Federal Court of Australia

BYMD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 936

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued to the second respondent quashing its decision made on 21 September 2021 to affirm the mandatory cancellation of the applicant’s Subclass 200 visa;

2.    The matter be remitted to the second respondent, differently constituted, for determination according to law;

3.    The first respondent pay the applicant’s costs of the application to be assessed if not agreed.

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

REASONS FOR JUDGMENT

SC DERRINGTON J:

Introduction

1    The central issue in this application is whether an independent merits review by the Administrative Appeals Tribunal of a decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was procedurally unfair such as to give rise to jurisdictional error on the part of the Tribunal. The unfairness is said to arise, primarily, from the failure to provide the applicant with an opportunity to be heard on matters which were critical to the ultimate decision of the Tribunal.

2    The applicant was granted a Subclass 200 visa in November 2000. That visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) by a delegate of the Minister on 10 September 2020.

3    The applicant made representations to the Minister seeking revocation of the cancellation decision pursuant to s 501CA(4) of the Migration Act. On 29 June 2021, a delegate of the Minister decided not to revoke the cancellation decision. The Tribunal affirmed the Minister’s decision on 21 September 2021 and published reasons for its decision on 29 September 2021 (Reasons).

4    The applicant seeks judicial review of the Minister’s decision pursuant to s 476A of the Migration Act on the following six grounds:

1.    The Second Respondent (Tribunal) failed to afford the Applicant procedural fairness, in that the Tribunal failed to put the Applicant on notice:

a.    that the Tribunal was not going to take into account the best interests of the Applicant’s son; or

b.    alternatively, that the question whether the Tribunal should take into account the best interests of the Applicant’s son was an issue on the review.

2.    The Tribunal constructively failed to exercise jurisdiction, in that, in considering whether to take into account the best interests of the Applicant’s son, the Tribunal failed to consider the Applicant’s representations about the Convention on the Rights of the Child and the International Convention on Civil and Political Rights.

3.    The Tribunal constructively failed to exercise jurisdiction, in that the Tribunal failed to consider the Applicant’s representations about the reasons why the expectations of the Australian community should be given less weight in this case.

4.    The Tribunal failed to afford the Applicant procedural fairness, in that the Tribunal failed to put the Applicant on notice that the question whether the Applicant could relocate to Addis Ababa was an issue on the review.

5.    The Tribunal failed to afford the Applicant procedural fairness, in that the Tribunal failed to give the Applicant an opportunity to comment on country information obtained by the Tribunal that was adverse to the Applicant’s claims, namely the country information referred to by the Tribunal at [240] of its decision record.

6.    The Tribunal constructively failed to exercise jurisdiction, in that the Tribunal failed to consider the Applicant’s representations to the effect that he would face a prospect of indefinite detention.

5    For the reasons that follow, the application is allowed on Grounds 1, 4, and 5. Grounds 2, 3, and 6 are dismissed.

Background

6    The applicant is an Ethiopian citizen who arrived in Australia as an 18-year-old refugee. He commenced offending soon after.

7    Between 2002 and 2020, the applicant committed 33 offences (excluding minor traffic offences) (Reasons at [100]). His offending includes repeated sexual offences, including rape and indecent assault, theft, robbery, possession of a weapon, obtaining a financial advantage, and reckless criminal damage, amongst others.

8    In 2008, the applicant formed a relationship with Ms F (Reasons at [34]) and their son, Child A, was born in September 2010 (Reasons at [48]).

9    In February 2010, the applicant was sentenced to a total effective sentence of five years and seven months with a non-parole period of three years and eight months having been convicted of two counts of rape and five counts of indecent assault (Reasons at [37]-[38]). The psychiatric report tendered on sentencing referred to, inter alia, the applicant’s paranoia and delusional state together with anxiety, depression, and substance misuse (Reasons at [40]). The sentencing judge took into account that the applicant’s “emotional and psychological state at the time may have made it harder for [him] to make moral judgments and harder for [him] to understand the consequences of what [he was] doing.” (Reasons at [42]).

10    It was uncontentious before the Tribunal that the applicant had various mental health diagnoses over the years, with his current diagnosis being schizoaffective disorder (Reasons at [229]). He was hospitalised in 2003 for approximately five weeks following a deterioration in his mental health (Reasons at [40]). It was also uncontentious that, in 2020, the applicant was diagnosed with HIV (Reasons at [234]).

11    In a letter dated 10 September 2012, the Department of Immigration and Citizenship (as it then was) notified the applicant of its intention to cancel his visa under s 501(2) of the Migration Act (Reasons at [49]). The applicant was further advised on 16 July 2013 that a decision had been made not to cancel his visa. He was warned visa cancellation may be reconsidered if he committed further offences (Reasons at [50]). The applicant acknowledged receipt of that letter on 19 July 2013 (Reasons at [51]).

