Federal Court of Australia

Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 388

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

BEACH J:

1    This is an application for judicial review of a decision of the Tribunal that had affirmed a decision of a delegate of the Minister not to exercise power under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the cancellation of the applicant’s resident return (subclass 155) visa.

2    In his application, the applicant has advanced two grounds of challenge: (a) first, that the Tribunal failed to give proper consideration to the best interests of the applicant’s minor children resident in Australia and more specifically the consideration in clause 8.3(4)(d) of Direction 90; and (b) second, that the Tribunal had failed to properly assess the applicant’s representations contemplated under s 501CA(3) about the impediments he may face if returned to Iraq. Both asserted errors were said to be material to the question as to whether there was “another reason” for revoking the cancellation of his visa under s 501CA(4)(b)(ii).

3    For the following reasons I would reject each ground of challenge.

Some background

4    The applicant is a 49-year-old citizen of Iraq who arrived in Australia in 1994.

5    The applicant’s visa was cancelled by a delegate of the Minister on 27 April 2016 due to an offence committed in June 2014, but this cancellation was revoked on 18 November 2016.

6    In August 2018 the applicant was convicted and sentenced in the District Court of Western Australia in Perth in relation to 20 counts of gaining a benefit by fraud contrary to the Criminal Code 1913 (WA). The sentence of imprisonment imposed was five years.

7    On 18 February 2019 the applicant’s visa was cancelled pursuant to s 501(3A) of the Act on the basis that he had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of Western Australia.

8    On 12 March 2019 the applicant made a request for revocation of the cancellation decision.

9    On 2 March 2021 a delegate of the Minister decided under s 501CA(4) not to revoke the cancellation decision. The Tribunal affirmed that refusal on 26 May 2021.

10    The applicant is in a de facto relationship with an Australian citizen who identifies as indigenous (Ms H). This relationship is around 16 years’ duration. With Ms H, the applicant has two children, namely, J aged nine and AH aged six who also identify as indigenous. The applicant has two other children aged 14 and 16 from a previous relationship who live with their mother in Malaysia; those children are also Australian citizens. For the purposes of the issues before me, it is only necessary to consider J and AH who are the relevant children for my later discussion.

11    Ms H made a submission to the Tribunal that if the applicant was deported to Iraq she could “not see me and my kids moving to Iraq, and definitely not while they are still children.”

12    The Tribunal dealt with the issue of the best interests of the minor children in Australia by noting the particular considerations that applied to the children living in Australia, namely, that they are indigenous living in regional Australia and that the children and their mother, if they were to move to Iraq, would be removed from their country and their culture.

13    The Tribunal accepted that it was in the best interests of the applicant’s children in Australia that the applicant remain in Australia. Indeed, the Tribunal noted that this factor weighed “heavily in favour of the revocation of the cancellation decision” (at [173]). This was a strong finding in favour of the applicant.

14    Now the applicant’s solicitors in written submissions on his behalf made the Tribunal aware of research indicating that children of an incarcerated or detained parent are three times more likely to suffer from depression or behavioural issues, and twice as likely to suffer from learning difficulties and anxiety than children who do not have an incarcerated parent; see the applicant’s statement of facts, issues and contentions before the Tribunal (SOFIC) at [105] and footnote 57.

15    Now there was also material before the Tribunal that the applicant’s physical health is poor. He suffers from high blood pressure, anxiety, asthma and takes a number of prescription medications each day. The applicant’s solicitors informed the Tribunal in the SOFIC that the applicant had serious concerns he would not be able to access adequate healthcare and medication in Iraq, and cited a DFAT country information report about the issue.

16    Now whilst the Tribunal cited the DFAT report in its reasons, it relied on the fact that there was no expert medical evidence before it regarding the applicant’s ongoing health needs. But it did acknowledge that the applicant’s health, which was described by the sentencing judge in the District Court of Western Australia in 2018 as “poor”, appeared to be unchanged.

