Federal Court of Australia

YFMG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1342

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant do pay the first respondent's costs of the application on a lump sum basis to be assessed by a registrar if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant arrived in Australia on a humanitarian visa in 2017. A little over two years later, he was sentenced to terms of imprisonment for assault occasioning actual bodily harm. Those events resulted in the cancellation of his visa under s 501(3A) of the Migration Act 1958 (Cth). He sought the revocation of the visa cancellation but was unsuccessful. In August 2021, he sought a protection visa. His application was refused by a delegate of the Minister on the basis that he failed to meet the criterion that he was not a person whom the Minister considers on reasonable grounds 'is a danger to the Australian community': see s 36(1C)(b). The applicant then sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the decision of the delegate to refuse his application for a protection visa. He now seeks judicial review on the basis of alleged jurisdictional error by the Tribunal.

2    By his further amended application, the applicant alleges that the Tribunal fell into jurisdictional error by finding that his mental health was a factor that weighed against a decision being made in his favour when the adoption of that approach was 'impermissible and/or prejudicial and/or unfair'. Alternatively, he alleges that there was jurisdictional error in the way in which the Tribunal dealt with his mental health when it was required to be treated as a mitigating circumstance and therefore as a matter that could only count in his favour.

Outcome

3    For the following reasons, the applicant's contentions to the effect that his mental health was a factor that the Tribunal ought to have counted only in his favour, or that it should not have counted it against him without first indicating that it may do so are misconceived and must be rejected. The allegations of jurisdictional error proceed upon a misconception of the nature of the task that the Tribunal was required to undertake and jurisdictional error has not been established.

The Tribunal's articulation of its task

4    The Tribunal correctly articulated the issues it was required to determine as being (a) whether the applicant had been convicted by final judgment of a particularly serious crime; and (b) whether he is a danger to the Australian community. No issue arises as to the Tribunal's conclusion concerning the nature of the applicant's convictions. As to whether he is a danger, the Tribunal referred to the Refugee Law Guidelines: Procedural Instruction as reissued by the Minister's department on 27 November 2022. The Guidelines included the following statement (quoted by the Tribunal in the present case at para 27 of its reasons):

Since the assessment of danger to the community is a consideration separate from the commission of a particularly serious crime, there is no 'category' of offending that will automatically result in a person being found to be a danger to the community. The assessment whether an individual is a danger to the community is one of 'fact and degree' to be 'determined in the circumstances of a particular case['].

In WKCG and Minister for Immigration and Citizenship (WKCG) [[2009] AATA 512], the Tribunal listed factors that assist in assessing whether a person is a danger to a member or members of the community:

Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed.

Those relevant considerations were described as pertinent by Logan J in DOB18 v Minister for Home Affairs [[2019] FCAFC 63].

In forming a view of the risk of recidivism, re-offending or relapse, decision makers can consider the factors listed in WKCG, such as mitigating and aggravating circumstances during commission of the offences and the totality of the applicant's criminal record. …

5    The quotation from WKCG and Minister for Immigration and Citizenship [2009] AATA 512 was repeated at para 63 of the Tribunal's reasons being the point where the Tribunal came to consider whether the applicant is a danger to the Australian community.

The nature of the applicant's case before this Court

6    The submissions for the applicant on the present judicial review application focussed upon the identification in the quoted passage from WKCG of 'mitigating … circumstances' as a relevant consideration that assists in assessing whether a person is a danger to the community. The submissions sought to elevate the reference by the Tribunal to the use of that terminology in WKCG to some form of acceptance or recognition by the Tribunal that mitigating circumstances were required to be brought to account in a way that was favourable to the applicant in deciding whether the applicant is a danger to the Australian community.

7    The applicant's mental health was said to be one such mitigating circumstance.

8    As has been explained, the grounds of review allege error in the way the Tribunal dealt with the applicant's mental health issues when deciding that the applicant is a danger to the Australian community. Though put in different ways, the underlying premise to the applicant's case was that the Tribunal should have treated the applicant's mental health as a matter that weighed in his favour in some way and its failure to do so involved jurisdictional error.

The current state of the authorities concerning the statutory conception 'danger to the Australian community'

9    Since the Guidelines were published (and shortly after the Tribunal published its reasons), the decision in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104 was delivered. In that appeal, Jackson J at [82]-[85] (Rares J agreeing), explained the current state of the law concerning what is meant by the words 'is a danger to the Australian community' as used to state the criterion in s 36(1C)(b) that must be met by an applicant for a protection visa. Relevantly for present purposes, his Honour's conclusions may be summarised as follows:

(1)    the concept of danger combines an assessment of how probable harm is with an assessment of the seriousness or severity of the consequence if the probability eventuates;

(2)    as to the object of the danger it is the community as a whole and/or any person or persons who are part of it;

(3)    the decision maker may consider the particularly serious crime of which the visa applicant has been convicted and the risk that he or she will offend in that way in the future; and

(4)    the list of matters in WKCG remains useful provided it is not approached as a 'test' or a mechanical checklist but as a guide.

