favour of the revocation of the Original Decision.

66.    In circumstances where the Applicant:

(a)    arrived in Australia as an infant and has continuously lived in Australia since arriving 27 years ago;

(b)    resided in Australia since infancy, being more the vast majority of his life;

(c)    has all of his immediate family residing in Australia, namely:

(i)    Angela Pavey, mother;

(ii)    [sister 1];

(iii)    [sister 2];

(iv)    [child 1];

(v)    [child 2];

(vi)    [child 3];

(vii)    [child 4];

(d)    has a solid employment history and promise of employment;

(e)     has buried his father in Australia following a tragic road accident;

This consideration should weigh significantly in favour of the Tribunal setting aside the Reviewable Decision.

34    In this statement the applicant’s mother, or her needs, were not otherwise identified. This is notwithstanding that, in a Personal Circumstances Form dated 9 August 2018, being Annexure G to the applicant’s Request for Revocation of a Mandatory Visa Cancellation under s501(3A), the applicant stated:

My family are my support I’m there support we work together to help each other. They are devastated that I’m fighting to stay in Australia. My mum is very sick has emphysema COPD. And [pneumonia]. And is on a machine to help her breathe. She needs me more than anything now they would be shattered if I was sent back.

35    Second, written statements of the applicant’s mother before the Tribunal were to the effect that the applicant could be of assistance to her on her property, and therefore could be kept away from malign influences. However, Ms Pavey made no written statement relating to her state of health. In particular I note Ms Pavey’s undated statement in which she stated, relevantly:

…I have moved out to a rural property to be away from people and am willing to move interstate if this helps getting him out…. I live on property that has a lot of work to be done on it also we are in cattle farming area and farmers are always looking for help so he can be kept busy and away from the drug scene.

36    Third, I note that although a Senior Counsellor, to whom the applicant had apparently been referred by the Yongah Hill Immigration Detention Centre, wrote on 30 August 2019 that “Steven’s mother is seriously ill. His thoughts ruminate on needing to support her”, that in itself was a general and unsubstantiated statement.

37    However, fourth – at the hearing before the Tribunal on 26 September 2019 a number of statements relevant to the first ground of the application currently before the Court were made by both Mr Pavey and Ms Pavey.

38    At the commencement of the hearing, the Senior Member invited the applicant to comment on his overall case position. The applicant spoke about his desire to do a rehabilitation course and continued:

WITNESS: You know, my mum she’s got emphysema and stuff like that, which I’ve provided medical documents as well.

SENIOR MEMBER: Yes.

WITNESS: Yes, and basically if I’m released after I’ve done my course that I plan on living with my mum, becoming a carer for my mum. And yes, from where I’ve committed all my offences my mum – when I was in gaol this time my mum moved away from the area, so when – like if was to be released to the community I would have a step forward. I’ve pushed all my old friends away, I’ve started afresh….

(Tribunal transcript p 8)

39    During cross-examination, the applicant stated as follows:

MR HAWKER: Thank you. Mr Pavey, just a couple of matters arising from what you were just telling the tribunal about…

…

And the employer who you spoke about was it David or Damian?---Damian.

Damian. The plastering business?---Yes. Yes, yes, it’s in the G documents.

And you’ve worked with Damian in the past?---Yes.

Okay. And so then how does that fit with your suggestion that if you were released you would move away with your mother?---Because he lives in Brisbane.

Yes?---Yes, my mum lives five and half hours north of Brisbane.

Well, your mum lives in Hervey Bay, correct?---Yes. No, she lives in Kooringa, she moved away from Hervey Bay, she moved to Kooringa, which is like a small country town.

Yes, and so Damian has a business in Brisbane?---Yes,

Plastering?---Yes.

And so how is then if you’re going to move away with your mother that you can be employed by Damian in Brisbane?---Because, obviously, you know, for a start like I’m not going to be able to just to relocate, I would have to save some money up to relocate. You know, like my mum’s like sick, she’s not getting any better, like obviously, you know. I’m going to have to work to help support her too.

So, you’d have a period in the community where you weren’t under the guidance or with your mother, is you were released? Pardon, what was that?

So you would have an immediate period of time, if you were to be released into the community where you wouldn’t be with the support of your mother, you would be living away from your mother?---Yes, like I’d work five days a week and spend the weekend with my mum.

In your statement, which is exhibit RU, it’s undated but you say that if you get out:

Me and my mother are thinking of moving to NSW.

