Federal Court of Australia

Nkani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1410

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the period in which the Applicant may apply for review of the decision of the Second Respondent made on 10 May 2022 is extended to 13 October 2022.

2.    The Applicant’s application for review of the decision of the Second Respondent made on 10 May 2022 is dismissed.

3.    The Applicant pay the First Respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    The applicant (Mr Nkani) is a citizen of Zimbabwe currently detained at Yongah Hill Immigration Detention Centre.

2    Mr Nkani arrived in Australia in January 2006, aged 13. Subsequently, Mr Nkani was granted a Class BW Subclass 858 Employer Nomination Visa under the Migration Act 1958 (Cth) (Act).

3    Mr Nkani has a lengthy history of criminal offending.

4    On 6 September 2018, a delegate of the Minister cancelled Mr Nkani’s Visa pursuant to s 501(3A) of the Act (First Cancellation Decision). The First Cancellation Decision was based on:

(a)    the delegate’s satisfaction that Mr Nkani had a substantial criminal record, and did not pass the character test, due to being convicted on 1 May 2012 of breaking and entering and being sentenced to 15 months imprisonment; and

(b)    the fact that Mr Nkani was serving a sentence of imprisonment on a full-time basis as a result of a conviction on 8 September 2017 of two counts of breaking and entering (and parole having been revoked).

5    The First Cancellation Decision is not the subject of challenge in this proceeding.

6    On 4 December 2018, Mr Nkani was convicted, under the alias Jean Patrice Aime, of “Commit s 114 offence, having previous conviction”. The sentencing remarks of the Magistrate record that the conviction was under s 114(1)(d) of the Crimes Act 1900 (NSW) which proscribes entering or remaining in or upon any part of a building with intent to commit an indictable offence in or upon the building. Mr Nkani was convicted of being at a residential building with the intent to commit an indictable offence in that building, being break, enter and steal, and also being in possession of another person’s credit card which was reasonably suspected of being stolen or otherwise unlawfully obtained. Mr Nkani was sentenced to an aggregate term of three years imprisonment, which was reduced on appeal to an aggregate sentence of 18 months imprisonment (2018 Conviction).

7    On 24 February 2020, a delegate of the Minister decided to revoke the First Cancellation Decision pursuant to s 501CA(4) of the Act (Revocation Decision). It is an agreed fact that, as at the date of the Revocation Decision, the delegate was aware of and considered the 2018 Conviction, but nevertheless decided to revoke the First Cancellation Decision.

8    On 22 February 2021, Mr Nkani was convicted of “Assault occasioning actual bodily harm (DV)” and sentenced to 12 months’ imprisonment (2021 Conviction). The sentencing remarks of the Magistrate record that the offending conduct involved domestic violence towards a woman with whom Mr Nkani was in a relationship.

9    On 8 April 2021, the Minister’s delegate again cancelled Mr Nkani’s Visa pursuant to s 501(3A) of the Act (Second Cancellation Decision). The Second Cancellation Decision was based on:

(a)    the delegate’s satisfaction that Mr Nkani had a substantial criminal record, and did not pass the character test, due to the 2018 Conviction; and

(b)    the fact that Mr Nkani was serving a sentence of imprisonment on a full-time basis as a result of the 2021 Conviction.

10    The Second Cancellation Decision is indirectly the subject of challenge in this proceeding.

11    On 10 April 2021, Mr Nkani made representations seeking revocation of the Second Cancellation decision.

12    On 15 February 2022, a different delegate of the Minister decided not to revoke the Second Cancellation Decision pursuant to s 501CA(4) of the Act (Non-Revocation Decision).

13    On 18 February 2022, Mr Nkani applied to the Tribunal for review of the Non-Revocation Decision, pursuant to s 500(1)(ba) of the Act. Mr Nkani was not legally represented before the Tribunal.

14    On 10 May 2022, the Tribunal affirmed the Non-Revocation Decision.

15    On 13 October 2022, Mr Nkani filed an application for an extension of time in which to apply for judicial review of a migration decision in this Court. The application included a draft originating application that sought judicial review of the Tribunal’s decision affirming the Non-Revocation Decision.

16    The Court has jurisdiction to review the Tribunal’s decision under s 476A(1)(b) of the Act. The Court’s jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution (see s 476A(2) of the Act). An application to the Court to review the Tribunal’s decision is required to be made within 35 days of the decision (see s 477A(1)). In this case, an application for review was required to be filed by 14 June 2022. Thus, the applicant filed his application approximately four months out of time.

17    At the time of filing his application for an extension of time, Mr Nkani did not have legal representation and his draft originating application did not articulate in any meaningful way the proposed grounds of review of the Tribunal’s decision. On 14 April 2023, the Court made orders listing the matter for hearing on 27 June 2023 and requiring Mr Nkani to file and serve any amended application giving particulars of the grounds of review. On 16 June 2023, Zarifi Lawyers notified the Court that they had been engaged to represent Mr Nkani and requested an adjournment of the hearing. On 20 June 2023, the Court made orders by consent relisting the matter for hearing on 29 August 2023 and extending the time for Mr Nkani to file and serve any amended application giving particulars of the grounds of review until 4 August 2023.

18    On 11 August 2023, Mr Nkani filed and served an affidavit made by him that day. Amongst other things, the affidavit annexed a draft proposed amended originating application. On 25 August 2023, the Court made orders by consent granting leave to Mr Nkani nunc pro tunc to “file and serve … the proposed amended application” annexed to Mr Nkani’s affidavit. In hindsight, the order was poorly expressed. The purpose of the order was to give Mr Nkani leave to rely on the proposed amended originating application annexed to his affidavit for the purposes of his application for an extension of time and, if an extension were granted, the application for review. The hearing was conducted on that basis.

19    The proposed amended originating application stated three grounds of review of the Tribunal’s decision.

20    The first proposed ground of review involved a challenge to the Tribunal’s jurisdiction to review the Non-Revocation Decision (made under s 501CA(4)) for the reason that the Second Cancellation Decision (made under s 501(3A)) was not a valid or legally effective decision. This involved an indirect or collateral challenge to the Second Cancellation Decision. The specific complaint was that the Second Cancellation Decision relied on the 2018 Conviction in circumstances where the 2018 Conviction had been taken into account when the Revocation Decision was made.