10    Therefore, the statutory concept of danger to the community is not concerned with any evaluation of what might be fair or reasonable to the visa applicant. It does not require any assessment as to whether there is some attribute of the applicant or circumstance pertaining to the applicant which might be weighed 'in favour' of the applicant as part of the balancing of relevant, possibly competing, considerations. Rather, it is concerned with the likelihood of harm and the seriousness of the harm if it was to eventuate. It is concerned with danger to the community as a whole and those who form part of the community.

The Tribunal's reasons

11    It is not necessary to reproduce the relevant parts of the Tribunal's reasons. They are publicly available: YFMG and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1699. It is sufficient to observe that the Tribunal reasoned by the following steps in concluding that the applicant is a danger to the Australian community (see paras 113-115):

(1)    the Tribunal considered the factors that lend support to the conclusion that the applicant is not a danger, including the fact that he has been properly diagnosed with bipolar disorder in prison, is taking medication and says that he will see a doctor and be compliant with his medication if released;

(2)    the Tribunal considered the factors that support a finding that the applicant is a danger, including that he has significant and longstanding mental health issues, has stopped taking his medication in the past and lacks insight into his mental health; and

(3)    the Tribunal, 'after an evaluation of the factors in WKCG' found that there are reasonable grounds to conclude that the applicant is a danger to the Australian community.

Review grounds

12    Taking account of the way in which the case for the applicant was articulated in written submissions and explained orally, there were four ways in which the Tribunal's approach to the applicant's mental health were said to be in error. Each is addressed below.

Ground (a): Alleged error in finding mental health to be a factor against a decision in favour of applicant

13    The applicant submitted, in effect, that the Tribunal was required to weigh the applicant's mental health as a mitigating factor that supported his claim that he satisfied the criterion in s 36(1C)(b) concerning danger to the Australian community and could not consider it as a factor that 'weighed against him'.

14    The Tribunal did not reason that the applicant's mental health condition, particularly his diagnosed bipolar disorder, of itself, was a factor against a decision that the criterion concerning danger in s 36(1C)(b) was met. Rather, it reasoned that his mental health condition together with his attitude to treatment and taking medication was concerning and that was a matter that supported a finding that he is a danger to the Australian community. There was no error in the Tribunal reasoning that the applicant's mental health condition combined with his attitude to treatment was a matter that was relevant to an evaluation as to whether he is a danger and was a matter that supported a conclusion that he is a danger.

15    Reasoning as to whether material concerning the mental health of an applicant for a protection visa supports a conclusion that the criterion concerning danger in s 36(1C)(b) may be expected to take account of the particular circumstances of each case. Therefore, the significance that may be afforded such matters in determining whether the criterion is met will depend very much on those particular circumstances. The reasoning in SLGS is to the effect that all the facts and circumstances of the case that bear upon whether harm will eventuate and if it does how serious it will be are to be brought to account. The state of an applicant's mental health now and into the future cannot be said to be a matter which is only to be counted in that evaluation to the extent that it favours the applicant.

16    The contention to the effect that material concerning a person's mental health may only count in favour of a visa applicant, that is as a matter supporting a conclusion that the criterion is met, must be rejected.

Ground (b): Alleged error in misapplying WKCG

17    The applicant alleged that that the reference to mitigating circumstance in WKCG required the Tribunal to treat the applicant's mental health condition as a factor that weighs in favour of the applicant when it comes to the criterion in s 36(1C)(b).

18    For reasons that have been given, if WKCG indeed operated in that way then it was in error as to its description of the nature of the statutory task. As was conceded in the course of oral argument, a failure to conform with WKCG as to an aspect where conformance with the reasons in WKCG would mean that the Tribunal failed to undertake its statutory task would not be jurisdictional error. That concession was properly made. It can be no error for the Tribunal to fail to conform with a requirement that was contrary to law.

19    The Tribunal was required to make its decision according to law. When it comes to the criterion in s 36(1C)(b), that law is as stated in SLGS. It would be contrary to SLGS to treat material concerning the mental health of an applicant as material that could only 'mitigate' the position of the applicant in the sense that it could only count as a reason why an applicant for a protection visa is not a danger to the Australian community. It may be accepted that the Tribunal did not treat the material concerning the applicant's mental health in that way. However, to do so was not an error. On the contrary, it was an approach that conformed with the law as to what was meant by the criterion in s 36(1C)(b).

Ground (c): Alleged denial of procedural fairness

20    As presented orally, the principal case for the applicant was an alleged denial of procedural fairness. It was said to have arisen because of the Tribunal's approach to the material concerning the applicant's mental health. In particular, it was said that the Tribunal proceeded on the basis that it was the approach in WKCG that was to be followed (being an approach which the applicant claimed required mental health issues to be treated only as matters that may 'mitigate'). On that basis it was said that the Tribunal should have given the applicant an opportunity to respond to the approach whereby his mental health was to be used against a decision in his favour.