12    Three of the applicant’s offences, those in 2002, 2017, and 2019 were against a de facto partner (Reasons at [154]). The incident on 10 October 2019 related to Ms F and resulted in him being served a Family Violence Safety Notice (Reasons at [63]). Three days after that incident, Ms F and Child A travelled to New Zealand where they remain (Reasons at [64]).

13    On 24 April 2020, the applicant committed a further sexual assault and, on 28 August 2020, was convicted of that offence together with contravening a conduct condition of bail (Reasons at [84]-[85]). He was sentenced to 12 months’ imprisonment for each offence, to be served concurrently (Reasons at [85]). The applicant’s visa was subsequently cancelled in September 2020.

Legislative provisions

14    Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record) . . .; and

(b)     the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

15    Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).

16    Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

17    It is not in dispute that the applicant did not pass the character test in s 501(1) of the Migration Act, because of the operation of para (6)(a), on the basis of para (7)(c).

18    Section 501CA(3) of the Migration Act requires the Minister to invite the person whose visa has been mandatorily cancelled to provide representations about revocation of the original decision.

19    Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the exercise of those functions or powers.

20    Pursuant to s 499(1), such directions have been made from time to time for decision-makers making a decision in relation to visa refusal and cancellation or revocation of a mandatory cancellation of a visa under ss 501 or 501CA of the Migration Act.

21    The most recent iteration, and that which applies to the present case, is Direction 90 which came into force on 15 April 2021.

22    Part 2 of Direction 90 is concerned with how a decision-maker is to exercise the discretion conferred by ss 501 or 501CA. Section 6 of Direction 90 stipulates that, informed by the principles in para 5.2, a decision-maker must take into account the considerations identified in ss 8 and 9, where relevant to the decision (emphasis added).

23    The “primary considerations” are specified in s 8 of Direction 90, being:

•    protection of the Australian community,

•    whether the conduct engaged in constituted family violence,

•    the best interests of minor children in Australia (emphasis added), and

•    expectations of the Australian community.

24    The inclusion of the words “where relevant” in s 8(3) indicates the duty to consider the matters raised in s 8(3) is not an invariable one, and what is “relevant” is a matter of opinion for the individual decision-maker: Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 at [52] per Greenwood, McKerracher and Burley JJ.

25    Section 7(2) provides that “primary considerations” should generally be given greater weight than the other considerations.

Was procedural fairness denied in respect of the best interests of Child A?

26    By Ground 1, the applicant contends he should have been put on notice by the Tribunal that it was not going to take into account the best interests of the applicant’s son, Child A, either as a primary consideration or at all, or that the question of whether the Tribunal should take into account the best interests of Child A was a live issue before the Tribunal.

27    Absent of clear legislative intention to the contrary, the Tribunal was required to accord procedural fairness to the applicant: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326. The question is “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”: WZARH at [30] per Kiefel CJ, Bell and Keane JJ.

28    WZARH was concerned with circumstances in which the review process was altered so as to deny the person affected by the decision an oral hearing, without him being informed, and so as to deny him the possibility of the advantage he may have gained from a consideration of his demeanour at interview. That is not the present case. The applicant was not denied an oral hearing contrary to expectations. The present case concerns whether the applicant was, in truth, given the opportunity of being heard.

29    In response to the invitation issued by the Minister pursuant to s 501CA(3) of the Migration Act, the applicant made representations that it would be in the best interests of his son for the cancellation of his visa to be revoked and that his son’s best interests must be given primary consideration both under s 8(3) of Direction 90 and Art 9 of the United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (CRC). The applicant did not press the application of the CRC on the application for judicial review.

30    The applicant’s representations were supported by a statement from Ms F. Ms F spoke of a “special connection” between Child A and his father, and her belief that it is “vitally important that [Child A] has both a mother and a father who love him unconditionally”. Ms F said it was her plan to complete her Bachelor of Nursing qualification, settle family matters relating to her mother’s condition and return to Melbourne with [Child A].

31    The hearing before the Tribunal took place via video link on 31 August 2021. The applicant appeared from immigration detention and represented himself. It is apparent the applicant had limited assistance from the Refugee & Immigration Legal Centre in Collingwood (Refugee Legal) both prior to the decision of the delegate and prior to the hearing before the Tribunal. Refugee Legal prepared his 50-page Request for Revocation of Visa Cancellation dated 23 December 2020, which was before the delegate, and filed his further statement, dated 13 August 2021, for the purposes of the Tribunal hearing. In that statement, the applicant said, “the lawyers at Refugee Legal have explained the rules that set out how the relevant factors in my case have to be weighed up”. Relevant to the best interests of Child A, the applicant stated, inter alia:

•    he speaks to [Child A] and [Ms F] every day. They are both finding it hard coping without me;

•    [Child A] often cries when they speak;

•    [Child A] is having trouble at school and would likely cope better socially if he was able to spend time with his son;

•    [Ms F] has nearly finished her course in New Zealand and plans to come back to Melbourne if I am given my visa back;

•    how very important getting my visa back will be to my autistic son and his mother;

•    his belief that [Child A] cannot have the best possible future if he is denied a father in his life.

