Federal Court of Australia
Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 680
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 application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[1] | |
[1] | |
[8] | |
[9] | |
[10] | |
3 GROUND 1: FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS | [29] |
[29] | |
[30] | |
[33] | |
[33] | |
[34] | |
3.4 Ground 1(b) – failure to consider non-refoulement obligations | [39] |
[39] | |
[45] | |
[59] | |
[59] | |
[61] | |
[65] |
BURLEY J:
1 The applicant, Sanjay Kwatra, is a 57-year-old Indian national who first arrived in Australia in 1996 at the age of 32. He resided in Australia on a Class BB Subclass 155 Five Year Resident (Permanent) visa. He has an extensive criminal record. His offending commenced shortly after he arrived in Australia. Much of his offending was of a similar character. He was sentenced to imprisonment on several occasions, his two most recent sentences being imposed firstly in January 2019, when he was convicted of making vexatious calls to an emergency service, breaching bail conditions and contravening a community corrections order, and secondly in March 2019, when he was convicted of making false and vexatious calls to an emergency service and failing to comply with a sentencing order. For the second of these he was sentenced to 18 months in prison.
2 Mr Kwatra’s visa was cancelled on 6 June 2019 under s 501(3A) of the Migration Act 1958 (Cth) on the basis that a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was satisfied that he did not pass the character test under s 501(6)(a) of the Act.
3 Section 501CA of the Act relevantly provides:
Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
…
4 Mr Kwatra made representations in accordance with s 501CA(4)(a), but a delegate of the Minister was not satisfied that there was another reason why the original decision cancelling the visa should be revoked. Mr Kwatra then applied to the Administrative Appeals Tribunal for a review of that decision. On 3 August 2020 the Tribunal affirmed the decision of the delegate.
5 Mr Kwatra then applied for judicial review of the decision of 3 August 2020 and, on 4 February 2021, orders were made quashing that decision and remitting the matter for redetermination; Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 58 (Burley J).
6 A differently constituted Administrative Appeals Tribunal reconsidered Mr Kwatra’s application after conducting a hearing on 21 July 2021 at which Mr Kwatra represented himself, gave evidence and adduced evidence. On 2 September 2021 the Tribunal gave a further decision, affirming the decision not to revoke the cancellation of Mr Kwatra’s visa.
7 Mr Kwatra now seeks judicial review of the decision. He was represented at the hearing pro bono by Mr A Krohn of counsel. The Minister was represented by Mr CEA Hibbard of counsel. Both filed written submissions in advance of the hearing. After the delivery of Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, the parties were invited to make supplementary submissions going to the effect of that decision on the grounds advanced.
1.2 The application for review
8 In his Amended Application for Review, Mr Kwatra relies on two grounds which are as follows:
1. [The Tribunal] fell into jurisdictional error in that it failed to consider relevant considerations.
Particulars
(a) The Tribunal failed to consider with an actual intellectual engagement the material and submissions relating to the physical and mental health of the applicant and the extent of the impediments that his health would cause him on return to India when that was required by the Minister’s Direction.
(b) Further or in the alternative to particular (a) to this Ground, the Tribunal failed to consider with an actual intellectual engagement the material and submissions relating to the physical and mental health of the applicant and the question of how Australia’s non-refoulement obligations may be engaged as a result when that was required by the Minster’s Direction.
2. The Tribunal fell into jurisdictional error in that it was legally unreasonable.
Particulars
(a) The Tribunal reasonably and correctly found “that Extent of impediments if removed assumes the weight of a primary consideration.” (Decision [118]-[119])
(b) In all the circumstances of the case, including:
i. the Tribunal’s finding set out in Particular (a) of this Ground,
ii. the length of time the Applicant was a resident in Australia,
iii. his specific criminal history and the causes of it,
iv. the material relating to his mental and physical health,
v. the support he would have if he remained in Australia,
vi. his absence of support if he returned to India, and
vii. the situation of the Covid-19 virus in India and its likely effect on the Applicant,
it was unreasonable for the Tribunal to conclude that the cumulative result of all the factors relating to Extent of impediments if removed were not sufficient to be another reason to revoke the cancellation of his visa under s 501CA(4)(b)(ii) of the Migration Act 1958 [sic].
(c) Further or in the alternative to particular (b) to this Ground, in all the circumstances of the case, it was unreasonable for the Tribunal not to find that Australia’s non-refoulement obligations were engaged.