21    In XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256 (XJLR), a majority of the Full Court concluded that the Court has jurisdiction to review the validity of a delegate’s decision under s 501(3A) in the context of an application for judicial review of a decision under s 501CA(4) (at [59]–[65] and [87] per Rares J and [95]–[96] per Yates J). Since the Full Court’s decision in XJLR, this form of indirect challenge to cancellation decisions made under s 501(3A) have become relatively frequent. As most recently discussed in Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171 at [13]-[16], XJLR has been followed in other decisions of the Full Court, but in those cases the Full Court was not invited to reconsider XJLR. In this matter, I am bound by the reasoning in XJLR.

22    The second proposed ground of review was that the Tribunal’s decision to affirm the Non-Revocation Decision was affected by jurisdictional error because the Tribunal failed to take into account a mandatory relevant consideration: whether Mr Nkani’s faced an impediment on being removed from Australia to Zimbabwe on account of his health.

23    The third proposed ground of review was that the Tribunal’s decision to affirm the Non-Revocation Decision was affected by jurisdictional error because the Tribunal failed to consider a clearly articulated and significant representation made by Mr Nkani in support of revocation, being that he had been the victim of sexual assault while in juvenile detention.

The application for an extension of time

24    As noted above, the Court has jurisdiction to review the Tribunal’s decision under s 476A(1)(b) of the Act. Section 477A imposes a time limit on making such applications. It provides as follows:

(1)         An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)         The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)     an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)     the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

25    Mr Nkani filed his application in the Court approximately four months after the 35-day time limit imposed by s 477A(1).

26    The Court has a discretion under s 477A(2) to extend the 35-day period by such period as it considers appropriate if two conditions are satisfied. The first is that an application for an extension has been made in writing to the Court. It is common ground that the first condition is satisfied in this case. The second is that the Court is satisfied that an extension is necessary in the interests of the administration of justice.

27    The discretionary power to extend time under s 477A was considered by the High Court in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 178 ALD 573. The following principles emerge from that decision:

(a)    The text of s 477A reveals a legislative intention to restrict the Federal Court’s exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b) (at [11] per Kiefel CJ, Gageler, Keane and Gleeson JJ, and [35] per Gordon, Edelman and Steward JJ).

(b)    On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court’s satisfaction that an order extending time is necessary in the interests of the administration of justice. Other than the interests of the administration of justice, there are no mandatory relevant considerations, whether express or to be implied from the subject-matter, scope and purpose of the Act (at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ, and [39] per Gordon, Edelman and Steward JJ).

(c)    The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application (at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ, and [40] per Gordon, Edelman and Steward JJ).

(d)    The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice (at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ).

(e)    There will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even exceptional (at [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ, and [54] per Gordon, Edelman and Steward JJ).

28    In support of the application for an extension of time, Mr Nkani relied on the following submissions:

(a)    there is no prejudice to the Minister from the grant of an extension;

(b)    the prejudice to Mr Nkani if the extension is not granted is very serious: he will lose the opportunity to challenge the Tribunal decision and will be liable to deportation from Australia;

(c)    the reasons given by Mr Nkani for the delay are adequate; and

(d)    the merits of the proposed grounds of review are strong.

29    As to the reasons for the delay, in his affidavit dated 4 October 2022 Mr Nkani deposed as follows:

(a)    that he had tried to file the application on time but was unable to do so due to “internet technical problems” at the Christmas Island detention centre;

(b)    that his “second reason” for missing the deadline was that it had been very difficult for him to access lawyers from the Christmas Island detention centre;

(c)    that he had attempted to file the paperwork by himself on 9 June 2022 but he received an email from the Court Registry explaining that he had not properly submitted the paperwork; and

(d)    after that attempt, the internet at Christmas Island detention centre was offline because of maintenance.

30    In his subsequent affidavit dated 11 August 2023, Mr Nkani purported to attach emails “to the Federal Court registry in June and August 2022 to lodge my appeal”. Attached to the affidavit were emails dated 14 and 22 June 2022 addressed to “sydney.filling@fcfcoa.gov.au” which is not an operative email address for the Court. On 24 June 2022, Mr Nkani sent an email to the address nswreg@fedcourt.gov.au, which is an operative email address for the Court. An email reply informed Mr Nkani that he had failed to attach any documents to his email. Mr Nkani appears to have sent a further email in response attaching some documents, although the evidence is unclear in that respect. If and to the extent Mr Nkani sent any documents to the Court by email, the documents were not exhibited to his affidavit. The Court’s records show that Mr Nkani’s application was not lodged for filing until 13 October 2022.

31    Although there are deficiencies in the evidence adduced by Mr Nkani, overall I am satisfied that it is necessary in the interests of the administration of justice to make an order under s 477A(2) extending time for the making of Mr Nkani’s application. Mr Nkani’s evidence illustrates the type of circumstances that may impede a person from filing an application for review in the Court within the 35-day time period prescribed by s 477A(1). Those circumstances include having limited English, being detained in a remote location (Christmas Island), having limited access to the internet, and having no legal assistance. I am satisfied on the evidence that Mr Nkani attempted to make an application within the prescribed time but failed due to those circumstances. I also accept, and take into account, that an extension of time will not cause prejudice to the Minister, whereas the refusal of an extension would be likely to have very serious consequences for Mr Nkani.

32    In reaching a decision that an extension of time should be granted, I have not found it necessary to assess the merits of the proposed grounds of review beyond an impressionistic level. I am satisfied that an extension should be granted largely because of the impediments faced by Mr Nkani in making his application. I have formed the view that the grounds of review are not hopeless and, in the circumstances of this case, that is sufficient to support the extension of time.

First ground of review

33    The first ground of review is that the Tribunal lacked jurisdiction to review the Non-Revocation Decision (made under s 501CA(4)) for the reason that the Second Cancellation Decision (made under s 501(3A)) was not a valid or legally effective decision.

34    Mr Nkani submitted that the Second Cancellation Decision was invalid because it was based on the 2018 Conviction in circumstances where the 2018 Conviction had been taken into account by the delegate who made the earlier Revocation Decision. Mr Nkani based his submission on the decision of the Full Court in XJLR, although he accepts that his submission involves an extension of the principle stated in XJLR.

35    Section 501(3A) requires the Minister to cancel a visa in certain circumstances. It provides as follows:

(3A)    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), on the basis of paragraph (7)(a), (b) or (c); or

(ii)     paragraph (6)(e) (sexually based offences involving a child); 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.

36    Relevantly for present purposes, s 501(6)(a) stipulates that a person does not pass the character test if the person has a substantial criminal record as defined by subsection (7), which includes that the person has been sentenced to a term of imprisonment of 12 months or more.

