Federal Court of Australia

Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 643

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant applies for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent (the Minister) to not revoke the cancellation of the applicant’s visa.

Background

2    The applicant is a citizen of New Zealand, and is presently 59 years of age. He has resided mainly in Australia since 1984, and has not returned to New Zealand since 2014.

3    On 18 May 2021, the Minister’s delegate cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he had been sentenced to terms of imprisonment exceeding 12 months and was serving a full time sentence of imprisonment (the cancellation decision).

4    On 20 September 2021, the applicant made representations to the Minister seeking revocation of the cancellation decision. On 29 October 2021, the delegate made a decision pursuant to s 501CA(4) of the Act not to revoke the cancellation decision (the non-revocation decision).

5    On 4 November 2021, the applicant applied to the Tribunal for review of the non-revocation decision. On 21 January 2022, the Tribunal affirmed the delegate’s decision.

6    The Tribunal’s reasons for decision proceeded by first considering whether the applicant passed the character test. It was not disputed before the Tribunal, or in this proceeding, that the applicant failed the character test, and the Tribunal found accordingly.

7    The Tribunal then considered whether there was “another reason” to revoke the cancellation decision, working methodically and in detail through the considerations specified in Ministerial Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), which was issued pursuant to s 499(2A) of the Act.

8    In respect of the primary consideration of the protection of the Australian community, the Tribunal observed that the applicant had been sentenced on 23 occasions for some 38 offences, principally involving driving under the influence of alcohol. The Tribunal considered the applicant’s evidence that he had mental health issues and had engaged in counselling and drug and alcohol rehabilitation courses. The Tribunal found that the applicant’s criminal conduct was of a serious nature, in that if he were to reoffend it could result in potentially catastrophic harm to members of the community. It found that he had a risk of recidivism in the medium to medium-high range. On that basis, the Tribunal concluded that the protection of the Australian community weighed heavily against revocation of the cancellation decision.

9    The Tribunal found that the primary consideration of the best interests of minor children weighed slightly in favour of revocation of the cancellation decision. The applicant had relied upon his relationship with his brother’s grandchildren, whom he saw occasionally.

10    The Tribunal found that the primary consideration of the expectations of the Australian community weighed heavily against revocation. In so concluding, the Tribunal had regard to matters including the length of time the applicant had resided in Australia, his work history and his involvement in the Australian community.

11    In respect of “other considerations”, the Tribunal took into account the absence of any family and friends of the applicant in New Zealand. It considered the applicant’s medical conditions, including deep vein thrombosis (DVT), knee and back problems and depression and anxiety, but also considered the availability of adequate medical treatment in New Zealand. It considered the applicant’s links to the Australian community, including his familial and social links. The Tribunal accorded slight weight to these matters.

12    The Tribunal concluded that a holistic view of the considerations described in Direction 90 favoured a decision not to revoke the cancellation decision. Accordingly, the Tribunal affirmed the delegate’s decision of 29 October 2021.

13    The applicant was unrepresented before the Tribunal, and he remained unrepresented in this proceeding.

The application

14    The applicant’s Originating Application asserts:

Details of relief sought

1.    A writ of certiorari be issued directed to the Second Respondent quashing its decision of 21 January 2022.

2.    A writ of mandamus be issued directed to the Second Respondent requiring it to determine the Applicant's application for review according to law.

Grounds of application

1.    The Tribunal fell into jurisdictional error by as its finding that there was not another reason for revocation was legally unreasonable.

2.    The Tribunal fell into jurisdictional error by failing to engage in genuine consideration of significant and clearly expressed matters raised by the Applicant in support of his request for revocation.

(Errors in original.)

15    The applicant relied upon the following written submissions:

1.    AAT didn’t take into consideration my mental and physical health at the time of my Hearing I referred to my Psychological Report dated 2016.

2.    During my AAT hearing I was overly medicated as I was being treated for DEEP VEIN THROMBOSIS which carried side effects fatigue, nausea and head acres. This effected my representation.

3.    Consideration to my resident since 1982 in Australia, having raised a family owned 2 properties and successfully ran my own business. Payed all my taxes and all Government Bills.

4.    I have always had full involvement in community based projects involving sports and youth in a volunteer basis, donating my time and money.