New South Wales?---Yes, yes. We have been talking about moving down to New South Wales for a complete fresh start.

Away from anyone that I know.

?---Yes.

Well, Damian is someone that you know. I’m just trying to reconcile what you’re telling the tribunal as against what you’ve told – one moment?---Yes.

I’m trying to reconcile what you’re telling the tribunal today with what you’re telling the tribunal in some of the written documentation about what your actual intentions are, if you went back into the community?---Well, like my plan is, you know, to be there for my mum. If my mum still wants to move when I get out, like that will be in the make, like we will move. Like I plan on getting a job as quick as I can in the community, so like if that – like if my only option is to work for Damian like I will go back to work for Damian until I can find a better job. If we were to move to New South Wales I would work for Damian for a period of time to gather up enough money to move away and then me and my mum would move obviously.

(transcript pp 11-13)

40    Further, during cross-examination of Ms Pavey by the legal representative for the Minister (and subsequent re-examination by the Senior Member), and following statements referring to the applicant’s character and his drug use, Ms Pavey said as follows:

And if he was to be released into the community, you talk a little bit about you would be – you’re the one that would be willing to move interstate with him?--- Yes.

That’s correct?---He needed to – he needed to get out of Hervey Bay, away from Hervey Bay. Which I’ve done. I’ve moved like an hour and a half inland from Hervey Bay. Hervey Bay is toxic.

Yes. But it’s your place of residence, or your home, that you said is the one that you’d be welcoming him into?---Yes. Yes. And if it meant that we had to move interstate or something with him, I was willing to move down interstate.

To your knowledge, does he have a current partner?---Don’t know. Haven’t really spoke to him lately, because I’ve been sick.

Okay. And so then, I suppose, to your knowledge you wouldn’t know if he’s got any plans to, for example, get married to anyone or not? I wouldn’t have a clue. I don’t sort of interfere.

Yes. And so when was the last – how frequently have you kept in contact with Mr Pavey? We talk on the phone but it’s a bare minimum.

And what do you mean?---He was going out with someone but I don’t know – I don’t go into his personal – that’s his business.

Alright, thank you. I don’t have any further questions.

SENIOR MEMBER: Thank you, Mrs Pavey, is there anything else tht you would like to say or add?---No, just that he needs to come home and look after me.

<RE-EXAMINATION BY SENIOR MEMBER

Right. What’s the position with you?---I’ve got – what’s it? COPD.

What’s COPD?---Chronic pulmonary artery disease.

Like emphysema, basically?---Basically, yes. Severe.

Alright. You were a smoker obviously in the past?---Yes, worked for a cigarette company who give you free cigarettes as your wages.

I see. And so you’re at the stage where you need a carer?---I need someone there to help me.

Right. And who’s that proposed to be?---Hopefully, him.

Right, the applicant – your son – if he comes out of - - -?---Yes.

If he gets his visa back?---Yes.

So he’s going to be your carer?---Yes.

Alright. Do you know what sort of work he’s done in the past, in terms of legitimate work for money, I mean?---He has done plastering, fixed his – he’s brilliant at fixing cars, but it’s all self-taught, fixing the cars, and, you know, he gets really good at that. I live on acreage, I’m actually in the middle of a severe drought where we’re losing animals left, right and centre at the moment.

Okay?---That, but yes, it would be good if he could come home to me so I could - - -

So if he comes out of detention, gets his visa back - - -?---I’m an hour and half inland from Hervey Bay, he can’t drive, only I can drive. My nearest town is like 30 minutes drive from me.

But he has been talking about relocating possibly to New South Wales?---He is on about it and that, and I said to him if that was the case I would have to move down with him.

Right. So you would relocate with him as you told Mr Hawker?---Yes. Yes.

41    Fifth, it is not in dispute that a medical certificate dated 1 August 2019 concerning Ms Pavey’s state of health was before the Tribunal. The medical certificate described Ms Pavey as suffering a secondary condition of “COPD”, which I understand to refer to the medical condition of chronic obstructive pulmonary disease.

