Federal Court of Australia

Shi v Minister for Home Affairs [2022] FCA 708

ORDERS

THE COURT ORDERS THAT:

1.    The application for review be dismissed with costs.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

Introduction

1    The applicant, Wuwei Shi, is a Chinese citizen and the former holder of a class BB subclass 155 five year resident return visa. He seeks judicial review under s 476A(1)(c) of the Migration Act 1958 (Cth) of a decision of the Minister of Home Affairs under s 501CA(4) not to revoke the mandatory cancellation of his visa. Mr Shi’s visa was cancelled pursuant to s 501(3A) of the Act following his conviction and sentence to 14 months imprisonment for possession of child exploitation material.

2    The focus of the grounds of review is whether the Minister’s reasons, read fairly and as a whole, demonstrate that the Minister properly engaged with Mr Shi’s representations when performing the evaluative task posed by s 501CA(4)(b)(ii) — whether there is another reason why the visa cancellation should be revoked — and if he failed to do so, whether Mr Shi has established that the error was material.

3    For the reasons that follow, the application for review is dismissed with costs.

Background

4    Mr Shi is 29 years old. He arrived in Australia on 12 August 2007, aged 15, with his mother when she married an Australian. Mr Shi’s mother and step-father have since divorced. Mr Shi has a step-brother who is ten years older than him and a 12 year old half-sister. To protect the privacy of Mr Shi’s half-sister I have not used her or her mother’s name in these reasons and have redacted identifying details from the primary materials reproduced within.

5    Prior to his incarceration, Mr Shi had worked as a ceiling fixer at his step-brother’s plastering company since 2010 where he was a supervisor. Since his mother’s divorce, Mr Shi has been the main breadwinner in the household. Mr Shi took out a home loan to buy the home in which he resides with his mother and half-sister. He has over $600,000 of debt.

6    On 11 June 2020, Mr Shi was sentenced to 14 months imprisonment for possession of child exploitation material, an offence under s 220 of the Child Pornography and Exploitation Material and Classification Legislation Amendment Act 2010 (WA) by the District Court of Western Australia. Mr Shi’s appeal against his sentence to the Western Australian Court of Appeal was dismissed: Shi v State of Western Australia [2020] WASCA 197.

7    On 25 June 2020, Mr Shi's visa was cancelled under s 501(3A) of the Act because a delegate of the Minister was satisfied he did not pass the character test due to the operation of s 501(6)(a) (substantial criminal record) on the basis of s 501(7)(c) and because he was serving a sentence of imprisonment on a full-time basis: s 501(3A)(b). The rules of natural justice do not apply to a decision under s 501(3A) of the Act — a visa may be cancelled without the holder being given procedural fairness: s 501(5).

8    Mr Shi’s offending is detailed in the decision of the Court of Appeal and is not repeated here: Shi at [5] to [8]. The child exploitation material was located on an external hard drive found in Mr Shi’s home. The sentencing judge described the material as falling into the upper end of the categories of seriousness of images and videos: Shi at [9]. In response to Mr Shi’s submission that he was not aware that it was an offence to possess the material, the sentencing judge said that “no right-thinking person could have accepted that the degrading, disgusting treatment of the children, which occurred in many of the videos that [Mr Shi] possessed, was acceptable”. The sentencing judge characterised Mr Shi’s conduct as “a very serious example of offending of this kind”. In dismissing Mr Shi’s appeal against sentence, the Court of Appeal did not regard Mr Shi’s social isolation, due mainly to his lack of English, as being an exceptional mitigating factor: Shi at [63(4)], [64].

9    Following the mandatory cancellation of Mr Shi’s visa, in response to the Minister’s invitation under s 501CA(3)(b) of the Act, Mr Shi made representations as to why the Minister should revoke the cancellation of his visa.

10    On 18 February 2021, the Minister decided not to revoke the visa cancellation. The present application for judicial review is in respect of the Minister’s decision, which was made under s 501CA(4) of the Act.