37    Section 501CA enables a person whose visa has been cancelled under s 501(3A) to make representations to the Minister to have the cancellation revoked, and empowers the Minister to revoke the cancellation in certain circumstances. It relevantly provides as follows:

(1)         This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)         For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)     would be the reason, or a part of the reason, for making the original decision; and

(b)     is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)         As soon as practicable after making the original decision, the Minister must:

(a)     give the person, in the way that the Minister considers appropriate in the circumstances:

(i)     a written notice that sets out the original decision; and

(ii)     particulars of the relevant information; and

(b)     invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)         The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

38    Like the present case, XJLR concerned the legal validity of a second cancellation decision. In XJLR, the visa-holder was convicted of various offences and was sentenced to 45 months’ imprisonment (the first conviction). As a result of the first conviction, the visa-holder did not pass the character test (by reason that the visa-holder had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more). On the basis of the first conviction (and the visa-holder’s imprisonment), a delegate of the Minister cancelled the visa under s 501(3A). Two months later, another delegate of the Minister decided to revoke the cancellation under s 501CA(4). Two years later, the visa-holder was convicted of further offences (the second conviction) and sentenced to terms of imprisonment that were less than 12 months. A delegate of the Minister cancelled the visa for a second time under s 501(3A) on that basis that:

(a)    the delegate was satisfied that the visa-holder did not pass the character test because the visa-holder had a substantial criminal record, being the first conviction; and

(b)    the visa-holder was serving a sentence of imprisonment on a full-time basis as a result of the second conviction.

39    By analogy with the principles stated by the High Court in Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 (Makasa) in the context of the discretionary power to cancel a visa under s 501(2), the Full Court in XJLR concluded that s 501(3A) did not require (and did not permit) the cancellation of a visa in the circumstances described above: namely, that the cancellation power had been previously exercised on the basis of a conviction which satisfied the statutory test of having a substantial criminal record; the cancellation had been revoked; the visa-holder was subsequently imprisoned (for whatever reason); but the visa-holder had not committed a further offence giving rise to a new failure to pass the character test. Rares J concluded (at [76], Yates and Snaden JJ agreeing at [89] and [100] respectively) that:

… Once the power to revoke a cancellation based on the combination of the Minister’s satisfaction under s 501(3A)(a) and the fact of imprisonment under s 501(3A)(b) has been exercised under s 501CA(4), the combination of the same two factors cannot revive the duty under s 501(3A) so as to overcome the legal consequence of the s 501CA(4)(b) decision that there was another reason to revoke the cancellation. This is because the decision-maker, under s 501CA(4), had been satisfied that there was another reason to revoke the cancellation that had occurred by reason of the existence of the combination of factors prescribed in s 501(3A) despite the person not passing the broader character test in s 501(6). It follows that any combination involving the previous failure to satisfy the decision-maker under s 501(3A)(a) that the visa holder passed the specific character test cannot be used to cancel the visa again. The circumstance of, or reason for, any subsequent imprisonment has no relevance to the exercise of the power, because that fact does not change or create a new combination under s 501(3A). The Minister’s satisfaction as to the existence of the same failure to pass the character test is still coupled to an imprisonment and the previous s 501CA(4) decision-maker had already decided that there was another reason to revoke the earlier cancellation based on that combination in the context of any failure to pass the broader character test.

40    The facts in the present case differ from the facts in XJLR. The Second Cancellation Decision was not based on the same failure to pass the character test as the First Cancellation Decision.

41    As set out earlier, the First Cancellation Decision was based on:

(a)    the delegate’s satisfaction that Mr Nkani had a substantial criminal record, and did not pass the character test, due to being convicted on 1 May 2012 of breaking and entering and being sentenced to 15 months imprisonment; and

(b)    the fact that Mr Nkani was serving a sentence of imprisonment on a full-time basis as a result of a conviction on 8 September 2017 of two counts of breaking and entering (and parole having been revoked).

42    The Second Cancellation Decision was based on:

(a)    the delegate’s satisfaction that Mr Nkani had a substantial criminal record, and did not pass the character test, due to the 2018 Conviction; and

(b)    the fact that Mr Nkani was serving a sentence of imprisonment on a full-time basis as a result of the 2021 Conviction.

43    Mr Nkani’s argument relies on the agreed fact that, when making the Revocation Decision following the First Cancellation Decision, the delegate who made that decision was aware of and took into account the 2018 Conviction. Mr Nkani submitted that, because the 2018 Conviction was taken into account in the decision to revoke the First Cancellation Decision, that conviction could not be the basis for a subsequent cancellation under s 501(3A).

44    Mr Nkani accepted that the argument involves an extension of the principle established in XJLR. The foundation for the extension was said to be the relationship between the cancellation power in s 501(3A) and the revocation power in s 501CA(4). Mr Nkani did not submit that the powers in ss 501(3A) and 501CA(4) were, in effect, a single power, but argued that the powers involved a form of multistage decision-making of the kind considered in South Australia v O’Shea (1987) 163 CLR 378. Mr Nkani submitted that the provisions work together and involve one scheme of decision-making. On that basis, if the Minister (including by a delegate) had made a decision to revoke the cancellation of a visa under s 50CA(4), and in making that decision to revoke had taken into account the fact that the visa-holder had been convicted of a particular offence, the Minister could not subsequently make a further decision to cancel the visa under s 501(3A) based on that same conviction.

45    I do not accept Mr Nkani’s submission. The decision of the High Court in Makasa and the decision of the Full Court in XJLR concerned the question whether a visa cancellation power within s 501 of the Act can be exercised twice on the same factual basis (being the same failure to pass the character test). The question required consideration of s 33(1) of the Acts Interpretation Act 1901 (Cth) (Interpretation Act) which relevantly provides that, where an Act confers a power, the power may be exercised from time to time as occasion requires. In Makasa, the High Court concluded, in relation to s 501(2), that a sufficient contrary intention was evident, for the purposes of s 2 of the Interpretation Act, so as to displace the ordinary position in s 33(1) (at [44]-[55]). In XJLR, the Full Court applied the same reasoning in relation to s 501(3A) (at [72] per Rares J, Yates and Snaden JJ agreeing).

46    It can be accepted that the power to cancel a visa under s 501(3A) and the power to revoke the cancellation under s 501CA(4) are related powers. The latter may be exercised following a cancellation under s 501(3A) and if the former visa-holder makes representations to the Minister about revocation pursuant to s 501CA(4)(a). However, they are separate powers and are based on different criteria. The exercise of the discretionary power in s 501CA(4) is in no sense an exercise of power under s 501(3A). It follows that the issue considered in Makasa and XJLR does not arise in this case. The First Cancellation Decision made under s 501(3A) was not based on the 2018 Conviction. While the Minister’s delegate took into account the 2018 Conviction when making the Revocation Decision under s 501CA(4), that does not alter or affect the basis of the First Cancellation Decision. When the Minister’s delegate came to make the Second Cancellation Decision under s 501(3A), that power had not previously been exercised on the basis of the 2018 Conviction. The Second Cancellation Decision was made on a different factual basis to the First Cancellation Decision (cf Makasa at [57]). It cannot be said that the power to cancel under s 501(3A) on the basis of the 2018 Conviction was spent by virtue of the First Cancellation Decision (cf XJLR at [74]).

