Federal Court of Australia
HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1431
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The Applicant’s application dated 14 April 2021 is dismissed.
2. The Applicant pay the First Respondent’s costs as agreed, or in default of agreement, as may be taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KERR J:
1 This is an application for a writ of certiorari to quash a decision of the Administrative Appeals Tribunal (the Tribunal) dated 14 April 2021: HRZN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1035. That decision had affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Delegate) not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return (Permanent) visa (visa).
2 The Applicant seeks further or alternatively a writ of mandamus requiring the Tribunal “to consider whether the cancellation decision should be revoked according to law”.
Background
3 The Applicant in this proceeding is a national of Vietnam. He travelled to Australia in 1980 when he was just 7 years old as part of the large exodus of families of people associated with the defeated former South Vietnamese regime. He left Vietnam with his uncle and brother in a small fishing boat. Fortunately, a sea freighter picked him up and he ultimately landed in Adelaide. He was then shortly afterwards granted a visa allowing him remain in Australia.
4 His parents and sisters remained behind in Vietnam. One of his sisters since has relocated to Australia. She is now living with his brother. His parents have died. His remaining brother and sister still live in Vietnam.
5 The Applicant has lived in Australia since he arrived in Adelaide and has not ever travelled except for a trip to Vietnam with his children in 2013, when he visited his family for a holiday. Both of those children are now adults. Both hold Australian citizenship.
The Tribunal’s Decision
6 It was conceded before the Tribunal that the Applicant had an extensive criminal record within the meaning of s 507(7) of the Migration Act 1958 (Cth) (Migration Act) and thus did not pass the character test for the purposes of s 501CA(4)(b)(i).
7 What therefore was in issue was whether there was “another reason” why his visa should not be revoked. The Applicant had made representations in response to the Minister’s invitation to advance reasons why his visa should be restored. In addressing that question in light of those representations the Tribunal, standing in the shoes of the Minister’s delegate on review, was obliged to comply with Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No 79).
8 The Tribunal referred to the terms of Direction No 79 before turning to the specifics of the Applicant’s representations. The Tribunal observed, inter-alia, as follows:
29. Paragraph 8 of the Direction provides that:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa Applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary consideration should generally be given greater weight than other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
30. While the Direction provides that primary considerations should generally be given more weight, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.
(footnotes omitted)
9 The Tribunal then noted that [13(2)] of Direction No 79 states that in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa that the following are primary considerations: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) the expectations of the Australian community.
10 There is no challenge to the Tribunal’s reasoning with regard to the first two of those primary considerations. It is therefore sufficient to refer only briefly to its reasoning and conclusions in those regards.
11 In respect of protection of the Australian community from criminal or other serious conduct, the Tribunal found that the Applicant had an extensive criminal history dating back to 1994 including for offences involving theft, burglary and acts of violence. His most recent offending had involved two counts of trafficking in a controlled drug for which he had been sentenced to 2 years, 9 months and 18 days imprisonment with a non-parole period of 1 year and 9 months. In his sentencing, the judge concluded having regard to his antecedents that his prospects for rehabilitation were poor.
12 The Applicant did not dispute his criminal history but on his behalf it was submitted that drug use including his addiction to heroin had significantly impacted his capacity to make sensible and rational decisions. His wife had died of an overdose. While in the past the Applicant had a poor record of sticking to commitments to stop using drugs he had undertaken counselling and mental health sessions while in detention and as a result, it was submitted, he was no longer drug dependent. He had finished his methadone treatment a year before. Because it would be his last chance, if the Applicant was to be permitted to remain in Australia the risk of him resuming using drugs and reoffending would be extremely low to non-existent. His children and friends would support him in his determination not to go back to his old ways.
13 However, the Tribunal was sceptical of those submissions. Its reasoning, rejecting them, was as below:
66. …, the Tribunal accepts the respondent’s contention that while the applicant has clear incentives not to relapse and reoffend he had clear incentives previously and yet despite those incentives he relapsed back into drugs and reoffended. This is particularly so in the case of his desire not to adversely impact his children. It is clear from the evidence before the Tribunal that despite clearly understanding the potential adverse impact his relapse back into drug use and offending would have for his children on previous occasions the applicant nonetheless did so. In the same way, despite the very significant risk of the applicant having his visa cancelled and being forced to return to Vietnam if he reoffended the applicant did so. In this context it is significant that the applicant previously received a warning from the Department of exactly that potential outcome. While recognising that such incentives to not reoffend can operate to some degree as factors mitigating the risk of the applicant reoffending, the Tribunal is satisfied that the reliance that can be placed on such factors in the applicant’s circumstances is limited.
67. Having had regard to all of the circumstances of the applicant’s case, on the basis that the applicant’s latest abstinence has not yet been tested in the community and given the extent of his previous drug use history together with his own acknowledgement of the need for him to remain vigilant in his efforts to maintain his abstinence from drugs, the Tribunal is satisfied that there still remains a genuine risk of relapse back into serious drug use.
68. The Tribunal is satisfied that the risk is not minimal or trivial. Rather, the risk is real and significant. The Tribunal is also satisfied that in the event the applicant relapses back into drug use his risk of engaging in offending conduct similar to his previous offending, including drug related offending, violent offending and other serious offending, is extremely high.
69. Given the serious consequences such offending could potentially have for innocent members of the Australian community the Tribunal is satisfied that the risk to the Australian community is an unacceptable one.
14 In light of those conclusions, the Tribunal was satisfied that the first primary consideration “weighs very heavily against a revocation of the applicant’s visa”.
15 The Applicant did not advance any submission in respect of the best interests of minor children. The Tribunal accordingly gave the second primary consideration neutral weight.
16 In respect of the third primary consideration the reasoning of the Tribunal as is material was as follows:
76. Having regard to the applicant’s significant history of criminal offending committed over an extended period of time, the very serious nature of some of the applicant’s offending and the assessed unacceptable risk of the applicant reoffending, the Tribunal is satisfied that this consideration weighs against the revocation of the mandatory cancellation of the applicant’s visa. However, in considering the weighting to be given to this consideration the Tribunal has been mindful of a number of broader circumstances of the applicant’s case including:
(a) The very substantial period of time the applicant has lived in Australia;
(b) The efforts he has made to rehabilitate during his current period in custody;
(c) The difficult circumstances of his early life that the Tribunal accepts have contributed to his drug addiction;
(d) The applicant’s ongoing health issues including his hepatitis B and D condition and the ongoing physical difficulties he continues to experience as a consequence of carpal tunnel syndrome post-surgery complications;
(e) The significant impediments the applicant is likely to face if required to return to Vietnam; and
(f) The impact the applicant’s removal from Australia would have for the applicant’s family and in particular his two adult children.
77. Notwithstanding these mitigating broader circumstances, given the clear and sustained manner in which the applicant has breached the trust and expectations of the Australian community through his serious criminal offending the Tribunal is satisfied that this consideration weighs heavily against the revocation of the mandatory cancellation of the applicant’s visa.
17 Thus the Tribunal concluded the expectations of the Australian community “weighs heavily against the revocation of the mandatory cancellation” of his visa.
18 Having addressed the three primary considerations the Tribunal then gave attention, in turn, to other considerations Direction No 79 required it to address.