17    At [221] of its reasons, the Tribunal said:

However, there is no evidence before the Tribunal to suggest that the Applicant suffers from the mental health problems claimed or that any of his physical health problems present particular challenges from the perspective of health management. The Tribunal accepts that the standard of the Iraqi health system may not be the same as that available in Australia. However, there is no evidence that the Applicant would be denied access to the Iraqi health system or would otherwise not have access to services that are available to other Iraqi citizens.

Grounds of review

18    As I have stated, there are two grounds of review raised by the applicant.

19    The first ground of review is that the Tribunal fell into jurisdictional error because it failed to give proper consideration to what was in the best interests of the applicant’s children who reside in Australia and particularly the consideration set out at clause 8.3(4)(d) of Direction 90.

20    The second ground of review is that the Tribunal failed to carry out its statutory task of review with respect to assessing the applicant’s representations contemplated under s 501CA(3) as to impediments he may face upon his return to Iraq.

21    Both of these grounds ultimately went to the question of whether there was “another reason” for revoking cancellation under s 501CA(4).

22    Before turning to these two grounds, let me say something concerning some matters of principle.

23    First, the reasons of the Tribunal are not to be overzealously scrutinised with an eye keenly attuned to perception of error.

24    Second, the decision-maker is not required to mention each item of evidence before him in reaching his conclusion.

25    Third, on the issue of jurisdictional error based on a failure to consider matters raised by an applicant, I should refer to the observations in Minister for Home Affairs v Omar (2019) 272 FCR 589 at [34] to [41] by a 5 member panel and also to GBV18 v Minister for Home Affairs (2020) 274 FCR 202 at [30] to [32]. Those cases set out the relevant principles which guide the issue as to whether jurisdictional error has been made out by failing to consider the matters raised by an applicant in representations contemplated under s 501CA(3). I have applied these principles.

26    Further, in Navoto v Minister for Home Affairs [2019] FCAFC 135, Middleton, Moshinsky and Anderson JJ said (at [89]):

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

27    In Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, a comparable issue was dealt with. It was said by Burley, Colvin and Jackson JJ (at [48]):

… if executive power is to be exercised with a conscious understanding that it will result in the long term separation of a child from a loving and supporting parent with likely long term harm to the children then, given the nature of the obligation to give reasons in the present case, it is to be expected that the seriousness of that consequence and its consideration would both be manifested expressly in the reasons of the Minister.

28    Fourth, a failure to consider the effect of non-revocation on a close family member could affect the weight the Tribunal attached to the other consideration of the nature and duration of an applicant’s ties to the Australian community and therefore the balancing exercise the Tribunal is required to undertake.

29    Fifth, I also accept that in relation to the issue of carrying out its statutory task, this can extend to matters not put in submissions but which are substantial issues that clearly emerge based on the material before the Tribunal.

30    Sixth, the Tribunal is not under any duty to make inquiries or to make an applicant’s case for them. But where there has been a failure to make an obvious inquiry about a critical fact, the Tribunal may not have lawfully exercised its power of review (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]).

Ground one

31    The applicant says that the Tribunal fell into jurisdictional error in its failure to give proper consideration to what was in the best interests of the applicant’s children who reside in Australia and specifically the consideration set out at clause 8.3(4)(d) of Direction 90.

32    He says that the Tribunal was obliged pursuant to clause 8.3(4)(d) to consider “the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.”

33    Now the Tribunal accepted that the applicant, if he were to remain in Australia, would be involved in the childrens’ lives by parenting them with his partner.

34    The Tribunal also acknowledged that if the applicant returned to Iraq he would have electronic contact with his children but that it is “no substitute for personal contact, particularly given the young age of the children” (at [171]). But the applicant says that that statement, and the one immediately prior to it, that the applicant had been in contact with the children through electronic means while in prison in Western Australia and there is no reason “why that could not continue if he were to be removed to Iraq”, required further justification given that it was a substantial issue which clearly emerged on the material before the Tribunal.

35    The applicant says that the Tribunal did not deal with the submission of the applicant’s legal advisers about the adverse psychological and behavioural impact on children of an incarcerated parent, namely, one who is absent for a prolonged period.