47    In Makasa, the High Court made clear that s 33(1) of the Interpretation Act applied to the cancellation power in s 501(2) to the extent that subsequent events or further information not previously before the Minister or a delegate provide a different factual basis upon which to exercise the power, including a new conviction or sentence of imprisonment that satisfies the statutory criteria for the exercise of the power (at [48]). The same conclusion is applicable to the cancellation power in s 501(3A). In my view, the fact that the Minister or a delegate has taken into account a new conviction or sentence when revoking a cancellation decision under s 501CA(4) does not prevent a subsequent cancellation decision under s 501(3A) being based on that new conviction or sentence.

48    For the foregoing reasons, I dismiss the first ground of review.

49    The Minister advanced a further reason why the challenge to the validity of the Second Cancellation Decision should be rejected, even if it were impermissible for the delegate to rely upon the 2018 Conviction. In making the Second Cancellation Decision, the delegate relied upon the 2021 Conviction for which Mr Nkani was sentenced to 12 months imprisonment. Although the delegate referred to that conviction and sentence in the context of the statutory condition in s 501(3A)(b) (as supporting the conclusion that Mr Nkani was serving a sentence of imprisonment on a full-time basis), the Minister submitted that the 2021 Conviction also satisfied the statutory condition in s 501(3A)(a)(i) (that Mr Nkani had a substantial criminal record by reason of being sentenced to a term of imprisonment of 12 months or more). The Minister submitted that the delegate was plainly satisfied of that circumstance because the delegate relied on the 2021 Conviction in making the Second Cancellation Decision. Thus, the 2021 Conviction provided an entirely separate basis for the Second Cancellation Decision. Further, as cancellation is mandatory under s 501(3A), the Second Cancellation Decision was both supported by and required by the 2021 Conviction.

50    In support of that argument, the Minister referred to SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 in which the High Court concluded that an application for review should be dismissed on discretionary grounds where, regardless of the merits of the ground of review, the decision-maker was bound by the governing statute to make the decision that was in fact made (at [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, at [87] per Kirby J and at [91] per Hayne J).

51    As I have concluded that Mr Nkani’s ground of review should be rejected, it is strictly unnecessary to determine whether the Minister’s further submission supporting the validity of the Second Cancellation Decision is correct. The argument has been adverted to, but not determined, in Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200 at [42]-[43] per Mortimer J (currently reserved before the Full Court on appeal, but on unrelated grounds) and SXNC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 390 at [29]-[30] per Stewart J. Nevertheless, in case the matter goes further, I record my view that the Minister’s argument should be accepted. The Second Cancellation Decision records, in effect, the delegate’s satisfaction that Mr Nkani had been sentenced to a term of imprisonment of 12 months by virtue of the 2021 Conviction, which necessarily means that the delegate was satisfied that Mr Nkani did not pass the character test because he had a substantial criminal record on that basis. The Second Cancellation Decision also records that Mr Nkani was serving a sentence of imprisonment on a full-time basis (by reason of the 2021 Conviction). It follows that the delegate was required to make the Second Cancellation Decision, regardless of the 2018 Conviction. If it were necessary to do so, I would have dismissed the first ground of review on that basis.

Second ground of review

52    The second ground of review is that the Tribunal fell into jurisdictional error by failing to take into account a mandatory relevant consideration before making its decision (to affirm the Non-Revocation Decision). Mr Nkani contends that, by paragraph 9.2(1)(a) of Ministerial Direction No. 90, the Tribunal was required to consider the extent of impediments Mr Nkani would face in establishing himself and maintaining basic living standards if removed from Australia to Zimbabwe, taking into account, amongst other things, his health. Mr Nkani submitted that the Tribunal failed to consider his drug and/or alcohol use as a health issue, and thereby failed to take into account a mandatory consideration.

53    Mr Nkani submitted that the Tribunal’s reasons show that the Tribunal was aware of his history of drug and alcohol use, and its relationship to his offending. The Tribunal made findings about Mr Nkani’s use of drugs and alcohol based on the materials before it in the context of considering paragraph 8.1 of Ministerial Direction No. 90, which refers to the protection of the Australian community from criminal or other serious conduct. Mr Nkani submitted that, when the Tribunal came to assess the material before it in the context of paragraph 9.2(1)(a) of Ministerial Direction No. 90, the Tribunal misunderstood its task. Mr Nkani submitted that the Tribunal’s reasons indicate that it erroneously believed that, for a health issue to be taken into account, there needed to be a clinical diagnosis, contrary to the decision of the Full Court in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 (Manebona) (at [101]). In the alternative, Mr Nkani submitted that the Tribunal erred in not considering whether his drug and alcohol dependency issues might pose an impediment on his return.

54    To a considerable extent, Mr Nkani’s submissions on this ground relied upon an asserted inconsistency in the Tribunal’s consideration of Mr Nkani’s use of drugs and alcohol in the context of paragraphs 8.1 and 9.2 of Ministerial Direction No 90. Mr Nkani did not contend that he ever made a representation to the Minister’s delegate or to the Tribunal that he had a health issue associated with his use of alcohol or drugs that would be an impediment to establishing himself and maintaining basic living standards if he was removed from Australia to Zimbabwe. Rather, Mr Nkani submitted that such a claim arose from the material that was before the Tribunal. In that regard, Mr Nkani relied on the following material that was before the Tribunal:

(a)    In his submission dated 31 December 2019 to the Department, Mr Nkani stated that he dropped out of school and started taking drugs and alcohol. It should be observed, however, that the context of the statement was to explain the reasons that he began to engage in criminal offending at a young age.

(b)    A New South Wales Police Force Criminal History – Bail Report for Mr Nkani recorded that, on 26 May 2016, Mr Nkani was remanded to the Drug Court of New South Wales in relation to certain charges.

(c)    In his submission dated 31 December 2019 to the Department, under the heading “Criminal Offences and History”, Mr Nkani stated as follows (errors in original):

In may 2016

I was sentenced and convicted to engage in another program under the supervision of Drug court and probation.

When I was in prison I also attended a few courses that would help me deal with alcohol and drug addiction called Equips and i also attended various types of counselling which also helped me overcome and understand the true nature of actions and my addictions.