11    Mr Shi raises two grounds of review which rely on a common basis, namely that the Minister constructively failed to exercise the jurisdiction because he did not engage in the requisite way with “significant and clearly expressed representations” made by Mr Shi. The representations the subject of the first ground relate to the impact of Mr Shi’s removal on his half-sister and were to the effect that the psychological impact on her would be significant, including by reference to her having had suicidal thoughts, and that she would lose him as her only source of financial support. The representations the subject of the second ground relate to the impact that removal would have on Mr Shi himself, and were to the effect that removal would cause him “immense psychological distress” and “put him at a considerable risk of suicide”.

Relevant Principles

12    The relevant principles are not in dispute. The dispute between the parties is in respect of the proper construction of the Minister’s reasons and whether the Minister’s reasons demonstrate the requisite level of engagement with the representations made by Mr Shi.

13    It is well-established that the statement of reasons must be read fairly in the context in which they were delivered and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v WuShan Liang [1996] HCA 6; 185 CLR 259, 272 and 291 (Brennan, McHugh, Toohey, Gummow JJ) citing Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 286 – 287.

14    The decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 was delivered after the hearing of the present application. In Plaintiff M1/2021, the plaintiff and the Minister agreed to state questions of law for the opinion of the Full Court of the High Court. The primary question presented by the special case was whether, in deciding whether there was “another reason” to revoke a cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act, the decision-maker was required to consider the plaintiff’s representations which raised a potential breach of Australia’s international non-refoulement obligations where the plaintiff was able to make a valid application for a protection visa. The present application does not concern representations which raise the issue of non-refoulement. The decision in Plaintiff M1/2021 is relevant because, in answering the stated questions, the plurality addressed what is necessary for a decision-maker to do to comply with the statutory requirement for a valid exercise of the revocation power in s 501CA(4) of the Act. The parties were invited to make further written submissions in respect of the decision in Plaintiff M1/2021 and did so.

15    In Plaintiff M1/2021, Kiefel CJ, Keane, Gordon and Steward JJ, began by considering the relevant statutory scheme within which s 501CA(4) is situated. For present purposes, the following observations of the plurality are relevant (at [14] – [15]):

14    Where a person's visa has been cancelled under s 501(3A), s 501CA provides a procedure for possible revocation of the original decision. The procedure relevantly has two aspects – as soon as practicable after making the original decision, the Minister must: give the person a written notice that sets out the original decision; and "invite the person to make representations to the Minister ... about revocation of the original decision" (emphasis added).

15    Section 501CA(4) then provides that the Minister may revoke the original decision if the person makes representations in accordance with the invitation issued under s 501CA(3)(b) and the Minister is satisfied that the person passes the character test (as defined in s 501) or "that there is another reason why the original decision should be revoked"…

(footnotes omitted)

In separate reasons, Gageler J agreed with the plurality save as to the form of the first question posed.

16    The plurality then addressed the manner in which a decision-maker should approach representations made by the former visa holder when making a decision arising under s 501CA(4) of the Act (at [22] – [27]):

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.

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

26    Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

27    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker's reasons discloses that the decision maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(footnotes omitted)

17    On judicial review, the Court’s assessment of whether the decision-maker has engaged with the former visa holder’s representations to the requisite degree will frequently be a matter of impression reached in light of all the circumstances of the case, including the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons. Upon judicial review the Court is required to qualitatively assess 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; 267 FCR 643, 654 at [45] (Rares and Robertson JJ), cited in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ).

Grounds of review

18    The grounds of review in the amended originating application are (as written):

1    The respondent constructively failed to carry out his task under s 501 CA(4) of the Act when deciding whether there was another reason why the original decision to cancel the applicant's visa should be revoked, by failing to give proper, genuine and realistic consideration to the merits of the case engage in an active intellectual process with significant and clearly expressed relevant representations.

Particulars

(a)    The respondent was required to give proper, genuine and realistic consideration engage in an active intellectual process with significant and clearly expressed relevant representations concerning to the best interests of the applicant's ten year old stepsister when deciding whether there was another reason why the original decision to cancel the applicant's visa should be revoked.