32    As is obvious, at the time of filing his further statement, the applicant remained under the apprehension that the best interests of Child A were relevant to the Tribunal’s consideration of whether or not the cancellation of his visa ought to be revoked.

33    The Minister’s Statement of Facts, Issues and Contentions (SFIC) filed three days later, on 16 August 2021, did not give rise to an inference that Child A’s best interests were wholly irrelevant to the Tribunal’s consideration. In the SFIC, the Minister contended that Primary Consideration 3 – Best interests of minor children in Australia affected by the decision was irrelevant because Child A, being resident in New Zealand, falls outside the ambit of the Consideration. Alternatively, the Minister acknowledged that were Child A able to return to Australia prior to the Tribunal’s decision, Primary Consideration 3 may weigh in favour of the applicant.

34    At the hearing, the Minister’s representative was invited to give a short opening because the Tribunal had noticed “the applicant made mention of not really understanding why his visa was cancelled given the non-refoulement issues he’s [sic] and also his son”. (Transcript P-2, 33-34).

35    During his opening, the Minister’s representative said (Transcript P-4, 11-20):

In relation to primary consideration three, the tribunal is required to make a determination about the best interests of minor children in Australia and the Minister acknowledges that BYMD has a young son, [Child A], who has complex needs, and that he needs to be cared for. However, the Minister’s position is that [Child A] is not an Australian citizen and he’s currently in New Zealand where he’s lived since 13 October 2019. In these circumstances, a consideration of [Child A’s] needs falls outside primary consideration three and, although it could be taken into account by the tribunal as an ‘other’ consideration, it’s not relevant for as assessment of this primary consideration.

36    This portion of the Minister’s opening explained the Minister’s position in relation to certain matters that, on their face, were contrary to the applicant’s apparent understanding of those matters, at least as appeared from the representations and statement before the Tribunal. First, it seems the applicant remained under the misapprehension that his son was an Australian citizen. This is apparent from his representations to the Minister. Second, the applicant seemed to not understand the significance of the wording of Primary Consideration 3 in that it might confine the Tribunal to consideration of the best interests only of children in Australia. This is apparent both from his representations to the Minister and from his further statement.

37    Moreover, regardless of the applicability of Primary Consideration 3 in the present context, the Minister’s opening clearly kept alive the consideration of Child A’s best interests in the context of “Other Considerations”.

38    At the conclusion of the Minister’s opening, which it must be recalled occurred over a video-link, the Tribunal asked the applicant whether he had understood “all of that”, to which the applicant responded “Yes, about 50 per cent of it, yes.” (Transcript P-5, 12-15). The Tribunal’s response was “All right.” (Transcript P-5, 17).

39    A few lines further down, the Tribunal said to the applicant (Transcript P-5, 30-32):

Anything that Mr Booth wants me to accept, and take into account, that goes against you, in fairness he has to ask you about that and give you a chance to give your version.

40    In dealing with the mandatory primary consideration of the best interests of minor children in Australia, the Tribunal found (Reasons at [167]):

Child A is not a minor child in Australia, so I am not required to consider his best interests under this Primary Consideration. I should have regard to his best interests if they are otherwise relevant to whether there is another reason for the revocation of the Applicant’s visa. Having considered the matters mentioned in the previous paragraphs, I do not think Child A’s best interests to be relevant. In particular, the Direction is very much focused on members of the Australian community, for example the protection of the Australian community, the expectations of the Australian community, ties a non-citizen has to members of the Australian community and the impact of a non-revocation decision on victims or immediate family members in the Australian community. Child A does not have a permanent right to reside in the Australian community, he has not been a member of the Australian community in nearly two years and I am not satisfied that he will re-join the Australian community in the foreseeable future. Further, he currently has a strong connection to New Zealand as he is a New Zealand citizen who lives in New Zealand, and his mother and some extended family are there with him.

41    The critical issues or facts on which this conclusion was based can be summarised as:

    Child A is not in Australia so his best interests need not be considered under Primary Consideration 3;

    Child A’s best interests are otherwise not relevant;

    Child A does not have a permanent right to reside in Australia;

    Child A has not been a member of the Australian community in nearly two years;

    Whether Child A will re-join the Australian community in the foreseeable future, and;

    Child A is a New Zealand citizen and has a strong connection to New Zealand.

42    Articulating the requirements of procedural fairness in any given context can be somewhat elusive. In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212, the Chief Justice put it this way at [7]:

Fairness is normative, evaluative, context specific and relative. As such, its assessment is somewhat imprecise in articulation and open to debate. Nevertheless, subject to any clear contrary statutory intention, fairness is an inhering requirement of the exercise of state power: Jarratt v Commissioner of Police for NSW [2005] HCA 50; 224 CLR 44 at 56-57 [26]; and SZRUI at [5].

43    There is, however, nothing elusive about the proposition stated by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 590-591, and approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 162 at [32], that:

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (Emphasis in original.)