•    Drug court provided me with counselling with psychologists and mental health.

•    I also had to take strict urine supervision of drugs and alcohol 3 times a week

•    I even requested to be enrolled into rehab because i was surrounded by temptations in the community and to me was a great idea.

•    I was happy to be there, everything was going just as planned and I was determined to change

Adele House rehab in coffs harbour very Helpful but was not the best centre to be, Although i learned a lot of things about myself and how to deal with some of my emotions

(d)    A Case Note Report of a psychological assessment conducted by the New South Wales Department of Corrective Services dated 15 January 2016 stated that Mr Nkani reported a history of alcohol use and drug induced psychosis, but that he was currently drug free. It should be noted, however, that the report also stated that Mr Nkani “presented with appropriate eye contact, speech, and affect”, that there “was nil evidence of thought disorder or psychosis”, and that Mr Nkani “denied any thoughts or history of deliberate self-harm and presented as stable in mental state”.

(e)    In his submission dated 21 April 2022, Mr Nkani stated as follows (errors in original):

The decisions and actions I have made whilst in immigration custody to rehabilitate myself in anyway.

…

I know I am still addicted to drugs and alcohol and it’s very hard for me to quit.

I know I have made a few promises to the department and to myself that I have changed and I am now better but I still continued to drink and commit serious crimes because of my alcohol consumption.

I have taken drugs once from 2016 –2022 and the reason for that was because I was so stressed out about my visa cancellation situation and also because I knew I was coming back to Villawood detention centre where I got stabbed again I was scared and worried.

…

Steps that I am doing to help.with my addiction and mental health situation...

My records and statements information confirms that i suffer from drug/alcohol addiction and mental health but I just haven’t been formally diagnosed yet..

I have repeatedly mentioned that I see things that are not there and I suffer from insomnia. I always seek for help and I always receive help but I haven’t received the appropriate treatment that I needed untill.

When I arrived to Christmas’s Island detention centre I advised the help professionals about my issues and they are actually giving the appropriate help I needed all along...

I always used to tell the professionals t from precious before that I need strong medication and ongoing counselling but I was always pushed away and given treatment that the professions thought I needed but instead they never took the time to listen to my cry of help...

I am having a very hard time dealing with alcohol and emotional stress because everytime I get depressed or emotional I used drugs and alcohol to heal the pain...

I have found a solution that I definately think.it will work for me and my alcohol addiction.

The doctor has prescribed me with a medical treatment called naltrexstone to take while in detention centre for my alcohol addiction.

This medicine used alongside counselling will support me with the treatment I need to rehabilitate myself and it works by reducing the craving I have for alcohol and would make me sick if I drink alcohol so I wouldn’t be able to drink..

I know it doesn’t sound like it’s the best drug to take but I can guarantee if I take that regularly, daily, weekly for a couple years I would be alcohol free because I never commit any crimes when I am slobber.

I really really want to change and I am willing to try anything I can in my life to make sure that one day I can have a normal life and also a safer environment for everyone else in the community.

Nnaltrexstone

Alcohol is not the main reason I commit crimes. Alcohol only enhances the feelings ones have at that moment and for me it’s usually anger from my past..

If I receive ongoing counselling and support while taking this drug I would definately be on a good and appropriate path for change in my life just as long as I stay slobber.

55    In its reasons, the Tribunal referred to an inconsistency in Mr Nkani’s evidence concerning his use of alcohol. The Tribunal said (at [100]):

The Applicant claims that he is “still addicted to drugs and alcohol and it’s very hard for me to quit”. On the other hand he insisted under cross-examination that he could drink moderately and not become drunk, which was also the evidence of one of his friends.

56    The issue raised by Mr Nkani under this ground has been considered by the Court in a number of cases, including at first instance by Logan J in LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 and by Full Courts in Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134, El Khoueiry v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 136 and in Manebona. As each of the Full Courts have identified, the question whether an applicant suffers from a health issue that would present an impediment on return to their country of citizenship is one of fact. As the Full Court said in Manebona (at [113]):

… whether evidence of a history of substance abuse clearly raises an issue as to whether a person has a health condition and whether it may pose an impediment to their ability to establish and maintain basic living standards is very much a factual question which depends upon the content of the material before the decision-maker.

57    On 1 November 2023, after the hearing of this application, the Full Court delivered judgment in Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 173 (Ibrahim) which also considered the issue raised by this ground of review. I invited the parties to file further submissions with respect to the relevance of Ibrahim to the ground as raised by Mr Nkani. The parties subsequently filed submissions and I have taken those submissions into account.

58    In Ibrahim, the Full Court stated two matters of principle that are relevant to the disposition of this ground of review, which I am bound to apply.

59    The first, at Ibrahim [63]-[68], is that the principles stated in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov) (at [24]-[25] per Gummow and Callinan JJ, with Hayne J agreeing at [95]) and in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) (at [61] per Black CJ, French and Selway JJ) are applicable to decisions made under s 501CA(4). The decision-maker is required to consider claims of substance that are clearly articulated or that clearly arise on the material before the decision-maker. As stated by the High Court plurality in Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304 (Plaintiff M1) (at [25] and [27] per Kiefel CJ, Keane, Gordon and Steward JJ, citations omitted):

25     … 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.

…

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.

60    At Ibrahim [68], the Full Court said:

… a decision-maker under s 501CA(4) of the Act can only come under an obligation to consider a matter if it is clearly articulated, or, if not clearly articulated, clearly arises on the representations. The representations must be regarded as extending at least to any material provided in response to the invitation given under s 501CA(3)(b) of the Act to provide representations. Where a review is conducted by the Tribunal, the obligation may extend to considering additional submissions and other material placed before the Tribunal: see Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 335 at [49]-[51] (Colvin J); Brownlie v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 436 at [53] (Feutrill J).

61    The second matter of principle, at Ibrahim [70]-[74], is that a decision-maker is not obliged to take into account a matter that only arose from the decision-maker’s findings. As recognised by the Full Court, however, the fact that a decision-maker made a finding upon a particular matter might be relevant to the Court’s determination of whether the matter clearly arose on the material as a reason advanced for revocation of the cancellation decision (Ibrahim at [75]).

62    With respect to the second matter of principle stated in Ibrahim, Mr Nkani submitted that his circumstances are distinguishable from those in Ibrahim in that he made clear representations about his drug and alcohol use issues. Mr Nkani submitted that, unlike in Ibrahim, he did not “disavow” suffering from drug and alcohol problems and was forthright in admitting that he remained addicted despite his attempts at rehabilitation. Mr Nkani submitted that his representations were supported by records going to the issues of his historic addictions.