19 In respect of the first of those considerations; Australia’s international non-refoulement obligations, the Tribunal rejected that the Applicant was owed any such obligations in respect of the risk he would face as a past drug user on return to Vietnam.
20 The Applicant gave evidence that he dreaded that prospect. He understood that people who were drug users or thought to be drug users were locked up, chained and forced to do hard labour.
21 The Tribunal accepted, based on the evidence before it, including DFAT Country information, that Vietnam addressed drug use and drug addiction though measures which included dedicated drug treatment centres. The Tribunal accepted that some such centres held people against their will and in some, the conditions were harsh and involved elements of forced labour for little or no monetary compensation.
22 In rejecting the relevance of the above as giving rise to any obligations of non-refoulement in the Applicant’s instance the Tribunal reasoned as follows:
85. While the Tribunal accepts that compulsory drug centres continue to operate in Vietnam and in some instances involve harsh and degrading conditions, in assessing the applicant’s claims in this respect the immediate question to be determined is whether the Tribunal is satisfied that there is a real chance or risk of the applicant personally being detained in such a centre and being subjected to such treatment.
86. The applicant’s personal circumstances are important in this assessment. The applicant is not presently a drug user. On his own evidence the applicant has not used illicit drugs for approximately 4 years and has been free of the methadone program for approximately 12 months. There is no evidence of the applicant having committed a drug offence in Vietnam or having otherwise been a subject of interest by Vietnamese authorities in relation to drug use, including historical drug use.
87. The Tribunal accepts that sentencing comments in respect of the applicant’s criminal offending, including his drug offending, are on the public record in Australia, however there is no independent evidence before the Tribunal that Vietnamese authorities are aware of such comments nor is there any independent evidence that they are likely to become aware of such comments in the future, nor is there any independent evidence that in the event they were to become aware of such comments that it is likely the Vietnamese authorities would seek to have the applicant detained on his return to Vietnam in a drug treatment centre, or in any other manner, due to his historical drug use in Australia.
88. The Tribunal also notes that the applicant himself felt sufficiently comfortable to travel to Vietnam in 2013 despite his prior drug use and drug related convictions in Australia. The applicant also stated on his personal circumstances form completed in July 2013:
I do not have concerns about being sent to South Vietnam. My main concerns which scary me [sic] and frighten me is that I am the sole parent of my 2 children who live with me all the time. They are of a young age and I rely on me [sic] for support, guidance and love as their mother passed away in 2012. They have emotional/psychological issues as a result of their mother dying and have counsellor. My children really need me and I need them.
89. In his more recent personal circumstances form completed in December 2017 in response to a question regarding any fears or concerns the applicant has on returning to Vietnam the applicant simply states “fled Vietnam” but makes no mention of a concern he now claims to have regarding his potential to be held in a drug treatment centre.
90. Counsel for the applicant referred the Tribunal to the September 2011 Human Rights Watch report in support of his contention that the applicant is at risk of detention in Vietnam on the basis of his historical drug use in Australia due to the practice of drug treatment centres in Vietnam being used for post-rehabilitation treatment. More specifically, counsel referred the Tribunal to what was described in the report as the Ho Chi Minh City pilot project which involved the use of drug treatment centres as a path of treatment and post –rehabilitation recovery for drug addicts. The report references legislative amendments adopted by the National Assembly of Vietnam in response to the pilot project. The report notes disagreement between Ho Chi Minh City authorities and some members of the National Assembly as well as the media as to the success of the pilot project. The report goes on to state as follows:
Despite the debate, Ho Chi Minh city authorities ultimately prevailed and the National Assembly agreed that the approximately 6000 people detained at that time for “post rehabilitation management” could continue to be detained beyond the project’s end date.
More significantly, the National Assembly amended the Drugs Law to allow 1 to 2 years of “post rehabilitation management” at the national level. According to the implementing decree (2009), the additional period of up to 2 years “post rehabilitation management” can take place either at home (under the supervision of the commune-level People’s Committee) or in a drug detention centre. Thus, according to current law, a person can spend up to 4 years in Vietnam’s drug detention centres.
Similar to the Ho Chi Minh City pilot project, people are to be detained if deemed to be at “high risk of relapse” i.e., if they fall into any of the following categories:
1 Have been addicted to drugs for five years or more (or, for injection drug users, for two years or more);
2 Have already been detained in compulsory drug detention centres three times or more;
3 Have been warned more than three times or punished by isolation [in a disciplinary room] more than twice for violating the internal rules of drug detention centres; or
4 Have no occupation, and unstable occupation, or no specific place of residence.
91. The Tribunal rejects the contention put by counsel for the applicant that the reference above is one which could reasonably be said to apply to the applicant on the basis of his historical drug use in Australia. The Tribunal also rejects the contention put by counsel for the applicant that the reference in point 4 above could reasonably be said to apply to the applicant or likely would apply to the applicant at some point in the future because he is at risk of being without a specific place of residence or without an occupation or stable occupation in Vietnam. First, in the Tribunal’s view, caution should be exercised in placing too great a weight on the precise wording of the report given that it is a third party report that purports to summarise the position in Vietnam and is not an official statement of policy or the law in Vietnam. However, in any case, having carefully considered the references in the report the Tribunal is satisfied that the description in the report of those at risk of being detained due to being at “high risk of relapse” is not a reference to someone in the circumstances of the applicant, that is a person who engaged in historical drug use in another country, who has committed no drug related offence in Vietnam, has not come to the attention of Vietnamese authorities as a consequence of drug use and who has been free of illicit drug use for approximately 4 years. Rather, it is a reference to those who are or have been detained in such facilities previously or who are otherwise known to Vietnamese authorities due to their more recent drug related activities in Vietnam. More specifically, the Tribunal does not accept that the reference in point 4 above to those having no occupation, an unstable occupation, or no specific place of residence is intended to suggest that anyone in those circumstances is at risk of being held in a drug detention centre for post-rehabilitation treatment regardless of whether or not they have a current or recent issue with drug use in Vietnam. There is no explicit mention of such a risk in the DFAT report and on the whole of the evidence before it the Tribunal is not satisfied that such a risk is a real or substantive one.
92. Further, while the Tribunal accepts that if the applicant were to engage in illegal drug use in Vietnam at some point in the future then he would be at some genuine risk of being detained in a drug treatment centre, they are not his present circumstances, and the Tribunal is not satisfied that Australia’s international non-refoulement obligations can be said to be presently triggered due to a risk of the applicant choosing of his own volition to engage in conduct which is illegal in both Vietnam and Australia at some point in the future.
93. For these reasons, the Tribunal is not satisfied that the applicant’s stated fear of persecution or other serious harm as a consequence of being detained in a drug treatment centre in Vietnam is a well-founded fear or that there is a real risk of him facing such persecution or harm.