9 For the reasons set out in more detail below, the application must be dismissed.
2. THE DECISION OF THE TRIBUNAL
10 The decision of the Tribunal set out the background of the applicant, noting that he was then a 57-year-old citizen of India who was raised and educated there and held an undergraduate degree. He married in India in 1987 and worked in India for 10 years before his arrival in Australia in 1996 at the age of 32. He and his wife had two children, one in India and another when they arrived in Australia. The marriage ended in about 2001 and he has since then not had contact with his ex-wife and children.
11 The Tribunal summarised Mr Kwatra’s history of offending since 1998, which it described as including offences involving violence, breaches of conditional liberty, dishonesty, property damage, drunk-driving and public nuisance. It records that in 2004 his offending became even more serious, encompassing convictions for two counts of arson, reckless conduct endangering serious injury and threat to destroy/damage property, for which he received a total effective sentence of two years and six months’ imprisonment. The Tribunal described further of the offences committed by Mr Kwatra, including the most recent conviction on 28 March 2019 for making false and vexatious calls to emergency services, failing to comply with a previous sentence order, and breaches relating to earlier convictions, for which he was sentenced to an aggregate of 26 months’ imprisonment.
12 The Tribunal set out the relevant legislative framework giving it jurisdiction and referred to Direction No 90, being the Ministerial Direction issued by the Minister on 8 March 2021 pursuant to s 499(1) of the Act and which commenced on 15 April 2021. The Tribunal referred to cl 8 of the Direction, which identifies the primary considerations, and cl 9, which refers to other considerations that the Tribunal must take into account where relevant to a decision under review.
13 The Tribunal noted that it was not in dispute that Mr Kwatra does not pass the “character test” and so the relevant issue for determination was whether or not there was another reason for revoking cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
14 The Tribunal provided a review of the evidence given at the hearing. It summarised the evidence and submissions made by Mr Kwatra in relation to “impediments to removal” as follows:
34. The Applicant said he previously returned to India in 1998 and 2002, during which he stayed with his sister. She subsequently died in 2009. His concerns about repatriation to India centred on:
(a) Deterioration of his mental and physical health, with a particular focus on the risk of contracting COVID-19 or an attendant infection known as “black fungus”, for which he could not get treatment from an over-stretched Indian health system;
(b) Absence of family or social support;
(c) Inability to find work due to his age and comorbidities;
(d) Separation from close friends and support in Australia; and
(e) Lost opportunity to rebuild relationships with his family in Australia.
35. The Applicant referred to several chronic health issues affecting his daily life. These include Type II diabetes, which he controls with a daily tablet. He also raised back issues, high cholesterol, angina, macular degeneration, dental health problems, a peptic ulcer, general pain, “side effects from taking so many tablets”, depression, and PTSD. He undertakes three-monthly testing to confirm the appropriate medication dosage for his diabetes. When asked if this testing and medication was available in India, the Applicant responded: “I’m not sure but even if it’s available it will cost a fortune”. He explained: “There’s no system – I’ve lived there for 32 years – I know the system very well in India”.
36. The Applicant was challenged about his macular degeneration claim, given an ophthalmologist’s letter stated: “no treatment is required”. He confirmed a subsequent consultation with an ophthalmologist had also not recommended any treatment. When asked what expert evidence he relied upon that specifically diagnosed macular degeneration, the Applicant agreed there was none. In relation to his dental problems, the Applicant was asked about the reference in evidence to him declining dental treatment. He explained it because of uncertainty about who would provide him with dentures if the recommended treatment was carried out.
37. When asked what specific mental health conditions he was diagnosed with, the Applicant responded: “Generalised anxiety, depression and PTSD”. He takes a daily tablet for depression but does not receive any treatment for generalised anxiety or PTSD.
38. The Applicant stated he is “not in a medical or mental health state of mind” to “survive in India”, where he would be more susceptible to illness. He is particularly concerned about the lack of comparable medical support and absence of family support. When asked if he has any cousins in India, the Applicant responded: “No”. When referred to his previous evidence that he does have cousins in India, the Applicant responded: “I might have cousins but I’m not in contact with them”.
39. The Applicant submitted that India’s health system was “totally shattered” by COVID-19, referring to media articles in support of this claim. He said that because of the higher population density in India compared to Australia, he feared not being able to socially distance, which would increase his susceptibility. He explained that the health system in India was dominated by a private health system he could not afford and lacked a “safety net”, whereas in Australia support was readily available through Medicare, disability payments, and other sources.