21    It can be seen that the claim of procedural unfairness presumed that the Tribunal treated WKCG as requiring material concerning the mental health of an applicant to only be counted favourably to the applicant; that is to say, as only being able to support a conclusion that the applicant was not a danger to the Australian community. It also presumed that the Tribunal somehow indicated to the applicant that it was proceeding in that manner.

22    The applicant pointed to no aspect of the way in which the proceedings were conducted before the Tribunal which might have suggested to the applicant that the Tribunal would only use the material concerning his mental health in his favour and would not use any aspect of that material as part of the reasoning why the applicant is a danger to the Australian community.

23    For the Minister it was submitted that it was apparent before the Tribunal that there was an issue as to whether the applicant's attitude to treatment for his medical condition supported the conclusion that he is a danger to the community because the delegate had considered aspects of the applicant's mental health. In particular it was said that in the reasons of the delegate (whose decision was under review in the Tribunal) reference had been made to non-compliance by the applicant with his medication and the fact that community supports had not prevented him from being non-compliant with his medication or offending and that he had no understanding of his medical conditions. These were all expressed by the delegate to be reasons why the applicant is a danger to the Australian community. Further, it was submitted by the Minister that, before the Tribunal, contentions to similar effect had been put as matters that weighed against the applicant in the assessment as to whether he is a danger to the community. These matters were not disputed in submissions for the applicant on the present application.

24    Rather, the case for the applicant before this Court relied solely on the reasons given by the Tribunal. In effect, the submission was along the following lines:

(1)    the Tribunal, in its reasons, quoted from WKCG and having done so it must be taken to have accepted that mitigating circumstances were relevant;

(2)    mitigating circumstances are those which count in favour of the applicant;

(3)    matters concerning the applicant's mental health are mitigating circumstances;

(4)    the Tribunal, in its reasons, counted material as to the applicant's mental health against the applicant;

(5)    therefore, the Tribunal did not follow WKCG in its reasons; and

(6)    the Tribunal could not reason in that way without giving the applicant an opportunity to submit that WKCG meant that the applicant's mental health could only count in favour of the applicant because to do so would be procedurally unfair.

25    There are many problems with the logic of this reasoning. Amongst them are the following.

26    First and foremost, as has been explained, it has not been shown that the Tribunal conducted the proceedings on the basis that material as to the applicant's mental health could only count in the applicant's favour as some form of mitigation (or that WKCG or the Guidelines required such an approach). To the extent that the applicant's complaint is that the Tribunal did not give effect to the construction of WKCG for which he contends, that complaint is the subject of grounds (a) and (b) and has been rejected.

27    Second, the Tribunal did not at any point in its reasons articulate the view that WKCG required an approach whereby material that might be viewed as concerning mitigating circumstances could only count in the applicant's favour. The view that WKCG required such an approach is a view that is advanced by way of submission for the applicant without identifying in the reasons where it is to be found. Taking account of the Tribunal's reasons as a whole it does not appear to be a view that the Tribunal adopted. The oral submissions for the applicant placed considerable emphasis upon the following statement at para 94 of the Tribunal's reasons as demonstrating its error:

The Applicant's mental health issues are, on the one hand, mitigating in terms of his criminal responsibility but, as I will explain in the next section, are of concern with respect to his risk of reoffending, particularly given that the Applicant has ceased taking his medication in the past and becomes unstable when unmedicated.

However, the above statement is against the applicant. It shows that the Tribunal did not adopt the construction of WKCG for which he contends.

28    Third, as has been explained, if the Tribunal had adopted the approach for which the applicant contends then it would have been in error. There could be no unfairness in a procedure which meant that the Tribunal failed to address a contention that was legally wrong. In order to demonstrate procedural unfairness there must be shown to be some demonstrated practical unfairness in the process leading to the making of the decision: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [34] (Gleeson CJ).

29    Finally, this was not a case where there was said to be procedural unfairness because the Tribunal, in its reasons, failed to deal with a contention advanced by the applicant. Indeed, it was not suggested that the applicant had advanced to the Tribunal the view of WKCG that it relies upon before this Court. Rather, the complaint was that it was procedurally unfair for the Tribunal to have referred to WKCG in its reasons and then proceed to treat matters relating to the applicant's mental health as matters that count against him in the sense that they were matters that supported the conclusion that he is a danger to the Australian community. In substance that is a complaint about the reasoning process not a complaint about the fairness of the Tribunal's procedure. For the reasons that have been given it is a complaint without merit.

Ground (d): Alleged failure by the Tribunal to make a finding whether the material concerning the applicant's mental health weighed in his favour

30    The final ground presumes that the Tribunal was bound to give effect to the view of WKCG for which the applicant contends. In effect, it is submitted that as the material concerning mental health could only count in his favour the Tribunal was required to make a decision as to whether it did so count that material. For reasons that have been given, there was no error in the Tribunal approaching its reasoning in the way in which it did. Indeed, it would have been in error to approach matters in the manner the applicant contends it should.

Orders and costs

31    It follows that none of the grounds have been made out and the application must be dismissed. The applicant accepted that costs must follow the event. There should be orders accordingly.

Associate:

Dated:    6 November 2023