94. It was also put on behalf of the applicant that people associated with drug use in Vietnam can suffer stigma and discrimination which can impact on access to employment and health care and other services. The most authoritative independent evidence on this point was a reference in the DFAT Country Information Report where it is stated at 2.29 quoted above that “post release services are limited, and the stigma of being a 06 centre inmate often impedes reintegration into communities in terms of employment and accessing healthcare”. This reference is of course a reference to those who have previously been held in a drug treatment centre. As addressed above, that is not the applicant’s present circumstance nor does the Tribunal consider there to be a real risk of it occurring based on the applicant’s circumstances. However, the Tribunal accepts that in Vietnam a level of stigma is likely to attach to those who are or who have previously engaged in drug use even in circumstances where they have not been held in a drug treatment centre and that such stigma has the potential to make accessing employment opportunities, health services or other government services more difficult. However, the Tribunal is not satisfied on the evidence before it that the applicant’s historical drug use in Australia is likely to be well known in Vietnam in a way that would cause him to be subject to such stigma to a substantive degree. In any case, even if it were to become well known, the Tribunal is not satisfied that the harm the applicant is likely to suffer as a consequence would rise to a sufficiently serious level of harm that would trigger Australia’s international non-refoulement obligations. The Tribunal has dealt with the potential impact of such stigma further in the section below dealing with impediments on return.
23 The Tribunal then rejected that the Applicant would face convention based harm by reason of denial of access to health care on his return although it acknowledged that he would be likely to face some difficulties in accessing treatment for his Hepatitis B and D conditions. The Tribunal indicated that it would give more detailed attention to that difficulty when considering the impediments he might face upon his return.
24 The Tribunal also rejected there being any realistic risk of the Applicant facing adverse consequences for having “fled” Vietnam as a 7-year-old child.
25 Because it reasoned that Australia did not owe non-refoulement obligations in respect of the Applicant, the Tribunal concluded that that consideration was to be given neutral weight.
26 In respect of the second consideration: the strength nature and duration of the Applicant’s ties to Australia, the Tribunal accepted the evidence of his family members regarding the genuinely close relationships that they had with him. Having regard “predominantly” to the impact on the Applicant’s two adult children the Tribunal concluded, “this consideration weighs significantly in favour of a revocation of the applicant’s visa.”
27 In respect of the third and fourth considerations: impact of Australian business interests and impact on victims, the Tribunal noted there was no specific evidence before it as would relate to those considerations. It gave each of those considerations neutral weight.
28 In respect of the fifth consideration: the extent of impediments the Applicant would face if removed, the Tribunal accepted that the Applicant suffered from Hepatitis B and D.
29 The Tribunal accepted that the Applicant’s health condition was chronic. In the absence of anti-viral medication there was a risk of his Hepatitis status worsening with the possibility of cirrhosis, joint pain and potentially liver failure or cancer and an earlier than expected death.
30 The Tribunal further accepted that if the Applicant returned to Vietnam he would be unlikely to be able to access appropriate medication to treat his Hepatitis B and D. The drugs he needed were expensive, they would not be available through a public system and the Applicant probably would not be able to afford them even with the help of his family. Its reasoning in that regard was as follows:
124. The Tribunal is not satisfied on the basis of the evidence before it that the applicant is likely to have access to anti-viral medication or other treatment in the management of his hepatitis condition that he currently has access to in Australia. The Tribunal does not accept that it is likely he would be able to secure treatment of that kind through the social health insurance scheme. The Tribunal is satisfied that the applicant currently has no financial means with which to pay for such treatment and that on a return to Vietnam there is a real risk that the applicant will not have such means for the foreseeable future. While there was evidence from the applicant’s daughter that she may be able to assist in some way financially she is young, with limited means herself and will have her own financial obligations to meet. The same can be said for the applicant’s son although he did not specifically address the issue in his evidence.
31 The Tribunal also accepted that the Applicant had post-surgery complications in respect of a procedure for his carpal tunnel syndrome. Those complications had caused him to suffer numbness in his fingers when cold. They occasioned difficulty in lifting heavy objects. The Tribunal accepted that in the absence of follow up surgery (which to date he had not pursued) those symptoms would be likely to limit to some degree the Applicant’s capacity to undertake “more physically onerous or repetitive manual labour” but rejected that it would otherwise prevent him undertaking manual labour.
32 The Tribunal acknowledged that the Applicant would be at higher risk of relapse back into drug use in the absence of the professional counselling and mental health sessions he was presently benefitting from, although noting “however, ultimately that is a matter within the applicant’s control”.
33 The Tribunal however rejected certain other submissions advanced on his behalf. Its reasoning was as follows:
125. While the Tribunal accepts that the applicant will have some challenges in securing employment on a return to Vietnam, at least in the short term, it is not satisfied that his employment prospects over the medium to longer term are as hopeless as contended on behalf of the applicant. The Tribunal accepts that the applicant will have some challenges by virtue of his ad hoc employment history in Australia, lack of familiarity with Vietnam and his lack of substantive family support in Vietnam. The applicant’s direct evidence was that he has a brother and sister who currently reside in Vietnam. The applicant told the Tribunal that his family in Vietnam are not well off and have their own struggles at present and that he did not believe they could help him in re-establishing himself in Vietnam. On the basis of the applicant’s evidence the Tribunal accepts that the applicant is not able to rely on his family in Vietnam to assist him in any transition.
126. The Tribunal accepts that while the applicant understands basic Vietnamese, given the length of time he has lived in Australia he is no longer fluent in the language. While the medium term he will have some degree of language barrier which will adversely impact his employment prospects to a degree, as well as make accessing government or other support services in Vietnam more difficult. This is counter-balanced to a degree by his good English language skills which are likely to present some employment opportunities requiring such skills.
127. The Tribunal accepts that the applicant’s post-surgery complications will limit his capacity to undertake more onerous physical employment. However, as indicated earlier, the Tribunal is satisfied that the applicant is not without some capacity to undertake physical tasks however it does accept that his capacity to undertake heavy lifting or engage in repetitive manual tasks, including writing for lengthy periods, is likely to be significantly impacted in the absence of further treatment.
128. The applicant presented as a person of reasonable intelligence which is consistent with evidence of some success at school although it is acknowledged that his schooling has been interrupted. There was also evidence before the Tribunal of the capacity of the applicant to apply himself in a focused way and to demonstrate some resilience. His early success in soccer is an example of that characteristic.
129 The materials before the Tribunal suggest that the Vietnamese economy has been performing comparatively well over recent years. The DFAT Country Information Report notes that the World Bank has described Vietnam as “one of the most dynamic emerging countries in East Asia” and that Vietnam has “one of the world’s fastest growing economies”. Further, the report notes that Vietnam’s poverty rate declined from 20.8 per cent in 2010 to 9.8 per cent in 2016. The report also notes that the World Bank reported in 2018 that Vietnam’s employment rates were high and unemployment rates were very low by global standards although job quality was also low with only 10 per cent of jobs in professional or managerial occupations. The Tribunal accepts that Vietnam’s economic performance has been impacted to some degree by the Covid-19 pandemic, however, given the strength of the economy leading into the pandemic the Tribunal is satisfied that the economic future for Vietnam remains broadly positive.