44    The question therefore is whether, when looking at the whole of the circumstances surrounding the hearing before the Tribunal, the applicant had “his mind directed to the critical issues or facts on which the decision was likely to turn unless the recognition of the issue was, from the material with which he was provided, an obvious and natural conclusion to draw”: Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451 at [12] per Allsop CJ.

45    Context is important. The delegate took into account the best interests of Child A as a primary consideration and found it was in the best of interests of Child A that the cancellation of the applicant’s visa be revoked (Delegate’s reasons at [57]). The delegate accorded that consideration substantial weight. The finding by the delegate was made despite the fact that, at the time of the decision, Child A was not a “minor child in Australia” within the terms of s 8(3) of Direction 90. The delegate apparently accepted that Ms F did indeed intend to return to Melbourne and would support the applicant in re-establishing himself in Child A’s life (Delegate’s reasons at [56]-[57]). It also seems likely that the delegate accepted implicitly the erroneous representation made on the applicant’s behalf that Child A was an Australian citizen, although no mention of Child A’s citizenship status appears in the Delegate’s reasons.

46    Before the Tribunal, the applicant was cross-examined by the Minister’s representative about whether Ms F and Child A planned to return to Australia (Transcript P-48, 13-15). The applicant gave evidence that Ms F was “definitely coming back to Melbourne” and that he would live with Ms F and Child A in Melbourne” (Transcript P-47 40-47). Ms F gave evidence that she would return to Melbourne at some point, “when the borders open up and when it’s safe to do so (Transcript P-79 6-7). The Tribunal was not satisfied Ms F intends to return to Australia with Child A in the immediate future, and that it was a matter of speculation whether she would return at a later date (Reasons at [166]). The Tribunal found Ms F gave false evidence to the Tribunal to assist the applicant’s case and that it could not rely on her evidence (Reasons at [82]).

47    Although the applicant was asked questions about Ms F’s plans to return to Australia, he was not given the opportunity to comment on the adverse conclusion the Tribunal was likely to draw after hearing Ms F’s testimony. This contrasts with the approach taken by the Tribunal to re-open the applicant’s evidence to permit him an opportunity to comment on Ms F’s evidence about his alleged controlling behaviour (Transcript P-86 35-39). It is inherently unlikely that an unrepresented non-citizen in immigration detention would have appreciated from the line of cross-examination that an issue before the Tribunal was a consideration of the best interests of Child A should that child remain in New Zealand indefinitely. At no point was the applicant asked any questions by the Minister’s representative or the Tribunal about the consequences of Child A remaining in New Zealand.

48    Further, when asked by the Tribunal whether there were any minor children in Australia who would be affected by the decision, the applicant answered, “My son” (Transcript P-65, 15). This answer was not correct. His son was not in Australia. His answer revealed a continued misunderstanding about the textual meaning of Primary Consideration 3, a matter that was not squarely raised with the applicant. Alternatively, it may have been attributable to his belief that, contrary to the conclusion the Tribunal had reached about Ms F’s evidence, Child A was likely to return to Australia in the near future. This was not raised with the applicant.

49    It is tolerably clear the applicant’s mind was not directed to the critical issue on which the Tribunal focussed, nor to the facts necessary for the Tribunal to reach its ultimate conclusion: Sneddon v Minister for Justice [2014] FCAFC 156; 230 FCR 82 at [175] per Middleton and Wigney JJ cited with approval in Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; 265 FCR 177 at [38] per Flick, Griffiths and Derrington JJ. Further, the applicant was not alerted to the Tribunal’s assessment of Ms F’s credibility which led to the Tribunal’s finding that Child A was unlikely to return to Australia in the foreseeable future, contrary to the finding of the delegate: Sneddon at [176]; Stowers at [38].

50    Consequently, the review was conducted on the basis that Child A would return to Australia was not in issue before the Tribunal. However, the Tribunal proceeded on a different basis to that of the delegate, namely, that Child A would remain in New Zealand. The applicant was not alerted to this and was not given the opportunity to comment on how the best interests of Child A might be affected even if Child A remained in New Zealand. The Tribunal should have told the applicant it was considering not taking into account the best interests of Child A on this basis: SZBEL at [35]; AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317 at [10] per Tracey and Mortimer JJ.

51    Instead, very little care appears to have been taken to ensure the applicant understood the issues relevant to the Tribunal’s review. The applicant’s statement that he had understood “about 50 per cent” of the Minister’s opening, which had framed the issue relating to Child A, ought to have alerted the Tribunal to the possibility that the applicant simply did not understand the critical issues (Transcript P-5 15).

52    The Minister submitted the onus was on the applicant to persuade the Tribunal that there was another reason why the cancellation of his visa should be revoked and that this was clear from the terms of Direction 90, a copy of which had been provided to the applicant. The Minister contended that Direction 90 makes clear everything not specifically mentioned in the Direction, relevantly in this case, the best interests of Child A were he to remain in New Zealand would not be considered unless the applicant made a specific representation as to the relevance of that issue.