63    While it can be accepted that Mr Nkani made representations about his drug and alcohol use issues, the representations were made in the context of explaining his history of offending and his risk of re-offending. Mr Nkani did not make any representation to the effect that his use of drugs and alcohol would be an impediment to establishing himself and maintaining basic living standards if removed to Zimbabwe.

64    Mr Nkani made a formal submission in the alternative that the second matter of principle stated in Ibrahim is incorrect, while acknowledging that I am bound to apply the principles stated in Ibrahim. Mr Nkani submitted that the representations made by a person in response to an invitation under s 501CA(3)(b) do not constrain the decision-maker in assessing whether there is “another reason why the original decision should be revoked” under s 501CA(4). If there is something before the decision-maker that would provide “another reason” for revocation, the decision-maker cannot shut their eyes to it simply because it was not part of the case clearly advanced by the person seeking revocation. Mr Nkani submitted that “another reason” may find support from clear representations made by a person seeking revocation; it may clearly arise from the material otherwise before the decision-maker; and it may also find support from findings of fact otherwise made by the decision-maker on a particular matter based on the material before it. The fact that the particular matter may not have been “clearly articulated” by the person seeking revocation does not, in and of itself, mean that it cannot under any circumstances bear on the question of whether “another reason” exists.

65    The Minister submitted that the second matter of principle stated in Ibrahim is correct and consistent with other decisions of the Full Court, including Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137 at [48] (Logan J, Charlesworth and Thomas JJ agreeing).

66    As Mr Nkani acknowledged, I am bound to apply the principles stated in Ibrahim. Ultimately, the relevant question is whether the Tribunal conducted its review in accordance with law by considering the representations and arguments that were clearly articulated by Mr Nkani or which clearly arose on the materials before the Tribunal.

67    With the foregoing legal principles in mind, it is necessary to consider the relevant requirements of Direction No. 90, the representations made by Mr Nkani and the Tribunal’s findings.

68    Direction No. 90 was given by the Minister on 8 March 2021 pursuant to s 499 of the Act. The Direction concerned the exercise of the power to refuse or cancel a visa under s 501 and the power to revoke a cancellation decision under s 501CA. By s 499(2A), the Tribunal was required to comply with the Direction.

69    Paragraph 6 of the Direction required a decision-maker to take into account the considerations identified in sections 8 and 9, where relevant to the decision. As observed by the Full Court in Manebona (at [95]), the words “where relevant” in para 6 indicate that the duty to take into account the specified considerations is not an invariable one. The relevance of the consideration will depend upon the representations and evidence put forward by the applicant in a particular case. Paragraph 8 stated the “primary” considerations to be taken into account and para 9 stated “other” considerations to be taken into account. Paragraph 7(2) stated that primary considerations should generally be given greater weight than the other considerations.

70    By paragraph 8.1, the first of the primary considerations that was required to be taken into account was the protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(2) stipulated that decision-makers should give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

71    The evidence before the Tribunal supported the conclusion that Mr Nkani’s offending was related to his drug and alcohol use. In the context of considering the protection of the Australian community under paragraph 8.1, the Tribunal made findings to that effect, including:

(a)    Mr Nkani stated that he dropped out of school and started to hang around with the wrong crowd of friends who introduced him to the use of alcohol and drugs, and from there he fell into a life of petty crime commencing with his first offence in 2010 (at [37]);

(b)    in 2016, Mr Nkani appeared before the New South Wales Drug Court under a program for offenders whose offending has been largely precipitated by their use of alcohol and other drugs, and who are given an opportunity to enter into a controlled and managed programme in lieu of serving a custodial sentence (at [56] and [57]);

(c)    Mr Nkani failed to comply with the Drug Court’s conditions (at [59]);

(d)    there is an underlying aetiology for Mr Nkani’s offending which relates to the misuse of alcohol and other drugs (at [99]);

(e)    Mr Nkani claimed that he is “still addicted to drugs and alcohol and it’s very hard for me to quit”, but also insisted under cross-examination that he could drink moderately and not become drunk (at [100]);

(f)    there is no medical diagnosis to support the proposition that Mr Nkani has a clinical diagnosis or dependency on alcohol as distinct from being what he describes as a “binge drinker” who regularly got “wasted”, and the Tribunal cannot import into Mr Nkani’s narrative a finding that he has a health issue which needs to be addressed in the Tribunal’s findings (at [101]); and

(g)    Mr Nkani has made several attempts to “get clean” and was accorded a particular opportunity through the Drug Court program, but none of his efforts have succeeded and all have been vitiated by his failure to take advantage of opportunities presented (at [102] and [106]).

72    The Tribunal concluded that Mr Nkani is at a high risk of reoffending and those reoffences are likely to pose a significant danger to members of the Australian community (at [107]). Reading the Tribunal’s reasons as a whole, it is clear that the Tribunal accepted that Mr Nkani’s use of alcohol and drugs was a primary factor in his offending, that Mr Nkani had made efforts at rehabilitation but had failed, and that this was unlikely to change in the future.

73    It is apparent that the Tribunal was unwilling to find, on the evidence before it, that Mr Nkani’s use of drugs and alcohol gave rise to a health issue which needed to be addressed in the Tribunal’s reasons (at [101]). A question arises whether, at that point of the Tribunal’s reasons, the Tribunal was seeking to draw a distinction between Mr Nkani’s use of alcohol and his use of drugs. The Tribunal’s statement follows a sentence that refers to Mr Nkani’s use of alcohol. However, the Tribunal does not otherwise draw a distinction between Mr Nkani’s use of alcohol and his use of drugs. Both are described as a cause of Mr Nkani’s offending (at [99]). Nor does Mr Nkani seek to differentiate between his use of drugs and alcohol in his representations to the Tribunal. Reading the Tribunal’s reasons as a whole, I understand the Tribunal’s conclusion at [101] is that the Tribunal did not consider that Mr Nkani’s use of drugs or alcohol gave rise to a health issue which needed to be addressed in the Tribunal’s reasons.

74    Mr Nkani did not contend that that conclusion was irrational or unreasonable such as to constitute jurisdictional error. The conclusion finds support in the material before the Tribunal, which is reproduced above, although it can be accepted that Mr Nkani’s representations with respect to his use of drugs and alcohol contained significant inconsistencies. One the one hand Mr Nkani referred to being addicted to drugs and alcohol; on the other hand Mr Nkani represented that he had only used drugs once between 2016 and 2022 and was able to drink moderately. Although the Tribunal observed that there was no “medical diagnosis” to support a conclusion that Mr Nkani has a clinical dependency on alcohol, I do not understand the Tribunal to be suggesting that a medical diagnosis is required before such a finding can be made. Rather, I understand the Tribunal to be adverting to the absence of a medical diagnosis as a matter it took into account in making the finding that the Tribunal was not satisfied that Mr Nkani has a health issue in the nature of a clinical dependence on alcohol.