130. The applicant also contends that his employment prospects in Vietnam are likely to be adversely impacted because of the stigma associated with people with a history of drug use. The Tribunal accepts that drug use and drug addiction is viewed very negatively in Vietnam and that a stigma can attach to a person who is known to have engaged in drug use which in turn can negatively impact a person’s employment prospects as well as access to other government services to some degree. However, there was no evidence before the Tribunal that the applicant’s historical drug use in Australia is well known in Vietnam. While the Tribunal accepts that there remains a risk that the applicant’s drug history might become known at a future point amongst a very localised group of people who know the applicant or his family personally, the Tribunal is satisfied that any stigma the applicant might suffer as a consequence is likely to be limited given that he has not engaged in any drug offending in Vietnam, his prior history of drug use in Australia is now aged to some degree, and, in the view of the Tribunal, there is no reasonable basis to expect that the applicant’s drug use history in Australia is likely to become widely known in Vietnam. Accordingly, while the Tribunal accepts there is a risk the applicant’s employment prospects or access to other government services may be adversely impacted to some degree by stigma associated with the applicant’s historical drug use, the Tribunal is not satisfied the impact is likely to be material.
131. Having considered all of the evidence on the applicant’s employment prospects, the Tribunal is satisfied that while the applicant is likely to have some immediate impediments in obtaining employment in the short term, given that he is still of a working age, has demonstrated reasonable intelligence, good English language skills and other positive personal characteristics as well as the broadly positive outlook for the Vietnamese economy, the Tribunal is satisfied that the applicant’s medium to long term employment prospects are reasonable. The Tribunal accepts that the quality of employment accessible to the applicant is likely to be lower than would be the case in Australia however, the Tribunal is satisfied the applicant is likely to have sufficient financial means to secure reliable accommodation and maintain a basic standard of living comparable to other citizens of Vietnam over the medium to longer term. Notwithstanding this the Tribunal accepts that the applicant’s financial means to pay for health services are still likely to be constrained.
132. For these reasons, the Tribunal is satisfied that the applicant is not likely to have access to anti-viral medication or other treatment of his hepatitis condition on his return to Vietnam and that there is a real risk of the applicant suffering significant adverse consequences as set out above. This consideration has weighed very significantly in the Tribunal’s overall assessment of this matter.
133. The Tribunal also accepts that the applicant is unlikely to be able to secure access to the same level of counselling and mental health services that he currently has access to in Australia. This is due to the limited nature of the Vietnamese social health insurance scheme and the applicant’s lack of financial capacity to meet the costs of such services as well as the more limited availability generally of such services in Vietnam. The DFAT Country Information Report notes:
A 2018 joint UNICEF, the Ministry of Labour-Invalids and Social Affairs (MOLISA), and ODI study of Mental Health and Psychosocial Well-being among Children and Young People in selected provinces and cities in Vietnam reinforced that mental health and psychosocial problems were widespread and increasing in Vietnam, and, despite some progress, the service environment and response remained largely inadequate. The lack of mental health services was particularly acute in remote provinces and services often focused on severe mental health disorders.
134. The Tribunal accepts that in the absence of the type of counselling and mental health services the applicant has had the benefit of while in custody in Australia, the applicant is likely to find the challenges of avoiding relapse back into drugs are more difficult. Ultimately however the avoidance of a relapse back into drug use is a matter which is within the control of the applicant.
135. The Tribunal also accepts that given the limited nature of the Vietnamese social health insurance scheme together with the applicant’s limited financial capacity, there is a real risk that the applicant will not be able to access follow up treatment in respect of his post -surgery complications from his carpal tunnel syndrome surgery. Accordingly, it is likely that the applicant will need to live with the symptoms he complains of in relation to this condition including numbness in his fingers and hands and difficulty with lifting heavy objects or undertaking repetitive tasks.
136. In addition, the Tribunal accepts that in the event the applicant is required to return to Vietnam he will need to undertake his transition back into life in Vietnam without the in - person support of his family and friends in Australia. As indicated above, while the Tribunal accepts that the applicant has some family living in Vietnam it is satisfied that they will have a very limited capacity to assist him. However, the Tribunal is satisfied that in the short term the applicant would have the benefit of various formal programs of support to assist him as a returnee to re-establish himself in Vietnam. For example, as noted in the DFAT Country Information Report:
A number of formal programs support the reintegration of returnees, including with the support of foreign governments. The International Organisation for Migration provides financial assistance for education or income-generating activities or in-kind goods.
34 Having taken into account the difficulties the Applicant would be likely to face in accessing medication and other treatments for his health conditions and treatment to assist him in his ongoing rehabilitation for drug use, the Tribunal concluded that the extent of the impediments the Applicant faced, “weighs heavily in favour of revocation of the cancellation of [his] visa”.
35 The Tribunal then turned to its task of evaluating “whether or not to exercise the discretion in section 510CA(4)(b)(ii) of the Act to revoke the cancellation of the applicant’s visa for ‘another reason’” In that regard it recorded the following:
139. The Tribunal is satisfied that the applicant’s criminal offending is very serious both in terms of some individual offences but also in terms of its overall cumulative impact. The applicant’s offending has including drug trafficking with significant adverse impacts on individuals, families as well as the broader community. The offending has also included serious driving offences, violent offending and offences against police together with multiple breaches of bail and other court orders. There is no question in the mind of the Tribunal that if the applicant were to engage in further offending of the same or similar nature it has the potential to cause significant harm to members of the Australian community both from a physical and psychological perspective. For the reasons set out earlier, while recognising the positive efforts the applicant has made towards rehabilitation the Tribunal is satisfied that the risk of the applicant relapsing back into drug use is real and not minimal or trivial, and the risk of him reoffending again if he does relapse back into drug use is extremely high. The Tribunal is satisfied that the risk to the Australian community is unacceptable and that, therefore, the protection of the Australian community consideration weighs very heavily against revocation of the mandatory cancellation of the applicant’s visa.
140. The Tribunal is also satisfied that in light of the extent and seriousness of the applicant’s offending, the expectations of the Australian community consideration weighs heavily against the applicant notwithstanding some mitigating considerations.
141. For the reasons set out above, the Tribunal is satisfied that the expectations of minor children and international non-refoulement considerations weigh neutrally in this matter.
142. The Tribunal recognises the significant ties the applicant has developed to Australia by virtue of the length of time he has lived in Australia and also through his family and broader social connections. The Tribunal recognises in particular the significant adverse impact a decision not to revoke the cancellation of the applicant’s visa would have for his two adult children. The effect of such a decision will be to deny them the opportunity to have their father’s presence in their lives in Australia. This consideration has been particularly significant in the Tribunal’s overall weighing of this matter.
143. The Tribunal also recognises the significant impediments the applicant is likely to face on a return to Vietnam. The Tribunal accepts that the applicant’s family in Vietnam are not in a position to provide meaningful assistance to the applicant in any transition. He has been out of the country for a very significant period of time and, at least in the short term, will have some level of language barrier in Vietnam. The Tribunal accepts that he will find securing employment challenging in the short term although it considers his medium to long term employment prospects to be reasonable given his relative intelligence, English skills, other positive personal characteristics and the Tribunal’s view that the broader outlook for the Vietnamese economy remains positive. The Tribunal is satisfied that in the medium to longer term the applicant will be able to maintain basic living standards that are comparable to the general population of Vietnam. In the short term he will have the benefit of programs of support for the reintegration of returnees. The Tribunal is satisfied that the applicant is unlikely to be able to access the anti-viral and other medical treatment he currently has access to in Australia in the ongoing management of his hepatitis B and D conditions, nor is he likely to be able to undertake follow up treatment for his post carpal tunnel surgery complications, nor the counselling and mental health services he currently has access to in the ongoing management of his rehabilitation from drug use. The Tribunal acknowledges that as a consequence the applicant is at a real risk of suffering significant adverse consequences from his lack of access to such treatments in Vietnam as outlined earlier. These considerations have been very significant in the Tribunal’s overall weighing of this matter.