40. The Applicant said he could not find work in India if returned and would become homeless. This resulted from being unable to travel to seek employment because of his increased COVID-19 risk. He said only those who worked qualified for a state insurance scheme providing income support. The Applicant disagreed his qualifications and past work history in India would assist him, claiming his experience was in a “clean environment in Australia”, whereas it was a “crowded” office environment in India.
41. The Applicant said if allowed to remain in Australia he was confident of eventually finding part-time or voluntary work and, in the interim, could rely on income and health support. He accepted there was a large break in his work history but referred to previous employment with several large telecommunications companies in Australia as underlying his confidence about finding work, including in a call-centre setting. He said this included “trouble-shooting” telecommunications problems for clients. He had recently undertaken further training in information technology.
(Emphasis removed.)
15 The Tribunal also considered the applicant’s submissions as to there being an elevated risk of contracting COVID-19 in immigration detention, his family interests, the nature of his offending, his remorse, rehabilitation and recidivism risk and his future aspirations should he remain in Australia.
16 The Tribunal then turned to consider the primary and other considerations that it considered to be relevant to Mr Kwatra’s application.
17 In relation to the primary consideration of protection of the Australian community from criminal or other serious conduct, the Tribunal reviewed the submissions advanced by Mr Kwatra and the offences that he had committed. It concluded that his conduct is “very serious”. It also considered the risk to the Australian community should Mr Kwatra commit further offences or engage in other serious conduct and took into account a range of factors about which he had made submissions. It concluded that Mr Kwatra has inflicted “substantial harm” on the community over two decades and similar reoffending could inflict further harm. It found that, while the potential harm arising from and likelihood of a repeat of Mr Kwatra’s offending varies with respect to the different categories of offences, his overall risk of reoffending is “significant and unacceptable” and that the nature and seriousness of his offending, coupled with his unacceptable risk of re-offending, results in this primary consideration “weighing very substantially against revocation”.
18 The Tribunal then turned to the primary consideration of whether the conduct engaged in constituted family violence and concluded that the potential for further family violence against his ex-wife appeared “very low but cannot be entirely discounted because of the Applicant’s high risk of relapsing into alcohol abuse and reoffending”. It noted that he had not committed further family violence during the past 15 years and, although there had been a previous history of such offending, the consideration “weighs only slightly against revocation”.
19 The Tribunal then considered the primary consideration of the best interests of minor children and accepted that this factor carried “slight weight in favour of revocation” on the basis that his adult daughter has a child with whom Mr Kwatra would like to connect.
20 In relation to the primary consideration of the expectations of the Australian community, the Tribunal found that as Mr Kwatra has lived in Australia for almost 25 years he would be afforded a higher level of tolerance for his criminal conduct, but that having regard to the nature and repetition of his criminal conduct this consideration weighed “very substantially against revocation”.
21 The Tribunal then turned to “other considerations” identified in cl 9 of the Direction.
22 It noted at [101] that Mr Kwatra did not advance non-refoulement claims during either the first hearing before a different Tribunal or in the current hearing. It said:
Tribunal Consideration: International non-refoulement obligations
101. The Applicant did not advance non-refoulement claims at the first hearing of this matter or during the present hearing. His claims instead focussed on impediments to re-establishing himself in India, including finding work, accessing healthcare, sourcing practical and emotional support, and avoiding COVID-19.
Tribunal findings: International non-refoulement obligations
102. Clause 9.1 of the Direction is not enlivened and carries neutral weight. The applicant’s claims about impediments to removal are considered next.
23 In relation to the “Extent of Impediments if removed” consideration under cl 9.2(1) of the Direction, the Tribunal noted that Mr Kwatra’s claims focussed on impediments to re-establishing himself in India. It noted that Mr Kwatra speaks fluent Hindi and English and made no claims about language or cultural impediments. It noted, however, that Mr Kwatra made extensive claims in relation to the social welfare system in India and other support available there, COVID-19, his ability to work in India and access to health services in India, having regard to his claims to suffer extensive health conditions. It summarised those claims in some detail.
24 The Tribunal found relevantly found in relation to these matters:
114. The Applicant spent the first 32 years of this life in India. He speaks English and Hindi and there are no discernible linguistic or cultural impediments. There are some positive indicators of him being able to re-establish himself in India, including:
(a) Completion of an undergraduate degree and a decade of work in India until the age of 32. Although the Applicant has not returned for approximately 20 years, he is an intelligent man with clear capacity in languages and work skills in the field of telecommunications and information technology;
(b) The Applicant has been sober for approximately two years and states he can return to some form of part time work commensurate with his medical restrictions; and
(c) The potential for some form of emotional or practical support from cousins in India.