53    This argument is rejected. First, in circumstances where the delegate had proceeded on the basis that Child A fell within the scope of Primary Consideration 3, it is unrealistic to expect that an unrepresented non-citizen in immigration detention could discern from the text of s 8.3 of Direction 90 that the Tribunal would be concerned only with the best interests of a child who was in Australia at the relevant time. Although the heading refers to “children in Australia” none of the remaining sub-sections are expressed to apply only to children in Australia. In such circumstances, it was incumbent on the Tribunal to tell the applicant about the fact of Child A’s remaining in New Zealand to be relevant to an assessment of that child’s best interests as an “other consideration” relevant to the Tribunal’s decision about whether to revoke the cancellation of the applicant’s visa: NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 at [156] per Buchanan J; Allsop CJ and Katzmann J agreeing at [3].

54    As was said by Allsop CJ and Katzmann J in NBNB at [4], “At the root of any conclusion about whether natural justice or procedural fairness has been afforded is an assessment of fairness…the assessment is one of ‘practical injustice’” (citations omitted). The applicant was not given the opportunity of ascertaining the relevant issue before the Tribunal as concerned the best interests of Child A. He had no opportunity of being heard on that issue. This was procedurally unfair.

55    In the circumstances, there is no reason to suppose the applicant could not have put meaningful representations to the Tribunal about it being in the best interests of Child A for the applicant to remain in Australia, as opposed to being removed to Ethiopia, even if Child A remained in New Zealand, and that such representations may have been significant in the Tribunal’s ultimate weighing of the various considerations. Indeed, in closing submissions, the Minister’s representative said in respect of the extent of impediments if removed, “And it would be extremely difficult for him to be at such a distance from his son [Child A] and from [Ms F]” (Transcript P-93 4-6). Had the applicant’s attention been drawn to the Tribunal’s view that Child A’s best interests were not going to be taken into account at all, he may have wished to comment.

56    Accordingly Ground 1 must be upheld.

57    That being so, it is strictly unnecessary to consider the further grounds of review. Given they were fully argued, it is appropriate that I deal with them, albeit rather more briefly.

Was there a failure to consider representations relating to international law?

58    By Ground 2, the applicant contends the Tribunal constructively failed to exercise jurisdiction by failing to consider his representations about the CRC and the International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession on 16 December 1966, GA Res 2200A (XXI) (entry into force 23 March 1976) (ICCPR). Those representations were made in the submission by Refugee Legal dated 23 December 2020. Relevantly, those representations relied particularly on Art 9 of the CRC and Art 17 of the ICCPR, which states that all people shall have the right to be “free from arbitrary or unlawful interference with their family”.

59    Before this Court, the applicant conceded neither the CRC nor the ICCPR was relevantly applicable in the present context but nevertheless contends the Tribunal ought to have taken into account the importance that international law places on the maintenance of the family unit. Against that background, it is said that such a representation clearly arose from the material, being the provisions of the CRC and the ICCPR. The applicant contends the absence of any reference to the CRC or the ICCPR gives rise to the inference that the Tribunal failed to give any regard to the recognition at international law of the importance of maintaining a child’s personal relations and direct contact with both parents, which must not be arbitrarily interfered with, and failed to consider the express representation that deporting the applicant “would make it near impossible for [Child A] to continue to have access and communication with him”.

60    The principles relevant to a complaint of failing to consider an applicant’s representations are not in dispute. The High Court has made clear there is “no doubt that a decision-maker must read, identify, understand and evaluate the representations”: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [24]. Equally, a decision-maker “is not obliged ‘to make actual factual findings of fact as an adjudication of all material claims’ made by a former visa holder”: Plaintiff M1/2021 at [24]. Further, the High Court has confirmed that a Tribunal is only required to consider claims where they are either the subject of a substantial and clearly articulated argument, relying on established facts, or where they clearly emerge from the materials: Plaintiff M1/2021 at [25].

61    These principles have been the subject of several Full Court decisions, including in Guclukol v Minister for Home Affairs [2020] FCAFC148; 279 FCR 611 where the Full Court said, at [50]:

There is nothing … which suggests that a finding needs to be made in relation to each submission, argument or claim made by a person who has made representations under s 501CA(3) and it is far from apparent that the decision in Omar sought to depart from it. Indeed, that seems unlikely. The point there articulated was not that there existed any superadded duty on a Minister to make explicit findings about each claim, merely that, in some circumstances, the absence of a specific finding will support the conclusion that the claim was not considered. The nature of such circumstances was not articulated, but the reasons in Omar suggest (particularly at 586 [40]) that they include where the claim in question is an objectively significant or pivotal claim in relation to the state of mind to be formed or the power to be exercised. (emphasis added.)

62    As has been conceded by the applicant, neither Art 9 of the CRC nor Art 17 of the ICCPR have application in the present circumstances. It is appropriate to infer that the Tribunal did not refer to the Conventions because it concluded they were inapplicable and therefore immaterial. In that context, the import that international law places on family separation in circumstances to which the Conventions do apply cannot be said to clearly arise on the materials in this case.