36    Now whilst the Tribunal found that it is in the best interests of the children if the applicant remained in Australia, and gave this consideration heavy weight in favour of the revocation of the cancellation decision, the applicant says that it failed to actively engage with the question of how a permanent separation from the applicant would affect the children, other than in the most cursory fashion.

37    The applicant says that if the Tribunal had carried out its statutory task, that is, undertaken intellectual consideration of the issue of separation of the children from the applicant for many years, this may realistically have resulted in a different outcome given the importance of the issue.

38    I would reject the first ground.

39    As the Minister correctly submitted, this ground requires consideration, first, of the statutory scheme and the Tribunal’s duty to consider representations made in response to the invitation under s 501CA(3) and, second, of the way in which the applicant expressed his representations about the best interests of his two children who reside in Australia, and the way in which the Tribunal addressed the consideration pursuant to Direction 90.

40    Of course, in considering whether there is “another reason” for the cancellation of the visa to be revoked, the Tribunal was required to take into account the applicant’s representations advanced in support of revocation. But the need to make a specific finding in respect of an aspect of the representations depends on the nature and content of that aspect of the representations. Further, an aspect of the representations may be subsumed in a finding of greater generality.

41    Now the care that must be taken by the Court on judicial review of a decision of the Tribunal in discerning the matters that the Tribunal must expressly address in its reasons was discussed in EVK18 v Minister for Home Affairs (2020) 274 FCR 598 where Flick, Griffiths and Moshinsky JJ said (at [14]):

…The balance that is sought to be struck is to recognise that a “representation” which has been made pursuant to s 501CA(3) may contain a myriad of different claims and assertions and should not be dissected for the purpose of forensically and opportunistically subsequently seizing upon a failure to address a particular “statement” that may be found within a representation as exposing legal error (cf. BHA17 (2018) 260 FCR 523 at [139]), whilst at the same time recognising that a “representation” may not be drafted with the skill of an experienced legal practitioner.

42    Now clause 8.3(4)(d) of Direction 90 required consideration to be given to the “likely effect that any separation from the non-citizen would have on the children, taking into account the child’s or non-citizen’s ability to maintain contact in other ways”. But there must be a focus on the nature of the representations the applicant advanced on the subject of the likely effect of separation on his children. In one sense there is a correlation between the nature or quality of representations advanced, and the Tribunal’s duty to take those representations into account in exercising its discretion. And it is necessary to consider the cogency of the material and its place in the assessment of the applicant’s claims.

43    Now unlike Bettencourt, where detailed submissions were made including by reference to studies about the likely detrimental effects on the appellant’s children of long-term separation, in the present case the representations about the adverse effects of separation on the children were sparse, at best.

44    The applicant gave some short evidence in an earlier statement that “In the event my visa cancellation is not revoked this would create a devastating impact to all my children in different ways” and he referred to his daughter waking up screaming at night. Similar statements were expressed elsewhere. But this material was before the Tribunal and in my view was taken into account.

45    Further, I do not infer that the Tribunal failed to take an aspect of the applicant’s representations into account when that aspect was less developed than other parts of the representations, and the Tribunal otherwise dealt comprehensively, as it did, with the representations about the childrens’ best interests.

46    Now representations were also advanced about the effects on children of an incarcerated or detained parent (SOFIC at [105] and footnote 57). But this submission appears to have been made in the context of the recognition that the applicant’s “prior conduct has negatively impacted his children only by effecting [sic] their ongoing separation during his terms of imprisonment” (SOFIC at [104]). That is, these representations were about past and present harm to the children, rather than about the likely effects of permanent separation in the future. But in any event the Tribunal took into account future effects.

47    Now the Tribunal found that the applicant’s relationship with his two children in Australia was a parental one, and that he had a close relationship with his daughter. It accepted that the applicant would resume parenting the children, with the assistance of his partner (Ms H), if the visa was returned to him. The Tribunal accepted that the children would benefit from the stable form of parenting that the applicant could provide. Further, the Tribunal accepted that if the visa cancellation were not revoked, the applicant could maintain contact with the children through electronic means, but that this contact “is not a substitute for personal contact, particularly given the young ages of the children” (at [171]).