115. There are also negative factors giving rise to concerns about the Applicant’s ability to re-establish himself in India, including:
(a) He has been largely reliant on Australian Government payments since ceasing work in 2008. If the Applicant does not achieve his aspiration to remain abstinent from alcohol and return to work, his prospects of providing for his daily needs will be substantially diminished. The Tribunal acknowledges the guidance in the Direction, however, about impediments being considered in the context of what is generally available to other Indian citizens. There is no evidence the Applicant would be treated differently to other Indian citizens, although it is accepted any Government-funded services and support would likely be much less than what he could receive in Australia;
(b) The Applicant is in his mid-50s with a substantial criminal record, persistent alcoholism, and multiple comorbidities. His confirmed medical and psychological conditions are not rare and there is no evidence treatment for them is not available in India. The Tribunals accepts, however, that the Indian health system has experienced severe challenges because of COVID-19, which may adversely impact the Applicant’s ability to source the treatments he requires;
(c) The Applicant has no recent experience in the Indian job market and is yet to approach his cousins to test the availability of practical or emotional support. There is no evidence he can draw on support from any friends in India; and
(d) The Applicant stated he has no meaningful savings, having previously withdrawn and spent his superannuation.
116. The Tribunal accepts the Applicant has experienced longstanding depression, anxiety and takes medications for several medical conditions. Some of his medical claims, however, appear overstated. For example:
(a) The Tribunal accepts the Applicant has experienced back problems in the past and the MRI he provided may reflect age-related “degenerative changes”, which is controlled by painkillers. There is no expert interpretation of the MRI report provided, however, to corroborate his claims about “severe osteoarthritis, cervical spondylosis and sciatica” causing “excruciating pain;”
(b) The Tribunal is unable to make a reliable finding the Applicant suffers macular Degeneration. A consultant’s report stated “no treatment is required” for his eye condition and the Applicant said a further ophthalmological consultation resulted in no treatment;
(c) There is no evidence to confirm the working diagnosis of PTSD referred to by Dr Saluja during brief interactions with the Applicant over two years ago, or that any treatment for PTSD was ordered.
117. The Tribunal accepts the COVID-19 Pandemic has adversely impacted the Indian economy, which would affect the Applicant’s ability to find suitable employment and meet his treatment needs. The rollout of vaccines to address COVID-19 is still at a relatively early stage and notwithstanding the recent improvements noted by Mr Rogers, the situation in India continues to be serious, posing a significant threat to human health. The Tribunal accepts that COVID-19 is highly infectious and may cause severe respiratory and other symptoms or death in some patients. With his comorbidities and in concentrated population settings throughout much of India, the Applicant is likely to be more susceptible to contracting COVID-19 or infections like Black Fungus, with adverse health consequences. Notwithstanding the absence of expert evidence to clarify the extent to which his diagnosed conditions may place him at higher risk of contracting COVID-19 if returned, the Tribunal accepts he was unvaccinated at the time of the hearing, is consequently more vulnerable to contracting COVID-19, and may be more severely impacted because of his comorbidities. The Applicant agreed during oral evidence that vaccination would alleviate his concerns, but it remains uncertain when this might be offered or if the Applicant would accept the vaccination offered.
118. The Applicant claimed he does not have a passport or travel document. This is not considered a significant impediment to repatriation, however, given there is no dispute he is an Indian citizen and no evidence a passport or travel document would not be granted.
119. In addition to risks from COVID-19, if the Applicant relapses into alcohol abuse, his health is likely to deteriorate. Even if he did remain abstinent, the Tribunal considers it likely he will be confronted by considerable impediments in re-establishing himself and maintaining basic living standards. On balance, this consideration weighs very substantially in favour of revocation. Given the specific circumstances of this case the Tribunal has decided to treat it as a primary consideration.
(Emphasis removed.)
25 The Tribunal then considered the impact on victims of Mr Kwatra’s behaviour and his links to the Australian community, determining that each was of neutral weight.
26 In relation to its consideration of Mr Kwatra’s ties to the Australian community (cl 9.4.1 of the Direction), the Tribunal reviewed the evidence advanced by Mr Kwatra and from friends who provided letters in support and concluded that this consideration weighed “moderately” in favour of revocation.