(b)    There was evidence before the respondent that the impact of the applicant's removal from Australia on his stepsister would be 'very severe', and that she would 'suffer enormously', that she had presented to a psychologist with a depression score 'at severely HIGH level of psychological distress', and that she had suicidal ideation; in addition there was evidence that the applicant's removal from Australia meant that his step-sister would lose her only source of financial support.

(c)    The respondent failed to engage with the above evidence. The respondent's factual findings on the evidence were limited to an acceptance that the applicant 'has a close relationship' with his stepsister, and that the stepsister has 'a certain degree of dependency' on the applicant for her physical, emotional and financial needs.

(d)    The failure of the respondent to engage with the evidence in relation to the stepsister was material, in that the respondent only gave 'moderate weight' to the best interests of the stepsister, had the respondent engaged with the evidence he might have given far greater weight to the best interests of the stepsister.

2    The respondent constructively failed to exercise his jurisdiction in the following respects:

Particulars

(a)    The applicant, through the report of Dr Hoong of 9 September 2020 made a representation that deportation would cause him "immense psychological distress" and that "deportation would put him at considerable risk of suicide".

(b)    These representation were noted by the respondent in [24] of his decision.

(c)    In determining the applicant's extent of impediments if removed, the respondent stated "I accept that the absence of family and social support will pose a degree of hardship" but failed to engage with the "human consequences involved": Hands v Minister for Immigration and Border Protection [2018] FCAFC 225: 364 ALR 423 at [3]

(d)     The respondent was required to engage in an active intellectual process with significant and clearly expressed relevant representations concerning the risk of suicide if the applicant is returned to China, and failed to do so.

The Minister’s Decision

19    Having regard to the narrow focus of the grounds of review, the Minister’s reasons for decision (R) may be summarised at a fairly high level.

20    It was not in dispute that as a result of his criminal conviction and sentence, Mr Shi did not pass the character test in s 501CA(4)(b)(i) of the Act and accordingly the Minister was not satisfied that he did so. The focus of the decision was on whether the Minister was satisfied that there was another reason why the visa cancellation decision should be revoked: s 501CA(4)(b)(ii) of the Act.

21    The Minister summarised, on an inclusive basis, the representations made by Mr Shi. Relevantly, having regard to the grounds of review, the Minister included in his summary the following reasons advanced by Mr Shi:

He is close to his 11 years old sister who is an Australian citizen. She relies on him for physical, emotional and financial needs; and she will be negatively impacted by his removal.

and

He has no familial support in China and the removal will affect his mental health.

22    In relation to ground 1 — the impact that Mr Shi’s removal would have on his half-sister — the Minister engaged with Mr Shi’s representations as follows:

14    I am cognisant Mr SHI has a younger half-sister, XXXX (DOB: XXXX, aged 11) who is an Australian citizen. Mr SHI has lived with [his half-sister] since her birth and they have a close relationship; he supports her financially, physically and emotionally. Mr SHI encourages [his half-sister] to study and is involved her [sic] recreational life, such as taking her out to buy her favourite food. [His half-sister] is missing Mr SHI and becomes very sad as a result. Mr SHI’s representative states [his half-sister] will suffer 'enormously' if Mr SHI is removed and has had suicidal thoughts. I take into account the various diary entries of [his half-sister] submitted to the Department, which express her sadness while Mr SHI is away.

15    Mr SHI’s mother and step-brother confirm this close relationship and state Mr SHI is a good brother and a role model for [his half-sister], who has often been in tears since Mr SHI’s incarceration. A family friend of 10 years also confirms the close relationship Mr SHI has with [his half-sister].

16    A psychologist assessed [Mr Shi’s half-sister] as suffering 'severely HIGH level of psychological distress' since Mr SHI was incarcerated. She found that Mr SHI’s removal would have a significant negative impact on [his half-sister’s] mental health.