42    Turning now to the decision of the Tribunal, it is plain that the Tribunal did not specifically refer to the health of the applicant’s mother, the evidence of both the applicant and his mother that the applicant would be her carer, whether the removal of the applicant from Australia would have a detrimental effect on the mother and her health, and whether that was relevant to the Tribunal’s decision. At most, the findings of the Tribunal in relation to the impact on the applicant’s mother were as follows:

135.    In his Personal Circumstances Form, the Applicant makes reference to his mother and three sisters residing in Australia. In terms of other close family members, he makes reference to five “family friends” who also reside here. He says he has one uncle/aunt, two nieces/nephews, and one grandparent in Australia. It is reasonable to attribute some measure of weight to this Other Consideration (b) on the basis that those family members are also representative of the extent of the Applicant’s ties to this country.

…

138.    It is clear there is a measure of strength in the Applicant’s ties to Australia. Consistent with Paragraph 14.2(1)(b) of the Direction, those ties, and thus this Other Consideration (b), favours revocation and the Applicant.

…

141.    In the final analysis, any weight attributable to this Other Consideration (b) due to the Applicant’s family ties in this country must be tempered by respective ancillary findings that any time he may be said to have spent contributing positively to the Australian community has been significantly outweighed by his very serious criminal conduct during the corresponding period.

142.    Accordingly, while this Other Consideration (b) may weigh in favour of revocation, it is of limited weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.

43    I note again the Minister’s submissions that the nature of the relationship between the applicant’s mother and the applicant was not sufficiently significant to merit independent examination, that there was no need for the Tribunal to reflect upon specific ways in which the severance of the familial tie would result in adverse impact to the applicant and his family because this issue was effectively subsumed into findings of greater generality, that the Tribunal’s reasons were sufficient in light of the evidence that actually emerged concerning the applicant’s ties with his mother, and that the evidence did not support a finding that the applicant would be the carer of his mother.

44    In respect of these submissions I make the following observations.

45    First, it is not in dispute that the strength, nature and duration of ties to Australia on the part of the applicant was a relevant consideration under the heading “Other considerations” in para 14.2 of Direction No. 79. This included the effect of cancellation on the non-citizen’s immediate family. It is also clear from Direction No. 79 that the “immediate family” meant not only the applicant’s children in this case, but other family members including his mother.

46    Second, it cannot be said that the health circumstances of the applicant’s mother, the prospective role of the applicant as her carer, and the consequences to this proposed arrangement (and Ms Pavey) if the applicant were removed from Australia, was not a live issue before the Tribunal in the context of the effect on family members of cancellation of the applicant’s visa. Notwithstanding the dearth of written material before the Tribunal in this respect – limited, insofar as I can ascertain, to the medical certificate, the earlier statement of the applicant, and the letter by the Senior Counsellor – at the hearing evidence was specifically given by both the applicant and Ms Pavey concerning this issue. Indeed, as is apparent from the excerpt of transcripts I have set out, the Tribunal specifically engaged with the applicant and Ms Pavey in respect of this issue, asking them direct questions about it.

47    Third, although the applicant had earlier been legally represented, it was apparent that he was a litigant in person before the Tribunal, and was not in a position to commit to writing detailed submissions as might have been expected by properly instructed legal representatives. The Minister’s submission that the applicant’s claims (in respect of his mother and his potential role) were insufficiently significant to merit independent examination, must be measured against the applicant’s lack of representation.

48    In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263 the Full Court relevantly observed as follows:

58.    The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated … It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

(emphasis added)

49    (see also Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088, Gummow and Callinan JJ at [24])

50    I am satisfied that the issue of the impact on the applicant’s mother and her health of the cancellation of the applicant’s visa was an issue raised squarely on the material before the Tribunal, and that the Tribunal had a statutory duty to consider it.

51    Fourth, it may well be, as the Minister submits, that the evidence would not ultimately support a finding that the applicant would actually be the carer of his mother. However, this would require a factual finding, by the Tribunal, on the material which was before it, and in light of the satisfaction or otherwise on the part of the Tribunal of the applicant’s claims and the evidence before it (particularly in light of the Tribunal’s specific engagement with witnesses including the applicant in respect of this issue). It is not for this Court to conclude that the applicant’s claim that he would be his mother’s carer lacks merit on the facts as presented, when the Tribunal (which engaged with the applicant) did not make findings one way or the other.

52    Fifth, in the absence of active engagement with, and consideration by, the Tribunal of this aspect of the applicant’s claim – as required by such authorities as Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [65] – the most that can be stated in respect of the Tribunal’s reasons concerning this issue is that it remained unaddressed. In particular I note the following statements of the Tribunal:

135.    In his Personal Circumstances Form, the Applicant makes reference to his mother and three sisters residing in Australia. In terms of other close family members, he makes reference to five “family friends” who also reside here. He says he has one uncle/aunt, two nieces/nephews, and one grandparent in Australia. It is reasonable to attribute some measure of weight to this Other Consideration (b) on the basis that those family members are also representative of the extent of the Applicant’s ties to this country.