27 The Tribunal then considered the submissions advanced by Mr Kwatra concerning the danger that he may contract COVID-19 in detention and accepted that he may be more susceptible to COVID-19 because of his comorbidities, but did not accept that inadequate COVID-19 preventative measures in immigration detention accentuate his risk of contracting it. In that context the Tribunal found Mr Kwatra’s claims to be uncorroborated and unsupported by his medical records. It also accepted the evidence adduced by the Minister to the effect that no detainee in Australia’s immigration network to the date of Exhibit R3 had contracted COVD-19 and that protective measures had been taken. The Tribunal concluded that this consideration, along with the consideration that there was the potential that Mr Kwatra may spend longer in immigration detention because of COVID-19 issues, weighed “somewhat” in favour of revocation.
28 The Tribunal weighed all of the considerations to which it had referred in concluding as follows:
143. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining if there is “another reason” why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal considers it necessary to depart from the guidance that greater weight “should generally be given” to the primary considerations than other considerations, in finding that Extent of impediments if removed assumes the weight of a primary consideration.
144. The Applicant’s offending during more than two decades in Australia is undoubtedly very serious. He has inflicted substantial harm on the community and constitutes an unacceptable risk of recidivism.
145. The Applicant has had no contact with his ex-wife or children since his marriage broke down twenty years ago, or the grandchild whose interests he invokes. His claim about resuming a relationship with his family members is aspirational at best. His links to the Australian community are relatively limited, but what links he has are predominantly in Australia and centre on three supportive friends.
146. It is accepted that as a result of his comorbidities the Applicant may be more susceptible to COVID-19 and its adverse effects, irrespective of whether he is in Australia or India. It is also accepted there is at least the potential he may spend longer in detention because of COVID-19 impacts if his application is refused.
147. Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel the Applicant’s visa should be revoked. That is because three of the primary considerations in this matter weigh against revocation to different degrees. “Protection of the Australian community” and “Expectations of the Australian community” weigh very substantially against revocation, while Family violence committed by the non-citizen weighs slightly against revocation. These considerably outweigh the combined weight given to the primary consideration Best interests of children, Extent of impediments if removed, which has been treated as a primary consideration, and the other countervailing considerations.
(Emphasis removed.)
3. GROUND 1: FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS
29 In ground 1, Mr Kwatra contends that the Tribunal fell into error in that it failed to take into account relevant considerations. In particular (a), Mr Kwatra contends that the Tribunal failed to consider with an “actual intellectual engagement” the material and submissions relating to his physical and mental health or the extent of the impediments or harm his health would cause him to return to India. In particular (b), he contends in the alternative that the Tribunal failed to consider whether his mental and physical health engaged the separate but overlapping obligation that arises under cl 9.1(1) of the Direction to consider Australia’s non-refoulement obligations.
30 In Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589, the Full Court said at [36]:
… even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court’s approach in [Tickner v Chapman [1995] FCAFC 1726; 57 FCR 451] (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).
31 In Tickner, Kiefel J (as her Honour then was) referred at 495 to the need for a decision-maker who is required to “consider representations” that have been made to “bring [the] mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them”. In Navoto v Minister for Home Affairs [2019] FCAFC 135 the Full Court (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 v Minister for Immigration and Citizenship [2009] FCAFC 140] 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: [Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216] at [45] per Rares and Robertson JJ.
32 In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, the Full Court (Griffiths, White and Bromwich JJ) said at [48] that “a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made”. These remarks were endorsed in CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155; 272 FCR 131 at [76] per Allsop CJ, Kenny and Snaden JJ. One issue raised which had been before the Tribunal in CAR15 was whether the appellant would, as she claimed, be rendered homeless if she were to relocate to a particular locality within her country of nationality. The Full Court noted at [76] that the Tribunal, when considering that claim, was not required to record, in explicit terms, whether or not the appellant would be rendered homeless if returned there, but that the Tribunal was required to “undertake an ‘active intellectual process directed to that claim’”.
3.3.1 The applicant’s submissions
33 Mr Kwatra contends that, on a fair reading, the reasons for the findings on his health being an impediment if removed are very limited. He submits that the Tribunal did not consider his ability to pay for or get treatment, and did not grapple with an actual intellectual engagement with the disabling effect of extensive comorbidities, and what they meant for a destitute man, once destructively alcoholic, returning to India without family, support or work after almost 30 years. In oral submissions, Mr Kwatra amplified this point by reference to submissions that he had made to the Tribunal to the effect that would not survive in India if he were required to return there and that if required to do so it would be a death sentence.