144. Notwithstanding these considerations, in the Tribunal’s view, given the very s serious consequences that could flow to members of the Australian community if the applicant were to reoffend again in the same or similar manner and the unacceptable risk of that occurring, the protection of the Australian community consideration is the determinative consideration in the circumstances of this case.
36 For those reasons the Tribunal affirmed the decision under review.
The Application
37 In respect of that decision, the Applicant brings proceedings in this Court under s 476A of the Migration Act seeking relief as referred to at [1]–[2] above. The grounds (as amended on 5 August 2021) upon which the Applicant relies, omitting particulars 1 (a), 1(b) and 1(c) which his counsel advises are no longer pressed, are as follows:
Amended grounds of application
1. The Tribunal’s decision is illogical or irrational.
Particulars
a) not pressed
b) not pressed
c) not pressed
d) The Tribunal found at [127] of the decision that the Applicant would not be unable to undertake physical tasks, leading to a conclusion at [131] that his prospects of employment were reasonable.
3) At [117] and [118] of the decision, the Tribunal found that the Applicant suffered from ongoing symptoms of carpal tunnel syndrome.
f) The Tribunal’s findings are therefore again in direct contradiction to one another, given that the acceptance of the Applicant’s carpal tunnel symptoms would preclude from him from performing physical work.
g) The Tribunal’s findings on the above matters are therefore illogical, irrational or unreasonable.
2. The Tribunal’s decision is affected by legal unreasonableness.
Particulars
a) At [98], the Tribunal concluded that the Applicant did not engage Australia’s non-refoulement obligations.
b) At [137], the Tribunal found that the “extent of impediments if removed” consideration weighed “heavily in favour of revocation of the cancellation of the Applicant’s visa”.
c) The Tribunal accepted at [132] that the Applicant would likely not have access to anti-viral medication or other treatment for his chronic hepatitis on his return to Vietnam, such that “there is a real risk of the Applicant suffering significant adverse consequences”.
d) The Tribunal had evidence before it that the Applicant’s health condition would deteriorate if not treated, a contention accepted by the Tribunal. A consequence of such deterioration would include the Applicant’s death (at [116]).
e) The findings by the Tribunal that:
(i) the Applicant was not owed non-refoulement obligations; and
(ii) the decision of the Minister should nonetheless be affirmed (at [144] & [145]), when the Tribunal was on notice of (and indeed accepted) evidence that the Applicant would not have access to health care if returned to Vietnam, are therefore both unreasonable.
3. The Tribunal failed to consider an integer of the Applicant’s claims.
Particulars
a) The Tribunal found at [91] that the Applicant was not at risk of persecution on the basis of his historical drug use. In so doing, the Tribunal rejected that the Applicant’s non-refoulement claims.
b) In rejecting this claim, the Tribunal had reference to material submitted by the Applicant, being a Human Rights Watch report (the report). The Tribunal’s reasoning indicated that the Tribunal did not believe the findings of the report were analogous to the Applicant’s circumstances, given that the report referenced individuals who were at a “high risk of relapse”, which the Tribunal did not consider the Applicant to be.
c) The application of the Tribunal’s reasoning in this regard is deficient, as the contained findings that were relevant to the Applicant’s circumstances.
d) In rejecting the report, the Tribunal failed to consider an integer of the Applicant’s claims.
4. The Tribunal failed to take into account a mandatory relevant consideration.
Particulars
a) In considering the expectations of the Australian community, the Tribunal found that there “were a number of broader circumstances of the Applicant’s case” (at [76]).
b) It was therefore incumbent on the Tribunal, in considering whether it “may be appropriate” to revoke the cancellation (in accordance with Direction no. 79 issued by the Minister), to assess those circumstances particular to the Applicant, in order to reach an evaluation of the appropriateness of doing so.
c) In dismissing the Applicant’s circumstances as merely “mitigatory” (at [77]), the Tribunal omitted to undertake that assessment, and thereby failed to take into account a mandatory relevant consideration.
Submissions and Consideration
Ground 1
38 Ground 1 (stripped of the first three particulars, which Mr Healer, appearing for the Applicant, advised were no longer pressed) involves the contention that because of logically inconsistent findings, the Tribunal’s reasoning with respect to the capacity of the Applicant to undertake forms of manual labour was vitiated by legal error.
39 In that regard, the Applicant cited Wigney J’s reasoning in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [54] as support for the proposition that “jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings ‘on the way’ to the final conclusion”.
40 The authority of that proposition may be accepted but the foundational premise advanced in Ground 1 for it to be applied in this instance is, at best, flimsy. The findings of the Tribunal which are submitted to be in “direct contradiction” with each other are referred to in the particulars as follows:
At [117] and [118] of the decision, the Tribunal found that the Applicant suffered from ongoing symptoms of carpal tunnel syndrome.
The Tribunal found at [127] of the decision that the Applicant would not be unable to undertake physical tasks, leading to a conclusion at [131] that his prospects of employment were reasonable.
41 The relevant passages of the Tribunal’s reasons at [127] and [131] are set out at [33] above. I need not repeat them. The Applicant, while omitting other context, including that his English skills might assist him to obtain work in Vietnam, correctly summarises its conclusion as including that the Applicant would, notwithstanding some limitations, not be unable to undertake physical tasks.
42 However there is nothing in that reasoning which is inconsistent with, let alone in direct contradiction to, what the Tribunal recorded as its findings at [117]–[118] as set out below:
117. The applicant has also had post-surgery complications following carpal tunnel syndrome surgery on both hands. In his evidence the applicant complained of numbness in his fingers when cold and difficulty lifting heavy objects. The applicant has also complained of poor circulation in his hands and fingers, particularly when cold. The applicant gave evidence that he had previously been recommended for follow up surgery but that it had not eventuated.
118. The Tribunal accepts that the applicant has had post-surgery complications in relation to this condition and that in the absence of further surgery the applicant is likely to continue to suffer the adverse symptoms he has described. The Tribunal accepts that the symptoms the applicant suffers in this respect are likely to limit to some degree his capacity to undertake more physically onerous or repetitive manual labour however it does not accept that he would not be able to undertake any form of manual labour.
43 Given that analysis, I intend no disrespect by not referring to the Respondent’s submissions. I dismiss Ground 1.
Ground 2
44 Ground 2 asserts legal unreasonableness in the Tribunal’s findings that the circumstances of the Applicant did not engage Australia’s non-refoulement obligations. The Ground on its face is premised on the inconsistency of that finding with the Tribunal’s ultimate conclusion that the decision of the Minister should be affirmed in circumstances that the Tribunal was on notice, and had accepted, that the Applicant would not have access to health care if returned to Vietnam.