17    From the evidence provided, I find that it is in the best interests of [Mr Shi’s half-sister] that I revoke the original decision to cancel Mr SHI’s visa. I accept Mr SHI has a close relationship with [his half-sister], who has lived with her mother and Mr SHI all her life. While I also accept [Mr Shi’s half-sister] has a certain degree of dependency on Mr SHI for her physical, emotional and financial needs, her mother is available to her and provides her parental care needs. With this in mind, I give this consideration moderate weight.

and:

28    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the strength, nature and duration of Mr SHI’s ties to Australia.

…

30    I accept that Mr SHI has family ties to Australia. Mr SHI has his mother, a step-brother and a step-sister-in-law in Australia, as well as his half-sister XXXX, discussed above. Evidence submitted shows Mr SHI’s mother, half-sister, step-father and step-brother are Australian citizens.

31    I am mindful that Mr SHI’s mother is divorced from his former step-father and she lives with her daughter XXXX (from the former relationship) in the house Mr SHI owns; he financially supports them.

32    Mr SHI’s mother and step-brother provided letters of support to the Department. Letters of support from a family friend and a church minister also confirm the close familial relationship. I accept that Mr SHI has a close relationship with his mother and half-sister and that they are psychologically and financially dependent on him.

…

35    I have considered the effect of non-revocation upon Mr SHI’s immediate family in Australia and accept that those persons would experience emotional and financial hardship …

23    In relation to ground 2 — the extent of impediments that Mr Shi would experience if removed, specifically a risk of suicide — the Minister engaged with Mr Shi’s representations as follows:

21    I have also had regard to the impediments that Mr SHI will face if removed from Australia to his home country of China in establishing himself and maintaining basic living standards.

22    Mr SHI states the living standard in the village where his mother grew up is low and he does not like living there. He is not close to the relatives he has in China and he would have no support there.

23    Mr SHI’s representative acknowledges he will not face any cultural and language barriers returning to China, but he will encounter financial difficulty. His relatives in China are poor and it will be difficult for Mr Shi to find employment to repay the $600,000 loan he has in Australia.

24    Mr SHI suffers from stress and depression. A psychologist's report dated 23 September 2020 states Mr SHI’s ability to care for his family in Australia bolstered his very low self-esteem; whereas removing him from his family would lower his self-esteem further. The removal would cause Mr SHI 'immense psychological distress', which would put him 'at considerable risk of suicide'.

…

26    I take into account that the living standard of the village where Mr SHI’s relatives reside may not be comparable to Australia. However, I find that, as Mr SHI would not receive any support from his relatives and does not want to live in that area, there is no apparent obstacle to him moving away from the village and re-establishing himself in a bigger city in China, where the standard of living may be higher and opportunities greater. Moreover, Mr SHI is young, physically healthy, without any cultural and language barriers, and his work experience would assist him to find employment. I accept that the absence of family and social support will pose a degree of hardship for him, but he would be able to keep in touch by electronic and other means.

…

24    The other issues that the Minister considered in evaluating whether he was satisfied that there was another reason to revoke the visa cancellation are relevant when it comes to considering whether the errors the subject of the grounds of review, if established, were material in a jurisdictional sense.

25    In relation to the expectations of the Australian community, the Minister found that the Australian community would expect non-citizens to obey Australian laws while in Australia: R[19]. Further, that Mr Shi had been convicted of an offence in Australia of a type that the Australian community finds particularly repugnant: R[19]. The Minister concluded that given the nature of his offence, the Australian community would expect that Mr Shi should not hold a visa: R[20].

26    The Minister had regard to the consideration of the protection of the Australian community, noting in particular Mr Shi’s claim that he would not reoffend, and also considered the Government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens: R[36].

27    The Minister considered that the sentence imposed on Mr Shi was a valuable indicator of the seriousness of his offending, noting that dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy: R[43]. The Minister regarded the term of imprisonment of 14 months (which was confirmed by the Court of Appeal), especially as a first custodial sentence, underscored that Mr Shi’s offending was of a serious nature. Accordingly, the Minister found that Mr Shi’s offending must be considered very serious: R[43].