48    Further, and considerably in favour of the applicant, the Tribunal concluded, having said that it had taken all of the considerations identified in clause 8.3(4) of Direction 90 into account, not only that the best interests of the applicant’s children resident in Australia would be served by the applicant remaining in Australia, but it weighed that consideration heavily in favour of the revocation of the cancellation decision (at [173]).

49    Indeed, the Tribunal adopted the findings that the applicant had sought in relation to this consideration, save that the Tribunal found that the consideration was outweighed by other adverse considerations.

50    In my view, the Tribunal’s determination both of the fact that the childrens’ best interests favoured revocation, and that the consideration weighed heavily in favour of revocation, leads to an inference that the Tribunal did not overlook or fail to consider the representations about the impact his removal from Australia would have on the children. I infer that the Tribunal did take these matters into account in its assessment of the best interests of the children.

51    Having read the Tribunal’s reasons at [151] to [173] and [262], I am not in doubt that the Tribunal fairly considered the applicant’s representations concerning clause 8.3(4)(d).

52    In any event, even if there was some force in the applicant’s criticisms, any error was not material. The applicant bears the onus of establishing that any asserted jurisdictional error was material to the outcome of the case. On the Tribunal’s findings, there is no realistic possibility that the Tribunal’s decision could have been different had the Tribunal given more attention to the applicant’s brief submission, not supported by any other evidence (say from a specialist), about the effect that his long-term separation would have on his children. After all, the Tribunal had found in any event (at [262]):

The Tribunal has found that the best interests of the Applicant’s minor children in Australia weigh heavily in favour of revocation.

53    Further consideration of the assertion of the applicant could not realistically have resulted in a stronger finding or a difference in the ultimate outcome. The first ground fails.

Ground two

54    The applicant’s submission was that he suffers from diabetes, high blood pressure, anxiety and asthma and takes nine different prescription medications per day. He expressed serious concerns that if he were returned to Iraq he would not be able to access adequate health care and medication, made more acute because of the Covid-19 pandemic.

55    Now the applicant’s submission cited a DFAT report which indicated that the health services in Iraq have become increasingly impaired because of the number of doctors and health professionals who have left Iraq over the past 15 years. The report also referred to the fact that Iraq’s health system had struggled to meet basic needs.

56    The applicant says that the Tribunal dealt with this matter in an unsatisfactory way.

57    Now whilst the Tribunal cited the DFAT report, it relied on the fact that there was no expert medical evidence before it regarding the applicant’s ongoing health needs, although it did acknowledge that the applicant’s health, which was described by the sentencing judge in the District Court of Western Australia in 2018 as “poor”, appeared to be unchanged.

58    Furthermore, the Tribunal found that the applicant had food allergies which “may be inferred to be serious” (at [221]).

59    But the Tribunal said (at [221]):

However, there is no evidence before the Tribunal to suggest that the Applicant suffers from the mental health problems claimed or that any of his physical health problems present particular challenges from the perspective of health management. The Tribunal accepts that the standard of the Iraqi health system may not be the same as that available in Australia. However, there is no evidence that the Applicant would be denied access to the Iraqi health system or would otherwise not have access to services that are available to other Iraqi citizens.

60    The applicant says that to characterise the evidence before the Tribunal, namely, the DFAT report, as indicating that the Iraqi health system in fact was functional and that he would have access to the services is to misread what the report said. I should note for completeness that the applicant in his SOFIC quoted from the report, but did not put the report before the Tribunal. Nevertheless, the Tribunal seems to have later accessed the report.

61    The applicant says that the report clearly stated that health services have deteriorated, the sector faces continuous shortages in drugs and other supplies, and access to health services is becoming increasingly impaired and that this was being made more acute because of the Covid-19 pandemic.

62    Now clause 9.2(1)(c) of Direction 90 required the Tribunal to consider the extent of any impediments that the applicant may face if removed from Australia, “in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of [their home] country), taking into account … any social, medical and/or economic support available to them in that country.”

63    The applicant says that to simply use formulaic terms such as those used in the reasons at [221] is to fail to deal with the specific claim that was made and to fail to deal with the articulated claim about whether or not the applicant would even be able to access the medications he required in Iraq.