…

138.    It is clear there is a measure of strength in the Applicant’s ties to Australia. Consistent with Paragraph 14.2(1)(b) of the Direction, those ties, and thus this Other Consideration (b), favours revocation and the Applicant.

53    I am not persuaded that the Tribunal’s broader reasons concerning the applicant’s ties with his family incorporated a specific finding to the effect that, in fact, he would not be his mother’s carer as he claimed.

54    In my view the applicant quite properly directed the Court’s attention to remarks of Thawley J in FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [89]-[94], in particular the following:

89.    The Minister submitted that the Court should infer from the fact that the terms of cl 14.2(1)(b) were set out in the reasons that the Tribunal considered the impact of the applicant’s removal on his family, despite the fact that there was no reference in the reasons to that being an issue to be considered or any express finding as to what conclusion the Tribunal reached in that regard. The Minister submitted it would be unfair for this Court not to conclude that there was an implicit finding about the impact of separation on the applicant’s partner or family.

90.    The Minister’s submission must be rejected. The Tribunal had an obligation to set out the reasons for its decision: s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth). That included an obligation to set out its findings on material questions of fact and to refer to the evidence or other material on which those findings were based: s 43(2B). 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: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5], [9]-[10] (Gleeson CJ), [44] (Gaudron J) and [69] (McHugh, Gummow and Hayne JJ); Omar at [34(d)]. Such an inference is available because the Court is entitled, by reason of the terms of the statutory obligation, to take the reasons as setting out the facts the Tribunal considered material to its decision, and as referring to the evidence it considered material to its findings; if something is not mentioned then it may be appropriate to infer that it was not considered material.

55    Sixth, I am not persuaded that, had the Tribunal found that the applicant would be his mother’s carer, it was a matter of no significance to the Tribunal’s decision. As Mr Keneally for the applicant correctly submitted, this is a case where the materiality hurdle is met by the applicant, because there is no indication of how the Tribunal would have dealt with this issue had the Tribunal considered it. In this regard, I note comments of the Tribunal at [140] concerning the additional weight the Tribunal was prepared to allocate to the consideration in respect of the applicant’s contributions to the Australian community. It may well be that, had the Tribunal considered the relevant aspects of the relationship of the applicant with his mother, additional weight would have been accorded by the Tribunal to that factor as “Other considerations”, such as to influence the Tribunal’s ultimate decision. Alternatively, it is possible that the Tribunal would not have arrived at a different result. In the circumstances however it is not possible for the Court to predict the Tribunal’s decision.

56    Finally, and notwithstanding the otherwise thorough and thoughtful reasons of the Tribunal in this matter, I reject the proposition that the applicant has invited the Court to scrutinise the Tribunal’s decision with an eye keenly attuned to the perception of error, as explained in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [30] and Collector of Customs v Pozzolanic (1993) 43 FCR 280; [1993] FCA 456.

57    The applicant has substantiated the first ground of the application.

Ground 2

58    In respect of ground 2 of the application, the key issue is whether the Tribunal considered the applicant’s arguments concerning the impediments he would face upon his return to the United Kingdom (in particular given his drug addiction, his mental health and the fact that he would not have any familial support) and, if not, whether that failure amounted to a jurisdictional error.

59    In my view this ground of review can be addressed in short compass. In its reasons the Tribunal relevantly observed as follows:

146.    With specific reference to the three factors appearing in paragraph 14.5(1) of the Direction, I note the Applicant is a man of 27 years of age. In terms of diagnosed medical or psychological conditions, the Applicant says he has respective diagnoses and prescriptions for the following conditions:

Name of medication        Condition prescribed for

Advancer             Anxity [sic], PTSD, ASD, Depression

Vallium                ASD, Anxity [sic]

147.    The asserted medical conditions seem to be managed with the assistance of prescribed medication which should be available to the Applicant in the United Kingdom. The Applicant says he is currently being treated by a “Brissy imagration doctor” and a “Physio”. Again, this level of medical support should be available to him in the United Kingdom.