28    The Minister considered the risk to the Australian community. The Minister found that there is an ongoing risk that Mr Shi would reoffend but that the risk was low: R[59]. Nonetheless, the Minister found that, if that risk were to eventuate, offending relating to child pornography could result in harm to Australian children, albeit that harm may be indirect: R[59].

29    Ultimately, the Minister was not satisfied that there was another reason why the visa cancellation decision should be revoked: R[67]. That was despite the fact that the Minister weighed the following factors as being in favour of revocation of the visa cancellation. The Minister gave primary consideration to the best interests of Mr Shi’s half-sister and recognised that it would be in her best interests if the visa cancellation was revoked: R[61]. The Minister also weighed the following matters in favour of revocation: (1) the length of time that Mr Shi had made a positive contribution to the Australian community (over 10 years) (R[62]); (2) the consequences of non-revocation for Mr Shi’s other family members (R[66]); and (3) the extent of impediments that Mr Shi would face if he were removed to China (R[66]).

30    Against these factors, the Minister regarded the following considerations as weighing against revocation. First, the Minister gave significant weight to the very serious nature of the crime committed by Mr Shi. In doing so, the Minister noted that the offence was of a sexual nature and involved the exploitation of minors: R[64].

31    Secondly, the Minister found that the Australian community could be exposed to significant harm should Mr Shi reoffend in a similar fashion and that he could not rule out the possibility of further offending by Mr Shi: R[64].

32    Thirdly, the Minister observed that where significant harm could be inflicted on the Australian community if a visa cancellation was revoked then even strong countervailing considerations may be insufficient for him to be satisfied that there was another reason to revoke the cancellation decision: R[65].

33    The Minister concluded that:

66.    … Mr SHI represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community and the expectations of the community, outweighed the best interests of his minor half-sister, as a primary consideration, and any other considerations as described above. These include his lengthy residence and ties, employment, and familial to Australia, and the hardship Mr SHI, his family and social networks will endure in the event the original decision is not revoked.

67.    Therefore, I am not satisfied that there is another reason why the decision to cancel Mr SHI’s Class BB Subclass 155 Five Year Resident Return visa should be revoked, as required by s501CA(4)(b)(ii) of the Act. Consequently, my power to revoke is not enlivened and Mr SHI’s visa remains cancelled.

Consideration

Substantial overlap between the grounds

34    As mentioned, the grounds of review overlap substantially in that the error alleged in both grounds is that the Minister erred in failing to consider, in the requisite way, two of the representations made by Mr Shi, which are the subject of grounds 1 and 2 respectively.

35    Before turning to consider whether the Minister engaged with Mr Shi’s representations in the requisite way such that his exercise of the power under s 501CA(4) of the Act was not affected by error, I am mindful of the limited role of the Court in reviewing the exercise of administrative decision-making powers, particularly in respect of a decision that involves the exercise of a wide discretionary power, such as s 501CA(4) of the Act: Plaintiff M1/2021 at [26].

36    Both grounds allege failure to engage in an “active intellectual process” in relation to representations relating to the effect of the non-revocation of Mr Shi’s visa on him personally and on his minor half-sister. As the decision of the plurality in Plaintiff M1/2021 makes plain, labels such as “active intellectual process” must be understood in their proper context. Such labels do not give rise to a kind of general warrant for the Court on review to scrutinise the procedural and substantive merits of the Minister’s decision with a view to substituting the Court’s own views for those of the administrative decision-maker. That is not the correct approach. The finding that a decision-maker did not apply an active intellectual process to a question he or she was required to consider should “not lightly be made and must be supported by clear evidence”: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, 364 at [48] (Griffiths, White and Bromwich JJ); see also GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202, 220 at [32(g)] (Flick, Griffiths and Moshinsky JJ). In GBV18, the Full Court said (at 220 [32(h)]:

Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker’s ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed.