5.    I’ve always regarded Australia as my permanent home and this is where all my family reside. I have No family in New Zealand and it’s a foreign Country to me. In my current medical condition I won’t survive if sent back to New Zealand.

6.    My sons interest was not taken into consideration though he is over 18 I’m still is guardian and role model. He has been depressed as he doesn’t know what will happen to me if deported.

7.    I was never given any warning or a second chance to make amends and better myself.

(Errors in original.)

16    In his oral submissions, the applicant focused principally upon the nature and extent of his medical and psychiatric conditions and the lack of adequate treatment for those conditions while he has been in immigration detention. He said that he had received an injury to his leg, for which he had not received medical attention. While he was being transported to Christmas Island, he suffered a DVT, which took three weeks to be diagnosed. He claims that, even then, it was not treated properly. The medication he was treated with caused him to experience nausea, fatigue, depression and anxiety. He said that all this had taken a mental and physical toll upon him.

17    The applicant claimed that his physical and mental conditions and the effect of the medication, “had a big effect on [his] representation”, before the Tribunal. He said that he had broken down during the hearing and was unable to properly represent himself.

18    The applicant submitted that the Tribunal “did not take into full account” his medical and psychiatric conditions and the medical reports and records he had placed before the Tribunal, including a 2015 psychological report. The applicant contended that the Tribunal’s decision was unsupportable in view of matters including: the length of time that he had not consumed alcohol or drugs; that he had carried out community service orders; and that he has close friends who are willing to support him in Australia.

Consideration

19    Turning to the applicant’s first ground of legal unreasonableness, in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, the Full Court identified at [45] the relevant question as, “whether a decision-maker could reasonably come to the conclusion reached”. The Full Court held that, “if the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable”.

20    The applicant argued that even though the Tribunal may have taken into account the factors that he had relied upon as favouring cancellation of the revocation decision, the Tribunal, “did not take them into full account”. That seems to be an argument that the Tribunal’s decision was legally unreasonable because it failed to give adequate weight to the matters in favour of revocation of the cancellation decision. It is true that reasonable minds might have differed as to the relative weight to be given to the factors favouring and opposing revocation. However, it was not unreasonable for the Tribunal to give greater weight to factors opposing revocation, such as protection of the Australian community and expectations of the Australian community.

21    The Tribunal provided an evident and intelligible justification for the conclusion it reached. Having examined the material before it, the Tribunal concluded that the risk to the Australian community and the expectations of the Australian community outweighed countervailing factors such as the best interests of minor children and hardship to the applicant and his family. That conclusion was reasonably and rationally available on the material before the Tribunal. The first ground must be rejected.

22    As to the applicant’s second ground, it is apparent that the Tribunal considered the applicant’s evidence and the submissions he made orally and in writing. In numerous passages of its reasons, the Tribunal expressly referred to the applicant’s oral evidence and to the factors he relied upon as providing a reason for revocation of the cancellation decision. The applicant has not identified any matters or submissions that the Tribunal failed to consider. There is nothing to suggest that the Tribunal failed to give proper, genuine and realistic consideration to any significant and clearly expressed matters raised by the applicant. The second ground must also be rejected.

23    The applicant’s written submissions assert that the Tribunal did not take into consideration his mental and physical health at the time of the hearing. The applicant also asserts that the Tribunal did not take into account a psychological report prepared in 2015 he had provided to the Tribunal.

24    The Tribunal expressly referred to and took into account the medical conditions identified by the applicant, including his psychological or psychiatric condition involving anxiety and depression, DVT and knee and back injuries. The Tribunal also expressly referred to the applicant’s claim that he had ongoing pain and reduced ability. It took into account that the applicant had been administered with medications that made him feel nauseous and affected his motivation and gave him decreased energy levels. The applicant’s submission that the Tribunal did not take into account his mental and physical health at the time of the hearing cannot be accepted.

25    The Tribunal did not expressly refer to the 2015 psychological report. However, the Tribunal discussed the applicant’s psychological state. There was no information of such significance in that report that the report could naturally be expected to be the subject of express reference in the reasons if it had been considered. It cannot be inferred that the Tribunal overlooked the report. In any event, it cannot be concluded that the report could realistically have made a difference to the outcome.