64    The applicant says that the Tribunal’s reasoning was affected by jurisdictional error because there was a failure to consider a clearly articulated argument and a failure to give the applicant’s representation active intellectual consideration.

65    Alternatively, the applicant says that the Tribunal failed to make an obvious inquiry about critical facts that were readily ascertained, namely, whether the Iraqi health system was sufficiently functional so that the applicant would be able to receive the daily medications to deal with his asthma, high blood pressure, diabetes and food allergies.

66    Having perused the Tribunal’s reasons at [213] to [225], I would also reject the second ground.

67    The Tribunal referred accurately to the applicant’s representations about his health, including his concern that he would be unable to access adequate health care in Iraq in the context of the COVID-19 pandemic. The Tribunal referred to and extracted a portion from the DFAT report concerning Iraq’s health system capacities. Further, the Tribunal noted that there was no expert medical evidence before it regarding the applicant’s ongoing health needs, but accepted that he had asthma, high blood pressure and diabetes, managed by medication, and that he had food allergies.

68    Further, the Tribunal said that there was no evidence that the applicant suffered from the mental health problems he claimed or that his physical health problems presented particular challenges from the perspective of health management.

69    Further, by reference to clause 9.2(1) of Direction 90, the Tribunal found that notwithstanding that Iraq’s health care system might not be the same as that available in Australia, there was no evidence the applicant would be denied access to the health system in Iraq or would otherwise not have access to services that were available to other Iraqi citizens. But I do note that this is not a finding as to the positive availability of medication.

70    In my view, there was no error in the Tribunal’s approach. It can be inferred from the Tribunal having outlined the applicant’s representations about his claimed health impediments that the Tribunal was aware of the claim. It can further be inferred from the Tribunal’s findings that the Tribunal considered that notwithstanding the limitations of the Iraqi health system, the nature of the applicant’s health concerns, which required nothing more than medication, would likely be able to be managed.

71    Further, the information before the Tribunal about the deterioration of health services in Iraq, and the additional burden that the pandemic has inflicted on that health system, said nothing directly about the unavailability of medication for the kinds of health problems suffered by the applicant. Rather, it referred generally to shortages of drugs and other supplies. The Tribunal recognised this in acknowledging that the standard of the Iraqi health system might not be the same as that in Australia.

72    I am satisfied that the Tribunal intellectually engaged with and properly considered the applicant’s representations on this aspect.

73    Further, the applicant’s contention that the Tribunal was under a duty to inquire about the Iraqi health system should also be rejected.

74    The Tribunal’s exercise of power under s 501CA(4) is predicated upon the applicant having made representations to the Minister about the revocation of the cancellation of his visa under s 501(3A). It was not the Tribunal’s task to gather evidence to fill any gaps, but the applicant’s responsibility to make representations in accordance with the invitation issued pursuant to s 501CA(3)(b).

75    It was for the applicant to make out his claims. In considering the exercise of power under s 501CA(4) the Tribunal had no legal duty to make inquiries for itself. In short, the statutory scheme does not reflect or envisage a possible duty as described in SZIAI. And neither does the inquisitorial nature of the Tribunal proceedings give rise to a general duty to inquire.

76    Further, even if the possible duty described in SZIAI did apply, the factors described in that case cannot be established here; in the present case there was no obvious inquiry relating to a critical fact, the existence of which is easily ascertained, which, in the circumstances, supplied a sufficient link to the outcome to constitute a failure to review. The information from DFAT said nothing expressly about drug shortages having substantially worsened as a consequence of the pandemic. But even so, had the applicant wished to advance a more specific submission about that issue, he had the opportunity to do so. He had the benefit of legal representation who assisted him in submitting detailed materials and submissions to the Tribunal.

77    In summary, the Tribunal’s findings were open to it on the evidence and intellectually engaged with the representations the applicant advanced, and which the Tribunal expressly recognised.

78    This ground must also be rejected.

Conclusion

79    Neither ground of review has been made out. The application must be dismissed with costs.

Associate:

Dated:    12 April 2022