Submissions advanced on behalf of Mr Shi

37    In this Court, the submissions advanced for Mr Shi sought to characterise those instances where the Minister referred to Mr Shi’s representations as a mere recounting, rather than the requisite engagement that is required. Accordingly, Mr Shi submits that the Minister did not adequately consider the representations as a matter of law, relying on Carrascalao at [131].

38    Mr Shi contends that his grounds of review do not seek to attack the Minister’s “weighing exercise”. Rather, Mr Shi contends that the Minister’s error was in failing, in substance, to actively engage with his representations, relying on Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [38] – [39] where the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) said:

38     In short, as the respondent’s counsel on the appeal (Mr Wood) put it, the Assistant Minister has to take responsibility for what he is doing. This responsibility has both a political and a legal dimension.

39    …Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [32] - [36] per Perram J).

39    Mr Shi submits that the requirement to set out the reasons for decision in s 501G(1)(e) of the Act is an important accountability mechanism: Omar at [34(a)].

40    In the circumstances of the present application, Mr Shi contends that it was not sufficient for the Minister to “just recount” the risk of suicide (whether that risk was in relation to Mr Shi or his half-sister). Mr Shi submits that the Minister was obliged to engage in some “reflection upon the whole consideration of the human consequences involved”: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225: 364 ALR 423 at [3] (Allsop CJ with whom Markovic and Steward JJ agreed).

41    Mr Shi placed considerable reliance on the decision in Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 (Perram J). Mr Shi submits that to engage with the representations made at the requisite level, the Minister’s reasons should have included a reflection that involved discussion and consideration of the feared harm eventuating: Ezegbe at [32] – [36]. Further, that on reading the Minister’s decision, the reader should be able to discern whether the Minister accepted that the claimed risk exists: Ezegbe at [33]. Mr Shi submits that the Minister’s decision gave no indication as to whether the Minister accepted the representations made as to the risk of suicide by Mr Shi or by his half-sister. Accordingly, Mr Shi contends that the structure, tone and content of the Minister’s decision, and the absence of any engagement in a factual assessment of whether the articulated risks of suicide were likely to eventuate, demonstrates that the Minister failed to consider, in the relevant legal sense, the representations made by Mr Shi.

Ground 1 – Mr Shi’s half-sister

42    The principal criticism advanced by Mr Shi is that the Minister’s reasons lack an “honest confrontation” with the risk of Mr Shi’s half-sister committing suicide or suffering a high level of psychological distress as a result of her separation from Mr Shi. Yet, the Minister found that it was in the best interests of Mr Shi’s half-sister that he revoke the decision to cancel Mr Shi's visa: R[17]. The Minister accepted that Mr Shi had lived with his half-sister since her birth and that they had a close relationship, that he supported her financially, physically and emotionally and that she had become very sad as a result of Mr Shi’s absence (due to his incarceration): R[14]. The Minister took into account diary entries submitted to the Department of Home Affairs where Mr Shi’s half-sister expressed her sadness, and the submission advanced that his half-sister had had suicidal thoughts: R[14]. The Minister referred to a psychologist's opinion as to Mr Shi’s half-sister's severely high level of psychological distress since Mr Shi’s incarceration, and that Mr Shi's removal would have a significant negative impact on her mental health: R[16]. The Minister found that while Mr Shi’s half-sister "has a certain degree of dependency on Mr Shi for her physical, emotional and financial needs, her mother is available to her and provides her parental care needs": R[17]. It was in the context of those findings, which were made as a result of engaging with the representations advanced by Mr Shi, that the Minister gave the best interests of minor children moderate weight in favour of revocation in his assessment of whether he was satisfied that there was another reason to revoke the visa cancellation decision. In his conclusion, the Minister again remarked that he had given primary consideration to Mr Shi’s half-sister's best interests, which he was satisfied would be served by revocation: R[61].