148.    Near the conclusion of the hearing, a bundle of medical records was tendered and accepted by the Tribunal as Exhibit 8 in the proceedings. While little or nothing turns on those medical records, it is important to record the basis upon which that material was discussed by having reference to the transcript:

“MR HAWKER: Yes, and perhaps if I can just raise one matter briefly about the evidence before submissions, and that is really out of a matter of fairness to Mr Pavey about some records that he hasn’t yet tendered and he may or may not intend to tender to the tribunal, but he has provided us with some clinical records of a sort of medical type nature. There’s a large folder. They’re really of more recent times, you know, transfer medical assessments and all the rest of it, but I only raise it because in the applicant’s reply, the statement of facts, issues and contentions and reply, he does say on the final page, “The applicant submits his medical records” and the applicant, being self-represented, obviously doesn’t have a witness of process and that they’re not technically in evidence before this tribunal, whether he wants to say anything to the tribunal about that.

SENIOR MEMBER: ... Mr Pavey, you would have heard Mr Hawker say what he just said now.

MR PAVEY: Yes, yes.

SENIOR MEMBER: It relates to those extra medical records that have come in. I think what we should do, so that there’s no loose ends or empty corners in the case, maybe I should get a copy of those documents brought into the rest of the documents that I’ve got here so that I’ve got everything from you in front of me, so I don’t make a decision where later on you’re not happy and you might think it could have been different if I did have access to those documents, all right?

MR PAVEY: Yes, that’s cool. Yes, that’s fine. I did send them to General Reviews at AAT and I did send them to Hawkins(?).

149.    The Tribunal agrees with the abovementioned submission that there is nothing in these medical records that suggests the Applicant is receiving any sort of unique or novel treatment in Australia that would not be available to him in the United Kingdom.

150.    There are no significant or substantial language or cultural barriers to the Applicant’s return and re-establishment in the United Kingdom. As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of the United Kingdom.

151.    The United Kingdom is culturally and linguistically similar to Australia. It cannot be said the Applicant will face significant linguistic or cultural barriers were he to be compelled to return there. To the extent that he may face some difficulty in re-establishing himself in the United Kingdom, this would only present as a short term hardship and would not preclude resettlement.

152.    The Applicant appeared motivated to return to remunerative employment upon release from immigration detention. He spoke of operating a car parts business. He also spoke of becoming involved in the solid plastering trade and possibly running his own plastering business. There is little or nothing precluding him from doing the type of work he has done in Australia (or that he intends to do here) in the United Kingdom were he to be returned there.

153.    I are thus of the view that this Other Consideration (e) is of neutral weight to the determination of this application.

60    Unlike in respect of the issue the subject of ground 1, I am not persuaded that the Tribunal failed to consider the applicant’s claims of the hardship he would face if he returned to the United Kingdom. Rather – the Tribunal has considered the impediments the applicant has alleged, but concluded in summary that, in the United Kingdom:

    the applicant would have access to social, medical and economic support,

    there was nothing in his medical records suggesting he was receiving unique or novel treatment in Australia, and

    his economic hardships could be addressed by undertaking the same type of work in the United Kingdom that he had undertaken in Australia.

61    Further, the Tribunal at [135] identified the applicant’s immediate family in Australia.

62    Although the Tribunal did not appear to specifically acknowledge the existence – or absence – of family members of the applicant remaining in the United Kingdom, I infer from the Tribunal’s reasons its finding that all of the applicant’s immediate family are in Australia. To paraphrase comments of the Full Court in Ali v Minister for Home Affairs [2019] FCAFC 93 at [142], it is obvious that removal of the applicant from his extended network of family support would be an impediment to him. However, I consider that the Tribunal’s discussion of the strength of the applicant’s family ties addressed the issue of family support, of him, including at [137] of its reasons. The Tribunal plainly found at [141] that it considered the issue of family support of the applicant as being of less weight than the risk to the Australian public. This was a factual finding, properly made by the Tribunal.

63    In my view ground 2 of the application is not substantiated.

Conclusion

64    In conclusion, the Court is grateful to the legal representatives of the applicant who acted pro bono for the applicant in this matter.

65    In my view the following orders are appropriate:

(1)    A writ of certiorari issue to quash the decision of the second respondent dated 11 October 2019.

(2)    A writ of mandamus issue ordering the second respondent to determine the applicant’s application for review of the first respondent’s decision dated 26 July 2019 according to law.

(3)    The first respondent pay the applicant’s costs of the proceeding, to be taxed if not otherwise agreed.

Associate:

Dated:    23 March 2021