63    The Tribunal cannot be criticised for failing to specifically refer to a claim that altogether lacks substance: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 6; 96 ALJR 13 at [15].

64    Ground 2 must fail.

Did the Tribunal fail to consider representations as to the weight of community expectations?

65    By Ground 3, the applicant contends the Tribunal constructively failed to exercise jurisdiction by failing to consider claims about the reasons why the expectations of the Australian community should be given less weight in this case. The applicant submits the Tribunal’s decision evidences no consideration of the matters raised by the applicant as being relevant to the weight to give to the expectations of the Australian community.

66    The Minister contends the representations were not directed at the weight to be accorded in the present case. Rather, they were impermissibly directed at the content of such expectations.

67    The Tribunal noted s 8.4(4) of Direction 90 provides guidance on how the expectations of the Australian community are to be determined. In particular, “decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case” (Reasons at [175]). The Tribunal observed s 8.4(4) is consistent with the Full Court’s decision in FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 (Reasons at [176]).

68    The Tribunal concluded, at [178]:

The applicant repeatedly breached the trust of the Australian community. The nature of his offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration 4 weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.

69    The applicant’s representations asserted, inter alia:

…the AAT has previously held that, for present purposes, the “Australian community” in this context would expect “that the Act would be administered in a fair and humane way” and that its expectations should be viewed “from the point of view of reasonable members of the community who hold middle-of-the-road views as to migration issues and who do not hold extreme views one way or another”

An important assumption here is that expectations of the “Australian community” would be informed by, and based upon, all of the relevant facts about the individual. In this regard, the assessment of the expectations of the Australian community requires a decision-maker to balance the criminal conduct of the Applicant, and the other circumstances, namely:

[BYMD’s] prolonged presence in Australia and strong connection to the Australian community;

[BYMD’s] family ties to the Australian community;

The devastating impact on [BYMD’s] son should he be detained indefinitely or removed from Australia, in contravention of Australia’s international obligations;

The circumstances of [BYMD’s] offending, which was a consequence of his misdiagnosed mental health issues and substance abuse; and

The consequence of either returning [BYMD’s] to a country in which he faces the prospect of serious harm or, alternatively, indefinite detention.

In this regard, we submit that the Australian community would be compassionate and acknowledge the difficult circumstances in which [the applicant] has grown up has contributed to his offending behaviour. We further submit that those circumstances would be taken into account when considering whether a person should be given a second chance.

70    A fair reading of the representations reveals they were in reality directed to the content of the expectations of the Australian community, rather to the weight to be accorded to those expectations. So much is made clear by the final sentence dealing with the topic, “…the totality of all of [the applicant’s] circumstances ought to weigh heavily on any consideration of the expectations of the Australian community”. For that reason alone, Ground 3 cannot succeed.

71    In any event, it cannot be contended, having regard to the Reasons as a whole, that the Tribunal did not take into account the matters raised by the applicant as being relevant to the weight to give to the expectations of the Australian community.

72    As to the specific representations made by the applicant:    

1.    Prolonged presence and strong connection: The Tribunal considered this under its consideration of the expectations of the Australian community. The Tribunal had regard to the fact that the applicant moved to Australia when he was 18 and that he was now 39 years old, and that he had some “limited gainful employment and there is no evidence that he has done any voluntary work or otherwise contributed to the Australian community” (Reasons at [177]).

2.    Family ties to the Australian community: The Tribunal did not expressly refer to this representation when allocating weight to Primary Consideration 4. It can be reasonably inferred that this is because the Tribunal did not consider the applicant’s family ties to be relevant when considering the weight to give to the expectations of the Australian community. The Tribunal referred to the fact there was no evidence of support from the applicant’s relatives (Reasons at [269]) and was not satisfied that the applicant had significant social connections in the Australian community (Reasons at [271]). The Tribunal found expressly that, “despite having lived in the wider Australian community for some 16 years, the Applicant has minimal ties to the Australian community” (Reasons at [272]).

3.    Devastating impact on the applicant’s son: The applicant has no immediate family in Australia (Reasons at [268]). In light of the Tribunal’s finding that it was not satisfied that Ms F intends to return to Australia with Child A in the immediate future, and that it was a matter of speculation whether Ms F would return at a later date, this representation was implicitly rejected (Reasons at [166]).

4.    The circumstances of the applicant’s offending, including the difficult circumstances in which he grew up, his misdiagnosed mental health issues, and his substance abuse: The Tribunal addressed this representation when considering the weight to be given to the expectations of the Australian community (Reasons at [177]). It did so having previously found the applicant lacks insight into the seriousness of his conduct (Reasons at [132]). The Tribunal had previously considered the applicant’s pleas in mitigation when considering the likelihood of the applicant’s offending again, saying (Reasons at [131]):

In his revocation request the Applicant claimed that he is not criminally minded, but he made “a huge mistake because of my drug use and mental issues”. He said in the future he would make different choices to better affect him and his family. However, the Applicant has a long and sustained history of substance abuse and offending. What is more, he committed the sexual assault in 202 after he had spent more than three years in gaol for sexual offences, had been warned that further offending could result in his visa being cancelled, and blamed his previous offending was related to substance abuse and poor mental health, yet all of that did not stop him from abusing substances again.