34 Having regard to the extensive and careful reasons delivered by the Tribunal, I am not satisfied that this aspect of ground 1 is made out. As I have noted above, the Tribunal considered and weighed up both positive and negative factors relevant to Mr Kwatra’s return to India. It noted at [115] concerns about his ability to re-establish himself in India, which included his reliance on social security since 2008, the potential problem for his prospects of finding work if he did not remain abstinent from alcohol, his age, his criminal record, his lengthy period of time being out of the Indian job market, the uncertainty of whether he could be supported by his cousins and the absence of any evidence that he could draw on support from any friends in India, and the fact that he had no savings.
35 In relation to his health, the Tribunal conducted an extensive review of Mr Kwatra’s claims in relation to his conditions and accepted that he had experienced longstanding depression and anxiety and takes medications for several medical conditions. With the exception of what it considered to be some overstated evidence about his back problems, alleged macular degeneration and a claimed diagnosis for PTSD, the Tribunal otherwise accepted Mr Kwatra’s claims as to the severity of his conditions. In this regard the Tribunal accepted at [115] that the Indian health system “has experienced severe challenges because of COVID-19, which may adversely impact [his] ability to source the treatments he requires”. The Tribunal also accepted that the COVID-19 pandemic had adversely affected the Indian economy and that it may cause severe respiratory and other symptoms or death in some patients and, at [117], that with his comorbidities Mr Kwatra is likely to be more susceptible to contracting COVID-19 or infections like Black Fungus, with adverse health consequences.
36 Furthermore, the Tribunal accepted that if Mr Kwatra relapses into alcohol abuse, his health is likely to deteriorate.
37 Taking Mr Kwatra’s health condition into account, the Tribunal found at [119] that even if he did remain abstinent from alcohol, Mr Kwatra would be confronted by “considerable impediments in re-establishing himself and maintaining basic living standards” and found that this consideration weighted “very substantially” in favour of revocation, even going so far as deciding to treat it as a primary consideration. Furthermore, I do not accept that the Tribunal failed to consider claims advanced by Mr Kwatra to the effect that he may die destitute if returned to India, whether by reason of catching COVID-19 or as a result of the impediments that he would face. The tenor of all of Mr Kwatra’s claims as to impediments that he would face was that his health would suffer such that he could not support himself or his health requirements if he is returned to India. It is apparent from the findings of the Tribunal that, having considered the positive and negative factors, the balance weighed strongly, in this aspect of its decision, in favour of revocation.
38 Having regard to this process of reasoning, in my view it cannot be said that the Tribunal failed to give adequate consideration to the matters alleged in particular (a) of ground 1. Having regard to this conclusion it is not necessary for me to consider the question of materiality, although I note that, having regard to the weight given by the Tribunal to the impediments factor, it is difficult to see how there could be a realistic prospect that, had the matters to which Mr Kwatra refers been given more detailed consideration, that could have led to any further weight being placed upon it within the principles set out in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] (Bell, Gageler and Keane JJ).
3.4 Ground 1(b) – failure to consider non-refoulement obligations
39 Mr Kwatra submits that the Tribunal was obliged to give active consideration to whether or not Australia owed non-refoulement obligations to Mr Kwatra by reason of the matters that he raised as impediments to his return to India. He contends that the obligation in the Direction at cl 9.1(1) “not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm” ought to have been the subject of consideration in the present case. He submits that the Court set aside the Tribunal’s first decision because it found “a material claim was made concerning Australia’s non-refoulement obligations where an identified risk of harm to Mr Kwatra upon his return to India was not considered”. He submits that on remittal the Tribunal confined its consideration to impediments, and explicitly did not consider his claims as also acquiring added weight under the Direction if they went beyond impediments to harm requiring non-refoulement.
40 In his oral submissions Mr Kwatra submitted that, even though it was not raised by him before the Tribunal as a ground, cl 9.1(1) was raised by the material or evidence before the Tribunal and, having regard to the fact that he was then self-represented, the Tribunal ought to have realised that it was relevant and taken it into consideration, citing NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58] (Black CJ, French and Selway JJ). He submits that the obvious risk of harm to his life by destitution and disease if he returned to India in the time of COVID-19 engaged the obligations arising under the International Covenant on Civil and Political Rights, which is specifically mentioned in cl 9.1(1).
41 Mr Kwatra submitted that Plaintiff M1 concerns Direction 65, an earlier Direction by the Minister than the Direction that applies to this matter, which included the wording
where a non-citizen … would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
whereas the Direction applicable in this matter does not contain that statement but instead “more flexibly” states at 9.1(5) that non-refoulement claims
will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa.