43    The submissions advanced by Mr Shi focus heavily on the Minister’s statement that Mr Shi’s half-sister’s “mother is available to her and provides her parental care needs”. A fair reading of the whole of the reasons reveals that the Minister accepted Mr Shi’s representation as to the level of support, including emotional and financial support, which Mr Shi provided to his half-sister. Focussing on the emotional impact on Mr Shi’s half-sister, the Minister accepted the evidence that she was “very sad” as a result of Mr Shi’s absence. The Minister referred directly to the diary entries made by Mr Shi’s half-sister which were submitted by Mr Shi. The Minister referred to the psychologist’s assessment relied upon by Mr Shi, noting that his half-sister was assessed as suffering “severely HIGH level of psychological distress” and that Mr Shi’s representative submitted that she had “suicidal thoughts”. That submission appears to have been based on the psychologist’s report where it is stated that Mr Shi’s half-sister had “reported having suicidal thoughts but without plan” and quotes from a diary note where Mr Shi’s half-sister wrote: “I cry every night and I can’t sleep at night because I miss my brother so much …if my brother does not come home, I don’t want to live”.

44    The statement by the Minister (at R[17]) that Mr Shi’s half-sister’s “mother is available to her and provides her parental care needs” must be read in context. The complete sentence reads – “[w]hile I also accept [she] has a certain degree of dependency on Mr Shi for her physical, emotional and financial needs, her mother is available to her and provides her parental care needs”. When read in full, and in context, it is plain that the Minister took into account the ongoing availability of Mr Shi’s mother to provide parental care in concluding that moderate weight should be attributed to his half-sister’s best interests, when balancing the best interests of minor children against other relevant considerations.

45    As to Mr Shi’s reliance on Ezegbe, the Court’s finding of error in that case was made in a different context to the circumstances of this case. Ezegbe concerned an application for review of a decision to cancel a visa on character grounds. The applicant, Mr Ezegbe, applied to the Minister seeking revocation of the cancellation decision and made representations which included that he would be at risk of harm if returned to Nigeria. He contended that he would be targeted by both sides of the conflict concerning the right of the region of Biafra to autonomous self-rule. In resolving the application against the Minister, Perram J found that the Minister gave consideration to the consequences that would emerge from Mr Ezebge returning to Nigeria holding those fears and not the actual consequences of the fears held, or the actual harm that might likely eventuate on his return to Nigeria. That is, the Minister fell into error by failing to deal with aspects of the representations which were made to him and were not related to claims which might be made for a protection visa: see Ezegbe at [37] – [38] and the cases cited therein. It is this distinction between Ezegbe and the circumstances of the present application that must be appreciated. This is not a case where Mr Shi submits that the Minister considered a different harm, fear or consequence to the one put forward by him concerning the risk of harm to his half-sister, nor is it said that there was a failure of consideration in a total sense, but instead there is said to be, effectively, a constructive failure on the Minister’s part arising from a lack of active intellectual engagement with particular aspects of the representations that were put forward on behalf of Mr Shi.

46    A fair reading of the whole of the Minister’s reasons confirms that the Minister did read, identify, understand and evaluate the submission concerning Mr Shi’s half-sister. That is reflected in the Minister giving moderate weight to the impact on Mr Shi’s half-sister as a factor in favour of revocation. That the weight allocated was moderate reflects the Minister’s observation that although Mr Shi’s half-sister was dependent on him, she also had her mother available to her. If it had been the case that she did not have her mother available to her, it is possible that the Minister may have attached greater weight to this consideration. The allocation of weight was a matter for the Minister. As the plurality in Plaintiff M1/2021 observed “[f]rom 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”: at [24]. Mr Shi has not established the error for which he contends in ground 1. Ground 1 must be dismissed.

Ground 2 – Mr Shi

47    Ground 2 is directed to Mr Shi’s representation with respect to his risk of suicide if returned to China. Mr Shi submits that the Minister did not engage with this submission in the requisite way.