75    By paragraph 9(1)(b), one of the “other” considerations that was required to be taken into account by the Tribunal was the “extent of impediments if removed”. Paragraph 9.2(1) of Ministerial Direction No. 90 stated as follows:

(1)    Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

b)     whether there are substantial language or cultural barriers; and

c)     any social, medical and/or economic support available to them in that country.

76    In Manebona, the Full Court made the following observations about the meaning of the word “health” as used in paragraph 9.2(1)(a) of the Direction (at [100] and [101]):

100    The word “health” in the phrase “age and health” in para 9.2(1)(a) is used according to its ordinary meaning. In Holloway, Colvin J explained at [12] that, “the word health would ordinarily be understood to mean any aspect of a person’s physical wellbeing”. We would add that the word is also capable of encompassing a person’s mental wellbeing. Where it is reasonably open to determine that a condition falls within that expression, the question as to whether it does or does not is one of fact for the decision-maker.

101    It must be accepted that nothing in para 9.2(1)(a) requires that there must be medical certification in order for a non-citizen’s “health” to be taken into account under that paragraph. Of course, medical certification may more readily allow a decision-maker to be satisfied that the non-citizen suffers from any claimed health condition and that the condition may be an impediment to the person establishing themselves and maintaining basic living standards if removed to their home country, but it is not an essential requirement.

77    The Tribunal considered the extent of impediments that Mr Nkani would face if removed to Zimbabwe at [156] to [174] of its reasons. At [156] and [159], the Tribunal made the following findings:

156    There are a number of factors which need to be considered in relation to this criterion. Initially it should be noted that the Applicant is a relatively young man, he is physically fit with no diagnoses of significant physical or mental health problems. He grew up until the age of 13 years in Zimbabwe and thus has some understanding of the culture and mores of that country. He speaks excellent English and some Shona, although he says (understandably) his level of fluency has declined over recent years. Nevertheless, he would be able to revive his understanding of the language if required to speak it more often.

…

159    … The Tribunal accepts that health services may not be comparable to those in Australia but as already noted, this is not the relevant comparator and there is no submission by the Applicant that he actually has significant needs for health services.

78    The footnote to the first sentence of [156] referenced Mr Nkani’s Personal Circumstances Form dated 5 May 2021 that was submitted to the Department in support of the revocation of the cancellation of his visa. The Form asked questions based on the mandatory considerations specified in Direction 90, although the questions were framed narrowly. In particular, the first question was: Do you have any diagnosed medical or psychological conditions? As observed by the Full Court in Manebona (in the passage cited above), there is nothing in paragraph 9.2(1)(a) of the Direction that confines the consideration to medical or psychological conditions that have been formally diagnosed by a medical practitioner. Mr Nkani ruled a line through that question. The Form also asked whether “you are currently being treated by any doctor/health professional/counsellor”, to which Mr Nkani answered “none”.

79    In submissions, the Minister placed considerable reliance on the answers given by Mr Nkani in his Personal Circumstances Form, submitting that Mr Nkani made no representation to the effect that his health would constitute an impediment on return. I accept that Mr Nkani made no representation to that effect and, as discussed below, that is an important factor in considering the second ground of review. However, the answers given by Mr Nkani in his Personal Circumstances Form must be understood in light of the specific questions asked. The questions were framed narrowly, and Mr Nkani’s responses to the narrowly framed questions cannot be taken to negative any suggestion that he had health issues that would constitute an impediment on return. That is particularly so in circumstances where Mr Nkani was not legally represented when completing the form or in conducting the review in the Tribunal.

80    In substance, Mr Nkani made two criticisms of the Tribunal’s reasons with respect to paragraph 9.2(1)(a) of the Direction. First, Mr Nkani criticised the Tribunal’s statement that Mr Nkani has “no diagnoses of significant physical or mental health problems”, and submitted that this reveals that the Tribunal wrongly believed that a health issue could only be taken into account if it was supported by medical certification. Second, and in the alternative, Mr Nkani submitted that the Tribunal erred in failing to consider whether his drug and alcohol dependency issues might pose an impediment on his return, and thereby failed to take account of a mandatory consideration in paragraph 9.2(1)(a) of the Direction.

81    I do not accept the first criticism. I do not understand the Tribunal to be saying that it would only take account of a health issue if there was a medical diagnosis or certification to support the claim. As has been said on many occasions, the reasons of an administrative decision-maker are not to be read finely “with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The Tribunal’s reasons at [156] merely record a finding of fact that Mr Nkani had “no diagnoses of significant physical or mental health problems”. That finding was factually correct on the material before the Tribunal. As stated above, the absence of a medical diagnosis of alcohol dependency is a relevant matter for the Tribunal to consider, and there is no error in the Tribunal taking that into account in making findings and reaching a decision.

82    I also reject the second criticism. The Tribunal’s reasons at [156] and [159] demonstrate that the Tribunal took into account Mr Nkani’s health as required by paragraph 9.2(1)(a) of the Direction. It can be accepted that the Tribunal did not make reference to whether Mr Nkani’s alcohol or drug use might pose an impediment on return to Zimbabwe. However, I infer that the Tribunal did not make reference to Mr Nkani’s alcohol or drug use in that context because the Tribunal did not consider that it was relevant in the context. In my view, it was open to the Tribunal to form that view.

83    The materials before the Tribunal concerning Mr Nkani’s use of drugs and alcohol have been reproduced above. Read fairly, the materials were directed to the reasons for his offending and the risk of his reoffending. None of the materials referred to his use of drugs and alcohol as giving rise to an impediment to establishing himself and maintaining basic living standards in Zimbabwe. In my view, no such claim was articulated by Mr Nkani, and no such claim clearly arose from the materials.

84    As discussed earlier, the Tribunal reached the conclusion at [101] that it did not consider that Mr Nkani’s drug and alcohol use gave rise to a health issue that needed to be addressed in the Tribunal’s reasons. Mr Nkani did not challenge that finding as being legally unreasonable. Having made that finding, it is understandable that the Tribunal did not then consider whether Mr Nkani’s drug and alcohol use would give rise to an impediment to Mr Nkani establishing himself and maintaining basic living standards in Zimbabwe. It was reasonable for the Tribunal to form the view that Mr Nkani did not have a health issue associated with his drug and alcohol use that required consideration in that context.