He submits that the Direction explicitly requires consideration of non-refoulement questions where return of a non-citizen may lead to harm which violates obligations under the International Covenant on Civil and Political Rights. Consequently, he contends that the Tribunal was required by the Direction to consider a question of non-refoulement as a mandatory relevant consideration, and that that requirement was not met by any consideration of a possible future application for a protection visa, as the Tribunal simply determined there was no claim advanced or issue of non-refoulement to be considered. He further contends that, regardless of the findings in Plaintiff M1, the decision-maker was required to read, identify, understand and evaluate the representations made by the Applicant, and that the tribunal failed to do so.
42 The Minister submits that Mr Kwatra did not advance any claim that directly sought to engage Australia’s non-refoulement obligations but rather specifically sought to engage only the “extent of impediments if removed” consideration, despite the fact that remittal to the Tribunal was on the basis of a potential non-refoulement obligation arising, and despite the fact that the Tribunal briefly explained the meaning of non-refoulement obligations to Mr Kwatra during the course of the hearing.
43 The Minister further submits that the Tribunal nonetheless turned its mind to the consideration of non-refoulement obligations at [101]-[102] and, having considered them, afforded them neutral weight. The Minister also submits that the circumstances of the case as presented before Tribunal did not give rise to a need for it to consider non-refoulement obligations in any event, because the claims advanced by Mr Kwatra were not of the character of obligations recognised under s 5 of the Act.
44 The Minister submits that, as in Plaintiff M1, this is a case in which Mr Kwatra is free to apply for a protection visa under the Act, and that the decision in Plaintiff M1 makes clear that there is nothing in the text of s 501CA that required the Minister (or the Tribunal) to take account of any non-refoulement obligations as a mandatory consideration.
45 The Direction cl 9.1(1) provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
….
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
46 In its reasons, the Tribunal observed at [101]-[102] that Mr Kwatra did not advance any non-refoulement claims, noting that his claims instead focussed on impediments to re-establishing himself in India. It concluded that cl 9.1 “is not enlivened and carries neutral weight. The Applicant’s claims about impediments are considered next”. Thereafter the impediments to return facing Mr Kwatra were considered in some detail and given the weight of a primary consideration.
47 That was not an inappropriate course to take.
48 On judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant (or an applicant’s lawyers) at a later stage; S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 at [1] (Gleeson CJ, in dissent, but citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; 211 CLR 441 at [31] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ)).
49 Even making due allowance for the fact that Mr Kwatra was self-represented, it is apparent that he chose to present his case to the Tribunal on bases other than in reliance on cl 9.1(1). First, the express basis for the remittal to the Tribunal was that the earlier decision had not taken into account an apparent claim arising from non-refoulement obligations: at [46] of Kwatra. It was plainly a matter of which Mr Kwatra must have been aware. Secondly, Mr Kwatra was found by the Tribunal to be an intelligent man who was fluent in English. He had filed written submissions signed by himself upon which he relied before the Tribunal on both occasions. Thirdly, the Tribunal explained to him during the course of the hearing that it could take into account international non-refoulement obligations. However, the Tribunal considered that Mr Kwatra instead elected to advance his case, not by reference to any non-refoulement obligations, but rather by reference to the extent of impediments that he would face upon his return, under cl 9.2 of the Direction.
50 In those circumstances, the fact that he was self-represented cannot obscure the fact that Mr Kwatra elected to advance his case on a basis that is different to the basis now advanced in this Court.
51 It was against this background that the Tribunal determined that the cl 9.1 was “not enlivened”.
52 Contrary to the submission advanced by the Minster, this should not be taken to indicate that the Tribunal had considered and determined that cl 9.1 considerations should be given neutral weight, but rather that the Tribunal considered that Mr Kwatra had elected not to rely on cl 9.1, and so did not consider it.
53 The obligation of a Tribunal to consider non-refoulement claims was recently re-stated in Plaintiff M1 (Kiefel CJ, Keane, Gordon and Steward JJ) as follows (citations omitted):
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
…
28. Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
29. Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia’s domestic law.
30. Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4)60, but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
(Emphasis removed.)
54 It is apparent that the Tribunal found that the representations made by Mr Kwatra did not include, and the circumstances did not suggest that Mr Kwatra was seeking to make a non-refoulement claim.