5.    The consequences of returning the applicant to a country in which he faces the prospect of serious harm, or alternatively, indefinite detention: The Tribunal, correctly with respect, took account of the direction to it in s 8.4(4) of Direction 90 that it proceed on the basis of the Government’s views as articulated in the previous sections without independently assessing the community’s expectations in the particular case. The Tribunal’s consideration of the expectations of the Australian community was informed by this section. The Tribunal did consider the consequences of returning the applicant to Ethiopia and the prospect of indefinite detention when dealing with the Other Considerations articulated by s 9 of Direction 90. The Tribunal did not accept that the applicant engaged Australia’s non-refoulement obligations (Reasons at [251]), and as such, it did not conclude the applicant faced a risk of serious harm. As a result, the applicant would also not face indefinite detention, but the Tribunal did allocate weight to the “loss of liberty while he remains in detention” (Reasons at [258]).

73    No jurisdictional error having been established, Ground 3 cannot succeed.

Should the Tribunal have given the applicant opportunity to comment on the possibility of return to Addis Ababa?

74    By Ground 4, the applicant contends the Tribunal failed to afford the applicant procedural fairness in failing to put him on notice that the question of relocation to Addis Ababa was an issue on review. The question of the place of his return within Ethiopia was relevant both to the applicant’s claim he was owed non-refoulement obligations and to his representations as to the extent of the impediments he might face if returned to Ethiopia. The Tribunal combined both claims for the purposes of allocating weight to these two “Other Considerations” (Reasons at [252]).

75    The applicant claimed he faced a risk of harm in Ethiopia for two reasons:

76    In his representations, the applicant stated he grew up on a farm located in the town of Gimbi. The representations referred to academic material about the stigma against people with mental illness in that town in particular and the limited mental health care available in Ethiopia more generally.

77    In oral evidence, the applicant repeated that his birth place was Gimbi and that he had always lived in Gimbi (Transcript P-22 43). The applicant said he had lived in Addis Ababa for about two months when he was en route to Kenya (Transcript P-24 1-6). The applicant was not asked any question about whether he would return to Gimbi, Addis Ababa, or indeed any other part of Ethiopia should he be deported.

78    Relevant to the applicant’s claim to fear inter-ethnic and social violence, the Tribunal said (Reasons at [221]-[222]):

221.    The Applicant did not claim that he would return to his home town if removed to Ethiopia. Nor did he claim any impediment to living in Addis Ababa. The international airport is in Addis Ababa – the Applicant will likely arrive there if removed to Australia. The DFAT report indicates the following about Addis Ababa:

•    as Ethiopia’s administrative and commercial capital, it attracts migrants from across the country in search of economic opportunities and has a multi-ethnic character;

•    while the security situation has deteriorated in parts of Ethiopia since 2018, including due to inter-ethnic clashes, Addis Ababa has largely been immune and is particularly stable;

•    different ethnic groups have a history of co-existence in Addis Ababa, and discrimination on ethnic grounds is not common there. One source described ethnicity as a non-factor in Addis Ababa, and most people consider themselves from Addis Ababa as opposed to a particular ethnic group; and

•    violence based on ethnicity is not common in Addis Ababa, but it is a growing concern in regional states.

222.    If the Applicant were to settle in Addis Ababa I would not consider there to be more that a remote chance that he would be the victim of societal violence or that he would be targeted because of his ethnicity or any imputed political opinion.

79    The Tribunal dealt with applicant’s claims related to mental illness at [231]-[232], relevantly:

231.     The country information put forward on the Applicant’s behalf was rather dated and/or it related to mental illness in rural areas, so I prefer the more recent DFAT report. According to it:

…

•    mental health services are available, particularly in Addis Ababa and other major urban areas, but the average person is often unaware of their existence; (emphasis in the original.)

•    mental health services are scarce in rural areas, where most of the population lives but where health infrastructure is limited;

•    private mental health clinics operate in Addis Ababa although these are financially prohibitive for the average person;

•    there is one dedicated psychiatric hospital in Addis Ababa;

…

232.    It seems possible that the Applicant could function well in Ethiopia without medication for a time but I am not confident he would be able to sustain that in the long term. There is a real possibility that the Applicant will need counselling support and/or medication. He is sufficiently educated about his condition and there are some mental health services available in Addis Ababa…

80    It is clear from these findings that a critical issue on review was whether the applicant would return to Addis Ababa, or to some other place – possibly his home town of Gimbi – were he to be returned to Ethiopia. So much can be inferred from the first sentence of [221] where the Tribunal adverts to no claim having been made that the applicant would return to Gimbi. The absence of such a claim is not surprising. The applicant did not know the precise place within Ethiopia was an issue before the Tribunal. The applicant’s mind was not directed to this issue Sneddon at [175]; Stowers at [38]. He was asked no questions about it. That was procedurally unfair.