26    The applicant appears to allege that he was denied procedural fairness in that he was deprived of a meaningful opportunity to present his case. He asserts that the medication he was taking for DVT carried side-effects of fatigue, nausea and headaches, which affected his ability to represent himself. He states that he “broke down” during the hearing, which demonstrated that he was unable to properly present his case.

27    In BJB16 v Minister for Immigration and Border Protection (2018) 260 FCR 116; FCAFC 49; the Full Court observed at [43]:

Applicants who assert that their psychological condition deprived them of the “meaningful opportunity” required by s 425 of the Migration Act must establish more than the fact of the condition. They must also establish that their condition is such as to deny them the capacity to give an account of their experiences, to present argument in support of their claims, and to understand and respond to the questions put to them… Further, even when psychological evidence may, had it been available to the Tribunal, have led it to take a different view of the credibility of an applicant’s account, the absence of that evidence does not, of itself, establish that the hearing before the Tribunal proceeded on a false assumption about the applicant’s ability to give evidence and to present arguments relating to the issues arising in relation to the decision under review… Generally, it is insufficient for applicants to show no more than that a medical condition may have deprived them of the ability to put their case to best advantage.

(Citations omitted.)

28    Although BJB16 was concerned with s 424 of the Act, it was applied in Karan v Minister for Home Affairs [2019] FCAFC 139 at [12] and [15] to review of a s 501CA(4) decision by the Tribunal.

29    The Tribunal was aware that the applicant had experienced side-effects caused by his medication. It referred to the applicant’s written statement which stated that, “The medications I am administered on Christmas Island makes me feel nauseous and affects my motivation and I have decreased energy levels”. The Tribunal was also aware that the applicant was emotionally disturbed at one point during his evidence. The Tribunal set out a passage of evidence during which the applicant was evidently disturbed when talking about a friend who had committed suicide. The Minister’s representative asked the applicant whether he was all right to continue. The applicant replied, “I—give us a minute.” He then said, “Yes, right”, and the applicant’s evidence continued.

30    The applicant accepted that he had not made any complaint to the Tribunal prior to the decision being made that he was unable to adequately represent himself because of any medical or psychological condition. Nor is there anything in the material to suggest that the Tribunal ought to have been aware of any realistic possibility that he was unable to represent himself. The medical records before the Tribunal, including those prepared on 27 September 2021 and in November 2021, did not suggest that there was any significant mental or physical impairment caused by the applicant’s medication.

31    The applicant has failed to demonstrate that he was deprived by the effects of any psychological or physical condition of the ability to adequately or meaningfully represent himself before the Tribunal.

32    To the extent that the applicant asserts that the length of time he has resided in Australia, the contributions he has made through his work and involvement in community activities were not considered, that submission cannot be accepted. They were expressly taken into account by the Tribunal. Contrary to the applicant’s submission, the Tribunal also took into account that the applicant’s family resided in Australia and that he had no family in New Zealand. It took into account the applicant’s assertion that in his current medical condition, he would not survive if he were sent back to New Zealand. Further, it took into account the effect of the applicant’s removal upon his son, noting that the applicant appeared to be estranged from his son, but that the applicant claimed that there was some dialogue between them, with a view to repairing their relationship.

33    There was no requirement for the Tribunal to take into account the absence of a warning that the applicant’s visa may be cancelled if he reoffended. That was not a mandatory relevant consideration under s 501CA(4) of the Act, nor was it the subject of any submission to the Tribunal.

34    The Tribunal did take into account that the applicant had been the subject of supervision orders, home detention orders and intensive correction orders, but considered that these had not ended his substance abuse problems and offending.

35    The applicant contended that the Tribunal had not taken into account the fact that he had not consumed alcohol and drugs for two years. However, the Tribunal expressly took into account that the prison and detention environment had been effective in severing his alcohol and drug dependence, although the Tribunal went on to say that it had little confidence that the position would remain if he were returned to the Australian community.

36    In my opinion, the applicant has not demonstrated any jurisdictional error on the part of the Tribunal.

37    The application must be dismissed with costs.

Associate:    

Dated:    3 June 2022