55 Furthermore, the non-refoulement obligation that Mr Kwatra now seeks to invoke is harm arising under the International Covenant on Civil and Political Rights as risking his “inherent right to life” (Article 6.1), “cruel, inhuman or degrading treatment or punishment” (Article 7.1) and the “right to … security of person” (Article 9.1). Clause 9.1(1) of the Direction concludes that, “in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act”. The definition of “non-refoulement obligations” in s 5 of the Act does not extend to include these obligations in the sense of the harm Mr Kwatra submits he would face. The direction in cl 9.1(1) requires that “in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act”. In the context of s 36(2A) of the Act and protection visa refusals, the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” incorporate the element of actual subjective intent: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [26]-[27] (Kiefel CJ, Nettle and Gordon JJ). In the context of protection visas, a general lack of healthcare services in a country to which an applicant is to be returned does not amount to intentional infliction of harm, as required for “cruel, inhuman or degrading treatment or punishment”: see, for example, FJP17 v Minister for Home Affairs [2019] FCA 256 at [33] (Banks-Smith J). Similarly, removal to a country with inadequate medical treatments and the prospect of dying of a health condition was not, without more, something that would “arbitrarily deprive [the applicant] of life” as in Article 6 of the Covenant: see, for example, SZDCD v Minister for Immigration and Border Protection [2019] FCA 326 at [48] (Gleeson J). Furthermore, SZTAL has been applied in the context of s 501CA(4): see Afu v Minister for Home Affairs [2018] FCA 1311, in which the claimant raised his inability to access the medical help that he needed in Tonga because Tonga did not have the same health system as Australia, at [58]-[62] (Bromwich J).
56 Accordingly, had the circumstances of the conduct of the proceedings before the Tribunal extended to include an obligation on its part to consider that claim, then it did not give rise to a mandatory relevant consideration under s 501CA(4); Plaintiff M1 at [28].
57 Finally, even if the healthcare issues Mr Kwatra raised were to give were to give rise to non-refoulement obligations, I do not accept that, having regard to the detail of consideration and weight given by the Tribunal to the facts within its consideration of the impediments factor as being in favour of the applicant (discussed above), there could be a realistic prospect that, had the matters to which Mr Kwatra refers been considered in the context of non-refoulement, this could have led to any material difference in the Tribunal’s final decision.
58 Accordingly, ground 1(b) must be rejected.
4. GROUND 2: LEGAL UNREASONABLENESS
59 In ground 2 of his application Mr Kwatra contends that the Tribunal fell into jurisdictional error in that it was legally unreasonable because: first, having correctly found that the “extent of impediments if removed assumes the weight of a primary consideration” (at [118], [119]), in all of the circumstances of the case it was unreasonable for the Tribunal to conclude that the factors relating to the extent of impediments if removed did not amount to being another reason to revoke the cancellation of the visa; and secondly, in all the circumstances it was unreasonable for the Tribunal not to find that Australia’s non-refoulement obligations were engaged.
60 Mr Kwatra submits that, in addition to the finding that the extent of impediment assumed the weight of a primary consideration, additional circumstances included:
(1) The length of time that he had lived in Australia;
(2) His criminal history and its causes;
(3) The material concerning his mental and physical health;
(4) The support he would have if remained in Australia and the absence of support if he returned to India; and
(5) The COVID-19 virus in India and its likely effect on him.
61 The effect of Mr Kwatra’s submissions is to contend that the Tribunal’s decision was unreasonable when considered overall, in the manner set out in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [27]-[28] (French CJ), at [68]-[76] (Hayne, Kiefel and Bell JJ), namely that an inference of unreasonableness may be objectively drawn from the outcome even where a particular error in reasoning cannot be identified. See also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [6]-[7] (Allsop CJ), at [90]-[91] (Wigney J)), and at [61] (Griffiths J).
62 I am unable to agree with that contention. It is apparent from the reasons of the Tribunal as a whole that it took into account all of the factors listed in (1)-(5) above, and also the matter considered as weighing very substantially in favour of revocation of the cancellation decision, being the extent of impediments that Mr Kwatra would face upon his return to India. The Tribunal balanced those factors against other factors that it considered weighed against revocation, which included close consideration of the potential harm of repeat offending (at [77]), the extent of harm caused (at [79]) and the nature and seriousness of his offending (at [79]) which weighed very substantially against revocation, and other factors summarised above in section 2.
63 Having regard to these factors, in my view it cannot be said that the decision of the Tribunal fell outside the boundary of that which was left to it as a matter of decisional freedom. Ground 2 insofar as it depends on the particulars set out in (b) must fail.
64 Having regard to my findings in relation to ground 1(b), ground 2 insofar as it relies on the particulars set out in (c) must also fail. That ground relies on the supposition that the Tribunal failed to consider Australia’s non-refoulement obligations in circumstances where Mr Kwatra did not raise them as a relevant consideration.
65 The application must be dismissed with costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. |