85    As submitted by the Minister, Mr Nkani had to point to more than the existence of his alcohol and drug use to engage paragraph 9.2(1)(a) of the Direction. Necessarily, the condition must be of such a nature that it may impede Mr Nkani in establishing himself or in maintaining a basic standard of living in Zimbabwe. Mr Nkani made no such representation, and no such representation clearly arose on the materials before the Tribunal.

86    For those reasons, I dismiss the second ground of review.

Third ground of review

87    The third ground of review is that the Tribunal fell into jurisdictional error by failing to consider a clearly articulated and significant representation made by Mr Nkani in support of revocation of the Second Cancellation Decision before making its decision. The claimed representation was that Mr Nkani had been the victim of a sexual assault (rape) by a corrective officer while he was being held in juvenile detention.

88    In support of that ground of review, Mr Nkani relied on the following materials:

(a)    In an email sent to the Tribunal on 1 April 2022 titled “Personal Support Letter”, Mr Nkani made the following claims (errors in original):

In juvinille correction I was molested by one Juvinille justice corrective officers but a few of them knew about it.

My friend [name omitted] whom I got arrested with also experienced the same thing in Cobham corrective.

I am 100% certain other kids in that favility Experienced rape and being molested by the people who where supposed to keep us safe ..

I have never told anyone about this but this time I had to because I keep getting fucked and then blammed for how I was raised up and turned out to be it's not fair..

(b)    During the Tribunal hearing on 28 April 2022, the following exchange between the Tribunal member and Mr Nkani occurred:

Now, I said to you very early in the piece this morning - and I might just press you on some issues which might be particularly sensitive - and I’ll ask you the question, but if you feel that you’d rather not say anything about it, you don’t have to answer the question. But when you were a young man in Zimbabwe you say that you were subject to serious physical assault. In one of your statements you actually use the term that you were, ‘raped’. Did this occur, and did it occur more than once? --- It occurred once, and it nearly happened twice. And it happened to my friend as well that I was arrested with. And we were both in juvenile justice.

So, the perpetrators in this instance were people who were in a detention centre, or a prison, or they were a gang? --- That was - that was in Cobham Young Offender’s Detention Centre.

I see, they were fellow detainees in Cobham? --- No - the officers. They were caseworkers (indistinct). It was happening a lot at that time. It was happening a lot to people, yes.

89    Mr Nkani submitted that, in performing its task, the Tribunal was required to undertake the assessment by reference to the case made by him by his representations (referring to Plaintiff M1 at [22] (Kiefel CJ, Keane, Gordon and Steward JJ). Mr Nkani also relied on the following statement of the Full Court in Manebona at ([91]-[92], citations omitted):

…It is improbable that Parliament intended that every statement within the representations should be treated as a mandatory relevant consideration, but the decision-maker cannot ignore the representations. The requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before the decision-maker.

Where a decision-maker acting under s 501CA(4) of the Act ignores or overlooks a substantial argument or fact that is clearly articulated or clearly arises on the materials before them, they may fall into jurisdictional error…

90    Mr Nkani submitted that the Tribunal made no reference to the sexual assault representations in its reasons.

91    Mr Nkani acknowledged that a failure to mention particular information does not necessarily mean that the Tribunal has not considered that information – the Tribunal may not have considered the information to be material to the Tribunal’s decision. Mr Nkani submitted that, in the present case, the Court should conclude that the Tribunal had failed to consider the information because:

(a)    He was self-represented before the Tribunal and relied on a limited number of statements in support of his application for review, one of which disclosed that he had been sexually abused.

(b)    While the Tribunal asked Mr Nkani about the sexual assault, the question was asked in the context of considering non-refoulement. When Mr Nkani made clear that the assault occurred in Australia, the Tribunal no longer pursued the matter.

(c)    The Tribunal delivered a statement of reasons which was otherwise comprehensive. In those reasons, the Tribunal summarised its understanding of the “Applicant’s personal narrative” (at [28]-[39]). The Tribunal dealt extensively with Mr Nkani’s offending and other representations he had made in support his claim, including his history of physical abuse as a child before he arrived in Australia. There was no suggestion that the Tribunal did not accept Mr Nkani’s account or that he was not a credible witness.

(d)    Despite detailing his narrative and other representations made in favour of revocation, the Tribunal made no reference to the sexual assault representations in any part of the reasons.

92    For the following reasons, I do not accept that the Tribunal’s decision was affected by jurisdictional error in the manner alleged by Mr Nkani.

93    In ETA067 v Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228, the High Court considered a similar argument under a similar legislative scheme for review of administrative decisions. The High Court observed (at [13], citations omitted):

The absence of an express reference to evidence in a tribunal’s reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

94    In giving reasons in writing for its decision, the Tribunal’s statutory obligation was to include “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based” (see s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)). In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67, the Full Court observed (in respect of s 430 of the Act which is in materially the same terms as s 43(2B) of the AAT Act):

33    The Tribunal is required by s 430 to set out its findings on questions of fact it considers to be material, together with the evidence and other material on which those findings were based. In these circumstances, a court considering a challenge to the Tribunal’s decision is generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the Tribunal to be material to its review: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; and SZGUR.

34     The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

95    As submitted by the Minister, there is no basis in this case for an inference that the Tribunal did not consider the sexual assault representations. First, the email dated 1 April 2022 containing the sexual assault representations was specifically referred to by the Tribunal in its reasons (at [28], fn 21). Second, during the hearing, the Tribunal member asked Mr Nkani about the representations.

96    It can be accepted, as submitted by Mr Nkani, that the sexual assault representations were advanced as a contributing factor for Mr Nkani’s offending. However, taken in the context of Mr Nkani’s overall submissions to the Tribunal, the sexual assault representations were not put forward as a significant factor in Mr Nkani’s offending. The far more significant factors were the abuse Mr Nkani suffered in his childhood, the difficulties he experienced in adapting to life after migrating to Australia and his subsequent use of alcohol and drugs. The Tribunal made findings about those matters at [28]-[37]. I draw the inference that the Tribunal formed the conclusion that the sexual assault experienced by Mr Nkani in juvenile detention was not a material factor in Mr Nkani’s offending. In my view, it was open to the Tribunal to reach that conclusion.

97    For those reasons, I dismiss the third ground of review.

Conclusion

98    In conclusion, I grant Mr Nkani’s application for an extension of time in which to make his application to review the decision of the Tribunal, but I dismiss the application with costs.

Associate:

Dated:    16 November 2023