45 Ground 2 does not attack on the Tribunal’s reasoning set out above at [22] above. Save as advanced under Ground 3 the Applicant does not submit that the Court would be entitled to find error in the Tribunal’s analysis that non-refoulement obligations were directly engaged with respect to the provisions of the Refugee Convention. The Applicant does not dispute that the Tribunal gave clear reasons (which it does not challenge) explaining why his incapacity to access adequate health care was not because treatment would be denied to him as a member of a particular social group, but because with the income he would be likely to earn he would not be able to afford it.
46 What the Applicant advanced (as became apparent in oral argument) is that Ground 2 was to be (beneficially) understood as alleging that the Tribunal had overlooked that complementary protection obligations which might give rise to non refoulement obligations may have been owed to the Applicant pursuant to other international instruments Australia was party to.
47 A difficulty in that regard is that Mr Healer, who had also appeared for the Applicant in the Tribunal, expressly (frankly and properly) acknowledged that that proposition had not been advanced before Tribunal. Instead, as the Tribunal had foreshadowed at the end of paragraph [94] of its reasons, Mr Healer had then put forward the difficulties the Applicant might have in accessing the drugs he needed only as a factor relevant to the impediments the Applicant would face on return. He did not dispute that in that context the Tribunal had dealt with that proposition both comprehensively and favourably to the Applicant.
48 Having regard to the manner in which oral argument on Ground 2 evolved the Court permitted both parties to file supplemental written submissions as to whether or not that Ground might be upheld on the basis that the Tribunal had failed to discharge its duty in not finding that, as a consequence of Australia’s obligations in respect of complimentary protection under other international treaties, the Applicant was owed non-refoulement obligations.
49 The Applicant’s written submissions pursuant to that leave were as follows:
1. The statement of facts, issues and contentions filed with the Tribunal on the Appellant’s behalf stated the following:
International non-refoulement obligations
62. The Applicant claims to be a person in respect of whom Australia owes nonrefoulement obligations. This is not a protection visa application and the criteria under s 36 of the Migration Act should be set aside immediately.
2. As the Tribunal found at [94], the claims of harm the Appellant fears on being returned to Vietnam were contained in his written materials and, while describing them as “not substantively pressed” at the hearing (at least in comparison to the greater time devoted to the overlapping consideration of impediments to removal), they were, self-evidently, nonetheless “pressed” (ie. not abandoned).
3. It was in this context that the Tribunal observed at [78] the following:
It was submitted on behalf of the applicant that the applicant is owed international nonrefoulement obligations due to the risk the applicant would likely face on his return to Vietnam. The applicant has claimed a fear of persecution or other serious harm including arbitrary detention, torture or other cruel, inhuman or degrading treatment as a consequence of the applicant being an imputed drug user or person recovering from drug addiction. Non-refoulement obligations in respect of such fears may be owed under the International Covenant on Civil and Political Rights and its Second Optional Protocol (the “ICCPR”); the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (the “Refugees Convention”); and the Convention against Torture and Other Cruel, Inhumane Degrading Treatment or Punishment (the “CAT”). Australia has also incorporated obligations of that kind into Australian domestic law through the provisions of the Act.
4. The Tribunal’s identification of the sources of Australia’s non-refoulement obligations – in each of the ICCPR, the Refugees Convention and the CAT – is unsurprising, given that:
(a) First, Direction 79 unequivocally states at paragraph 14.1(1) that “Australia has non-refoulement obligations” under each of those conventions; and
(b) Second, s 5 of the Act itself defines “non-refoulment obligations” by reference to “non-refoulement obligations that may arise because Australia is a party” to any of those conventions.
5. Having (correctly) identified the applicable obligations, the Tribunal could, and should, have evaluated the evidence of the Appellant’s fears of harm by reference to them.
6. In view of the above, it is respectfully submitted that the Tribunal’s imputed finding – that the Appellant is not a person to whom Australia owes non-refoulment obligations (whether by reference to the Refugee Convention or otherwise), in light of the catastrophic consequences which the Tribunal accepted as a matter of fact he faces on return to Vietnam (AAT: [116], [132]) – is the product of extreme illogicality, for the reasons set out in the Appellant’s earlier written submissions and as advanced at the hearing.
(footnotes omitted)
50 The Respondent’s written submissions were as follows:
1. At the hearing of this matter on 23 September 2021, a question arose as to whether the Tribunal had erred by failing to consider whether Australia had “complementary” non- refoulement obligations in relation to the applicant – i.e., under the International Covenant on Civil and Political Rights (ICCPR) or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) – by reason of the limited medical treatment that the applicant might be able to access for his conditions in Vietnam.
2, The answer to that question is “no”. The following points are made, in addition to those previously made in writing and developed in oral submissions.
3. It is important to bear on mind that the applicant was represented by both a solicitor specialising in immigration law and a barrister in the review before the Tribunal.
4. A statement of facts, issues and contentions (SOFIC) was filed on the applicant’s behalf, which addressed non-refoulement obligations (CB 260, 269-270). The applicant’s SOFIC stated that the applicant fears return to Vietnam for reasons including, relevantly: “[h]is status as a sufferer of hepatatis B and D and his access to treatment for this condition”; and “[h]is status as a returnee with limited family support of government support”. However, all that was said in writing on these matters was this (footnotes omitted):
[67] The Applicant is also a sufferer of the Hepatitis virus (B and D). The Applicant has provided documents from International Health and Medical Services (“IHMS”) confirming his diagnosis. The Applicant is currently taking anti-viral medications to combat the virus. The Applicant will be required to take anti-viral medication for the rest of his life.
[68] According to the World Health Organization, 7.8 million people in Vietnam live with Hepatitis B and nearly one million live with Hepatitis C, with only 10% of people living with hepatitis being diagnosed and only 30% receiving treatment.
[69] Access to effective medical treatment in Vietnam for hepatitis remains limited. A lack of access to health care and education on the condition are seen as contributing to the virus taking hold in Vietnam.
[70] The Applicant is therefore unlikely to have access to the anti-viral medication that he is currently taking for his condition. Such an outcome will lead to disastrous health outcomes for the Applicant and should be a clear cause of concern for the Tribunal.
[71] Australia owes the Applicant non-refoulement obligations, which clearly weights strongly in favour of revocation.
5. Accordingly, the claim in writing was expressed at a high level of abstraction. No substantial submissions were made explaining how the postulated “limited” access to medical treatment for hepatitis meant that Australia owed non-refoulement obligations in relation to him, including under what treaty and on what basis.
6. The Tribunal, in its reasons for decision, noted that “these claims were not substantively pressed in the hearing on the basis of any convention-based harm but rather were more substantively dealt with by counsel for the applicant in impediments to return” ([97]). That is the best evidence of what transpired at the hearing, in the absence of transcript, supplemented only by the admission by the applicant’s counsel at the hearing before this Court on 23 September 2021.
7. The appellant’s counsel in this hearing, being the same counsel who appeared for the applicant at the hearing before the Tribunal (CB 571), admitted that insofar as any non-refoulement representation was pressed at the oral hearing before the Tribunal it was not done so on the basis of complementary protection obligations (i.e., the ICCPR or the CAT).