48    The Minister addressed this representation as part of his consideration of the extent of impediments Mr Shi would face if removed. The Minister accepted that Mr Shi suffers from stress and depression. The Minister quoted from a psychologist's report in which the psychologist concluded that removal would cause Mr Shi "immense psychological distress" which would put him "at considerable risk of suicide": R[24], extracted in full at [23] above. It was the psychologist’s opinion that Mr Shi’s ability to care for his family in Australia “had bolstered his very low self-esteem; whereas removing him from his family would lower his self-esteem further”: R[24]. As part of his consideration, the Minister found that on removal it would be open to Mr Shi to locate himself in a bigger city in China where the standard of living may be higher and the opportunities may be greater: R[26]. He regarded Mr Shi’s age, health, work experience and lack of cultural and language barriers as being favourable for him to find employment. While the Minister recognised the hardship to Mr Shi resulting from the absence of family and social support, a fair reading of the Minister’s reasons reveals that the Minister was of the view that Mr Shi would likely find employment in a city in China and be able to keep in touch with his family by electronic and other means: R[26]. Both those matters are relevant in the context of what the psychologist says about the impact of removal on Mr Shi’s mental health given that the psychologist opines that Mr Shi’s ability to care for his family, prior to his incarceration, was important to his self-esteem.

49    As with ground 1, Mr Shi advances an argument in support of ground 2, that the Minister failed to “engage meaningfully” with Mr Shi’s risk of suicide. Again, the reasons, read fairly and as a whole, demonstrate that the Minister did correctly identify and engage with the relevant representations made by Mr Shi. The Minister accepted that Mr Shi suffered stress and depression and quoted from the psychologist’s report relied on by Mr Shi in relation to his risk of suicide.

50    The structure of R[26] indicates that the reference to Mr Shi being “young, physically healthy, without any cultural or language barriers” was an aspect of the Minister’s consideration of Mr Shi’s representation that the living standard in his mother’s village is low, he is not close to his relatives in China and that he would have difficulty finding employment.

51    Rather than being a formulaic dismissal of the representation in respect of Mr Shi’s risk of suicide if removed, the Minister’s reasons demonstrate that the Minister regarded the absence of cultural and language barriers coupled with Mr Shi’s work experience, as enabling him to establish himself in a bigger city, where the standard of living may be higher (with the result that he would not inevitably encounter the financial difficulty to the degree referred to in his representations). In the final sentence of R[26], the Minister returned to the issue of the hardship posed by his lack of family and social support, accepting that Mr Shi would encounter such hardship, but found that Mr Shi would be able to keep in touch by electronic and other means. The Minister referred to “a degree of hardship” in this sentence. Mr Shi’s complaint is really a complaint about weight — that this factor warranted greater weight than the Minister was prepared to attribute to it. I interpolate to note that Mr Shi’s submissions in support of ground 2 regarding the application of Ezegbe were not persuasive for the reasons set out at [45] above. As with ground 1, the fact that Mr Shi disagrees with the Minister’s ultimate assessment of the degree of hardship that he may suffer upon removal does not establish an error of law. Ground 2 must also be dismissed.

Conclusion

52    Contrary to the submissions advanced by Mr Shi, I am satisfied that the Minister’s reasons demonstrate that the Minister did engage in the requisite sense, and within the bounds of rationality and reasonableness, with the representations made by Mr Shi which are the subject of grounds 1 and 2. In reaching that conclusion I have had regard to the nature, form and content of the representations made by Mr Shi: Plaintiff M1/2021 at [25]; see also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403, 407 at [15] (Keane, Gordon, Edelman, Steward and Gleeson JJ). Reading the reasons of the Minister fairly and in context does not demonstrate that the Minister “ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument” or “misunderstood the case being made by the former visa holder”: Plaintiff M1//2021 at [27] and the authorities cited at footnotes 53, 54 and 56. In fact, the contrary conclusion arises when the Minister’s reasons are read in accordance with established principles. Despite Mr Shi’s protestation that his complaint is not about weight, that is in fact the nub of both grounds of review. Mr Shi has not established the errors alleged in grounds 1 and 2. The application for review should be dismissed with costs.

Associate:

Dated:    17 June 2022