81    In the circumstances, there is no reason to suppose the applicant could not have put meaningful representations to the Tribunal about the relative differences between the risks of inter-ethnic and societal violence, and the approach to mental health, as between Gimbi and Addis Ababa. The Minister did not contest that any such representations could have been material. Having been denied any such opportunity, Ground 4 must succeed.

Should the Tribunal have given the applicant opportunity to comment on country information?

82    By Ground 5, the applicant contends the Tribunal failed to afford him procedural fairness by failing to give the applicant an opportunity to comment on country information – namely a report entitled “Capacity of health facilities for diagnosis and treatment of HIV/AIDS in Ethiopia” (Amare Deribew et al. ‘Capacity of health facilities for diagnosis and treatment of HIV/AIDS in Ethiopia’ (2018) 18 BMC Health Services Research 535).

83    The Minister does not dispute the Tribunal obtained the report for itself, nor that the applicant was not given an opportunity to comment on the report. The Minister contends the report was not relevantly adverse to the applicant – it merely updated and confirmed the Tribunal’s interpretation of the country information that had been provided by the applicant.

84    The information provided by the applicant was included in the representations made on his behalf by Refugee Legal. It included a reference Asfaw Bikilla et al, ‘Cost Estimates of HIV Care and Treatment with and without Anti-Retroviral Therapy at Arba Minch Hospital in Southern Ethiopia’ (2009) 7 Cost Effectiveness and Resource Allocation 6. Immediately after referring to the cost profile for HIV care in Ethiopia described by Bikilla, Refugee Legal submitted, “Given that [the applicant] would have no family or other means of support in Ethiopia, he would not be able to pay for that treatment which is available”.

85    The Tribunal noted that the article was dated in 2009 and “did not assert that [ART costs] were borne by patients”. It referred to the article as being the result of a study “To estimate the average per person per year (PPY) cost of care for HIV patients with and without anti-retroviral therapy (ART) in a district hospital” (Reasons at [238]). The Tribunal said that it understood the article “to concern the cost of providing ART to a patient rather than a cost to patients” (Reasons at [239]). It is tolerably clear the Tribunal understood the thrust of the article to be that HIV patients did not pay for their own medication although no express finding to that effect was made.

86    Nevertheless, the Tribunal indicated its preference for the more recent country information contained in the Deribew report, on the basis of which the Tribunal was satisfied that Ethiopia provides free HIV treatment to its citizens (Reasons at [240]). The Tribunal concluded, at [241]:

There are health facilities in Addis Ababa and other parts of the country. I am satisfied that the Applicant could likely access adequate HIV medication and that if he could not, it would not be the result of intentional action against him.

87    Contrary to the Minister’s contention, the Deribew report cannot be construed as “confirmatory” or “updating” of findings already made by the Tribunal. No clear finding had been made on the basis of the Bikilla article as to the cost of HIV treatment to patients. The Deribew report was credible, relevant and significant to the Tribunal’s decision, not least because it relied on it. It was also adverse to the applicant’s representation that he would not be able to pay for treatment in Ethiopia. He was entitled to have the new material put to him for comment: Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; 202 FCR 417 at [79]; BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [164] per Bromberg J. The failure to do so was procedurally unfair.

88    Ground 5 must succeed.

Did the Tribunal fail to consider the applicant’s representations as to prolonged or indefinite detention?

89    By Ground 6, the applicant submits the Tribunal constructively failed to exercise jurisdiction by failing to consider the applicant’s representations to the effect that he would face the prospect of indefinite detention.

90    There is little substance to this ground. The Tribunal was clearly conscious of the prospect the applicant might face a period of indeterminate detention, having referred to the uncertainty as to whether Ethiopia accepted “involuntary returnees” and the need for the Minister to explore possible solutions (Reasons at [256]). The Tribunal also considered the applicant’s physical and mental health while in detention. In reaching its conclusion that the considerations of non-refoulement obligations and the extent of impediments combined weighed heavily in favour revocation (Reasons at [259]), the Tribunal allocated “some weight in favour of revocation because of the loss of his liberty while he remains in detention and the uncertainty that is associated with prolonged or indeterminate detention.” (Reasons at [258]).

91    No error has been established. Ground 6 fails.

Disposition

92    For these reasons, I would allow the application on Grounds 1, 4, and 5. Grounds 2, 3, and 6 are dismissed. Given the applicant has succeeded in obtaining the relief sought, there is no reason why costs should not follow the event. It follows that orders should be made to set aside decision of the Tribunal made on 21 September 2021 and to remit the matter to the Tribunal, differently constituted, for determination in accordance with law.

Associate:

Dated:    15 August 2022