8. In any event, notwithstanding the limited assertions in writing, and the apparent fact that no claim to invoke complementary protection obligations was pressed at the hearing before the Tribunal, the Tribunal:
8.1. identified three potential sources at international law of non-refoulement obligations, being the ICCPR, the Refugees Convention and the CAT ([78]);
8.2. stated that, insofar as the applicant’s written submissions “make reference to the applicant fearing harm on return to Vietnam as a consequence of limited family support or government support”, “[t]he Tribunal is not satisfied that these claims of harm rise to a level that would trigger Australia’s non-refoulement obligations” ([96])
8.3. stated that “[b]ased on the evidence before it the Tribunal is satisfied that there is no convention-based harm in the form of denial of access to health care that the applicant is likely to suffer on his return to Vietnam” ([97]); and
8.4. ultimately concluded that “the Tribunal is satisfied that the applicant is not owed international non-refoulement obligations” ([98]).
9. In the circumstances described above, there is no basis to conclude that the Tribunal jurisdictionally erred in not considering whether any such obligations were owed under the ICCPR or the CAT. Especially when the applicant was represented by a competent solicitor and counsel, it would not bespeak jurisdictional error by the Tribunal not to perceive a claim that was neither “articulated” nor self-evidently “congruent” with Australia’s obligations under those treaties. In any event, insofar as an unelaborated but high-level claim was made that Australia owed such obligations to the applicant, the Tribunal dealt
(footnotes omitted)
51 Not without some hesitation, I accept the Respondent’s submissions. If arguably, the Applicant’s incapacity to afford anti-viral drugs, attendant with the potential serious consequences that the Tribunal acknowledged, might potentially have required the Tribunal to consider a complimentary protection claim had it been advanced; such a claim was not advanced either in writing or orally before the Tribunal.
52 Moreover, in the specific facts before the Court a submission that the facts before the Tribunal should have been understood by it to be obviously congruent with Australia’s international obligations involves a strained reading of the conclusions of the Tribunal.
53 The findings the Tribunal made in respect of the case the Applicant advanced were as follows:
116. While there was limited independent medical evidence before the Tribunal in respect of the applicant’s precise condition, on the basis of the applicant’s evidence together with the IHMS records the Tribunal accepts that the applicant’s condition is chronic and that in the absence of anti-viral medication on an ongoing basis there is a risk the applicant will suffer a worsening of his present condition including cirrhosis, joint pain and potentially liver failure or cancer with the possibility of an earlier than expected death.
54 Had it been put by the Applicants counsel, or had the Tribunal’s findings been, that the Applicant would die on return to Vietnam if he was denied his anti-viral medication, then a failure on the Tribunal’s part to give consideration to a potential (even if unarticulated) claim that the Applicant was owed non-refoulement obligations, may have emerged sufficiently clearly to justify this Court concluding that it had failed to discharge its duty according to law; AFD21 v Minister for Home Affairs [2021] FCAFC 167.
55 However that unambiguous proposition was not put to the Tribunal by the Applicant. Nor was that the Tribunal’s conclusion.
56 The Tribunal’s findings, which it noted had been reached in the absence of independent medical evidence were significantly more nuanced. The Tribunal accepted that there was a risk the Applicant would suffer a worsening of his present chronic condition and that if that occurred it could involve the possibility of his suffering an earlier than expected death. The Tribunal’s reference to an “earlier than expected death” in that context, fairly understood, was not a finding that the Applicant would face that consequence imminently on his return but rather that it was possible he might have a shortened life expectancy.
57 Those were findings that the Applicant had requested the Tribunal to make. The Applicant advanced his case to the Tribunal without the suggestion that for the Tribunal to make those findings would give rise to an issue of complementary protection. There is no little retrospectivity in the Applicant now seeking to lift himself up by the bootstraps on the basis of (a strained reading of) the findings made by the Tribunal as he had himself contended for.
58 But such opportunism arguably should be seen past if on the face of the findings the Tribunal actually made it ought, objectively, been apparent to it that Australia’s obligations of complimentary protection were required to be taken into account. However I am not satisfied that that was the fact.
59 Non-refoulement obligations reflect serious obligations that Australia has entered into. Thus in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 291, Mason CJ and Deane J said the following:
… ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.
60 Non-refoulement obligations are not things in the abstract. They do not arise simply because a person will suffer hardship. They arise having regard to the precise terms of the obligations which are engaged by the ratification of a particular convention. I make that observation because even in the supplementary submissions that have been filed on the Applicant’s behalf there is no identification of the terms of any complementary protection obligation so entered into Australia, which the Tribunal should have, having regard to the findings it made, recognised.
61 That may be because, confined to the precise facts before the Court, none has proved capable of being identified.
62 Without diminishing what must be distressing for the Applicant in the Tribunal’s findings that he might suffer aggravations of his health conditions and that his life expectancy might possibly be lessened, prospects of that character are inherent in the removal of Australia of a very wide range of people having regard to this nation’s robust public health system in comparison with that of many other places in the world. In many other countries access to advanced medical services that have allowed Australians to benefit from an enviable long life expectancy are considerably less, less affordable or virtually absent.
63 The Applicant has not identified any international non-refoulement obligation Australia has accepted with respect to complimentary protection as would require the Court to conclude that those circumstances give rise to a non-refoulement claim as opposed to, or in addition to, it being addressed an impediment personal to an applicant facing removal as the Tribunal did. It is implausible that in such a circumstance the Court should find that the Tribunal erred by not itself identifying such a source.
64 In the actual circumstances applying in which the applicant was represented by competent counsel, the Respondent’s submission that it does not bespeak legal error for the Tribunal not to have perceived a non-refoulement claim that was neither articulated nor on its face self-evidently congruent with Australia’s international obligations is compelling.
65 I reject that the Tribunal’s decision is vitiated by legal unreasonableness. There was nothing legally unreasonable in the Tribunal not addressing a claim that neither had been articulated by the Applicant nor was obviously and self-evidently inherent in the facts it found to apply.
66 For the above reasons I reject Ground 2.
Ground 3
67 Ground 3 alleges that the Tribunal failed to consider an integer of the Applicant’s claim. In the Ground it is expressed in terms that the Tribunal did not take into account that the Applicant would be at risk of persecution if returned to Vietnam by reason of his being a former drug user with a “high risk of relapse”.
68 Mr Healer clarified in oral submissions that the Applicant’s case was that the Tribunal had not given attention to certain passages in the Human Rights Watch Report, which in effect stated that Vietnam arbitrarily detained people for compulsory drug treatment in sometimes harsh conditions if they were “deemed to be at higher risk of relapse”. Such persons included those referred who “have been addicted to drugs for five years or more” and those with “no occupation, an unstable occupation or no specific place of residence”. Given that that would be the Applicant’s situation the Tribunal, by overlooking that important integer which the Applicant asserted as was supported by the evidence before it, the Tribunal had failed to apply an active intellectual process to his claim.
69 Counsel for the Minister, Mr Wood, submits that the contention that the Tribunal had failed to consider his representations to that effect should be rejected. The Minister’s written outline puts the Respondent’s case this way:
22. The Tribunal clearly dealt with this representation at [79]-[94] (and in particular in relation to the Human Rights Watch report at [90]-[91]). The Tribunal was certainly not required to accept the applicant’s “interpretation” of the report, or be satisfied that (somehow) the applicant’s drug history in Australia would come to the attention of Vietnamese authorities, and would be detained in a “drug centre” on this basis. The applicant’s complaint really amounts to an invitation to the Court to quarrel with the merits of the Tribunal’s analysis, rather than whether the Tribunal failed to consider the representation.
70 I accept the Respondent’s submissions.
71 I am satisfied that the Tribunal dealt comprehensively with the Human Rights Watch Report but having done so concluded, contrary to the case the Applicant sought to make, that what was referred to in that Report did not, and would not, apply to him. The Tribunal set out its reasons for so concluding at paragraphs [90]–[91] of its decision: see above at [22].
72 The very passages in the Report which Mr Healer took the Court to in oral argument as not having been considered were quoted by the Tribunal at [90] of its reasons.
73 I am entirely unpersuaded that the Tribunal failed to consider that representation. To the contrary I am satisfied that the Applicant’s complaint, as Mr Wood puts it, involves inviting the Court to quarrel with the merits of the Tribunal’s analysis. I decline that invitation.
74 I dismiss Ground 3
Ground 4
75 Ground 4 involves the contention that the Tribunal failed to take into account a mandatory relevant consideration. The particulars of that Ground are as follows:
a) In considering the expectations of the Australian community, the Tribunal found that there “were a number of broader circumstances of the Applicant’s case” (at [76]).
b) It was therefore incumbent on the Tribunal, in considering whether it “may be appropriate” to revoke the cancellation (in accordance with Direction no. 79 issued by the Minister), to assess those circumstances particular to the Applicant, in order to reach an evaluation of the appropriateness of doing so.
c) In dismissing the Applicant’s circumstances as merely “mitigatory” (at [77]), the Tribunal omitted to undertake that assessment, and thereby failed to take into account a mandatory relevant consideration.
76 Mr Healer’s written outline puts the case the Applicant seeks to advance as follows;
21. Consideration of the expectations of the Australian community, as the Full Court recognised in FYBR v Minister for Home Affairs, comprises not only the deemed expectation that non-citizens will obey the law, but also an expectation that the Tribunal will carefully consider the facts and circumstances of the particular case to determine whether it is in fact appropriate to cancel a visa in accordance with that deemed expectation. In FYBR:
a) Charlesworth J held that “the second expectation” (as Her Honour described it) is expressly concerned with “the consequences that should befall a non-citizen who has fallen foul of the first expectation”; and
b) Stewart J held that the “community expects that it will be necessary in every case to assess the circumstances particular to the visa Applicant in question in order to reach an evaluative assessment of ‘appropriateness’”.
22. In purporting to consider the expectations of the Australian community, the Tribunal relevantly found that there “were a number of broader circumstances of the Applicant’s case” (AAT: [76]). It was therefore incumbent on the Tribunal, in considering whether it “may” be appropriate to revoke the cancellation in accordance with the Direction – and consistent with FYBR – to assess those circumstances particular to the Applicant, in order to reach an evaluation of the appropriateness of doing so. However, in dismissing the Appellant’s circumstances as merely “mitigating” and “broader” (at [77]), the Tribunal failed undertake the necessary assessment of the second expectation.
23. By failing to consider the expectations of the community in the manner required by the Direction, the Tribunal failed to take into account a mandatory consideration and thereby committed jurisdictional error.
(footnotes omitted)
77 Mr Wood’s submissions in response were as follows:
26. In this case, the applicant conceded before the Tribunal that his criminal history included “serious” offending ([34], [39]). The Tribunal, indeed, was satisfied that the applicant’s criminal history involved “very serious” offending ([40]).
27. The Tribunal had “due regard” to the Government’s views set out in the Direction, informed by both clause 13.3(1) and the “principles” in clause 6.3 ([75]). Accordingly, the Tribunal considered that this consideration (expectations of the Australian community) weighed against the revocation of the cancellation decision ([76]). That analysis coheres entirely with the approach of the majority of the Full Court in FYBR (2019) 272 FCR 454, especially at [61]-[75] (Charlesworth J) and [87]-[93], [100]-[101] (Stewart J).
28. As explained by Charlesworth J, that there is (effectively) a “deemed” expectation of the Australian community that a cancellation decision should not be revoked does not bind the Tribunal in the ultimate exercise of power. That is because the Tribunal has a discretion as to what weight it accords to that “deemed” expectation. Thus, as her Honour explained at [76]:
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion …
29. And that is exactly what the Tribunal did in this case. Thus, it stated that “in considering the weighting to be given to this consideration the Tribunal has been mindful of a number of broader circumstances of the applicant’s case”, which it then set out ([76]). However, the Tribunal stated that “[n]otwithstanding these mitigating circumstances, given the clear and sustained manner in which the applicant has breached the trust and expectations of the Australian community through his serious criminal offending the Tribunal is satisfied that this consideration weighs heavily against the revocation of the mandatory cancellation of the applicant’s visa” ([77], see also [140]). Then, in the ultimate weighing exercise, the Tribunal stated that, notwithstanding some countervailing considerations, it was the protection of the Australian community (rather than the expectations of the Australian community per se) that was “the determinative consideration in the circumstances of this case”.
78 I reject the Applicant’s submissions. The Tribunal did not refer in the abstract to there being a number of broader circumstances in the Applicant’s favour. When addressing the third of the primary considerations, Direction No 79 required it to give attention to the elements that made up those circumstances and the Tribunal particularised them as follows:
(a) The very substantial period of time the applicant has lived in Australia;
(b) The efforts he has made to rehabilitate during his current period in custody;
(c) The difficult circumstances of his early life that the Tribunal accepts have contributed to his drug addiction;
(d) The applicant’s ongoing health issues including his hepatitis B and D condition and the ongoing physical difficulties he continues to experience as a consequence of carpal tunnel syndrome post-surgery complications;
(e) The significant impediments the applicant is likely to face if required to return to Vietnam; and
(f) The impact the applicant’s removal from Australia would have for the applicant’s family and in particular his two adult children.
79 It may have been a poor choice of words for the Tribunal to have described those factors as “mitigatory” with respect to his long history of criminal offending but the reasons of a Tribunal are not to be read with an eye to error. It is clear, in my view, on a fair reading, that the Tribunal’s reasoning at [77] (found above at [16]) involved the Tribunal doing no more and no less than weighing those positive factors against the impact of the Applicant’s unfortunately long criminal history in its discharge of the task Charlesworth J explained was its duty in FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 at [76]. Another decision maker may or may not have given greater weight to those factors when balanced against the Applicant’s offending when coming to a view as to the expectations of the Australian community, but the merits were for the Tribunal, not this Court. That the conclusion reached by the Tribunal was not that which the Applicant would have wished, does not require a finding that the Tribunal had failed to take into account a mandatory relevant consideration. I reject it did so.
80 I dismiss Ground 4. The outcome does not preclude a submission being advanced to the Minister on non-compellable compassionate grounds if there is independent medical evidence that the Applicant’s medical status has deteriorated since the time of the Tribunal’s decision.
Conclusion
81 The Applicant’s application is dismissed.
82 I apprehend there to be no reason why costs should not follow the event. I will order that the Applicant pay the Respondent’s costs as agreed, or in default of agreement, as may be taxed.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr. |
Associate:
