Federal Court of Australia

Amodu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 10

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the costs of the first respondent of and incidental to the proceedings in an amount to be fixed.

3.    Within 21 days the parties do each provide any submissions of no more than three pages as to the quantum in which those costs should be fixed together with any necessary affidavit in support.

4.    The quantum in which costs should be fixed be determined on the papers.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In 2021, Mr Amodu's humanitarian visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) when the Minister was satisfied that he did not pass the character test because he had been sentenced to a term of imprisonment for more than 12 months and he was serving that sentence of imprisonment. After he made representations seeking the revocation of the cancellation of his visa, a delegate of the Minister refused to revoke the cancellation. The Administrative Appeals Tribunal affirmed the decision on review. Mr Amodu now seeks to review the Tribunal's decision for alleged jurisdiction error.

2    The grounds of the review application in this Court have been prepared with legal assistance, but Mr Amodu was unable to obtain pro bono assistance to present submissions in support of the grounds. He appeared on his own behalf at the hearing of his application to this Court. In his oral submissions he referred to his long personal history of trauma. He said he had been unable to access the services of a psychologist. He said he had medical conditions and was on blood pressure and heart medication. He referred to the interests of his son and the fact that his sick mother needed him to look after her as matters that the Tribunal should have taken into account. He also made some reference to the traumatic circumstances in which he had fled to safety that had supported the grant of his humanitarian visa.

3    The application for review raised four grounds, which were to the following effect:

(1)    In its reasoning concerning the impact of the applicant's offending on his mother as a victim of some of his past offending, the Tribunal failed to understand and evaluate his representation that he played the role of carer for his mother 'and/or' reasoned irrationally or legally unreasonably in relation to that representation.

(2)    In its consideration of the applicant's background of trauma, the Tribunal failed to understand and evaluate the applicant's representation that his personal history of trauma was 'another reason' why his visa cancellation ought to be revoked and should have, but did not, take into account that background as a health issue that would be an impediment if he was removed to Liberia.

(3)    In its consideration as to whether the applicant would face indefinite detention if his visa cancellation was not revoked, the Tribunal failed to take into account the real likelihood that he would face indefinite detention 'and/or' failed to take into account the legal consequences of the decision 'and/or' reasoned irrationally or legally unreasonably.

(4)    In its consideration of the applicant's representations about the prevailing circumstances in Liberia the Tribunal failed to understand and evaluate those representations 'and/or' the Tribunal's reasoning was irrational or legally unreasonable.

4    Particulars were provided as to each ground and are brought to account in dealing with each of the grounds in the reasons which follow.

Relevant matters of principle

5    The Tribunal had to determine whether it was satisfied that (a) Mr Amodu did not pass the character test in the Migration Act; or (b) there is not another reason why the visa cancellation should be revoked: s 501CA(4) and s 500(1)(ba). There was no issue as to (a). As to (b), the substantive task for the Tribunal was to understand and evaluate the representations made by the applicant as to why there was 'another reason' for the cancellation of his visa to be revoked and to make a determination on the merits as to whether it was satisfied that there was another reason. The Tribunal fails to performed its required task if it does not understand and evaluate the applicant's representations. However, 'approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister': ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [8] (Mortimer, Colvin and O'Sullivan JJ).

6    Separately, reasoning by the Tribunal that is legally unreasonable will be reviewable for jurisdictional error. The test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J), [135] (Edelman J). The same may be said of any separate review ground based upon illogicality: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131], [135] (Crennan and Bell JJ); and Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; (2020) 280 FCR 1 at [23]-[25] (Murphy, O'Callaghan and Anastassiou JJ).

Ground 1: The role of the applicant's mother as carer

7    Regard to the particulars reveals that the claim made is that the evidence given by Mr Amodu before the Tribunal was to the effect that he acted as his mother's carer and provided physical assistance with essential day to day tasks which she needed. It is then said that the Tribunal failed to deal with the representation that the applicant provided critical day to day assistance 'which only he could provide'. Further, it is said that the Tribunal reasoned irrationally from the fact that the family would get together for special occasions that other children would provide day to day caring assistance.

8    The part of the Tribunal's reasons the subject of ground 1 is concerned with the impact on victims, Mr Amodu's mother having been a victim of one of the past assaults for which he was convicted. As to whether Mr Amodu's mother was in need of care from her son, the Tribunal considered her evidence and reasoned that she was attempting to embellish her son's involvement in her care so that his application would be viewed more favourably. The Tribunal did not reason that because the family got together for special occasions, other children would provide assistance. Rather, in forming a view as to the credibility of the account given by the mother, the Tribunal pointed to that evidence as being inconsistent with her account that none of her other children communicated with her.

9    It was within the jurisdiction of the Tribunal to form a reasoned view as to the credibility of the evidence given by the mother. Having reached that conclusion, it was not relevant or necessary for the Tribunal to refer separately to evidence from Mr Amodu about the care that he said he could provide. The conclusion that the Tribunal reached was that the mother's account that it was only her son who would provide her with care was not accepted.

10    Further, the Tribunal had already made findings that the evidence given by Mr Amodu lacked credibility: see paras 13, 48, 79 and 81. The failure to refer to his separate evidence concerning care for his mother is explicable on the basis that the Tribunal did not accept his evidence.

11    Ground 1 must be rejected.

Ground 2: Background of trauma as a health issue

12    Regard to the particulars indicates that the claim made is that the representations that Mr Amodu made about his history of trauma were advanced as 'another reason' why his visa cancellation should be revoked and the Tribunal failed to deal with that representation and consider the consequent mental health difficulties for Mr Amodu if he were removed to Liberia. It is said that if those matters had been considered then the Tribunal may have concluded that Mr Amodu was unlikely to receive treatment in Liberia and returning him to the place of his past trauma may compound his mental health difficulties.

13    In the part of its reasons that were concerned with the risk to the Australian community should the applicant reoffend, the Tribunal dealt with aspects of the applicant's childhood trauma as well as his issues with anger management and lack of impulse control. This included conclusions that Mr Amodu has unmet treatment needs in the area of anger management and impulse control. However, none of that analysis was concerned with the way in which his behavioural issues may give rise to impediments for Ms Amodu if he was removed to Liberia. Counsel for the Minister accepted that was the case.

14    Nevertheless, it was submitted for the Minister that the Tribunal's reasons demonstrated that it identified and understood the material in relation to his trauma. Further, the Minister pointed to the fact that Mr Amodu did not identify any psychological conditions in his personal circumstances form provided in support of his request for reconsideration of the cancellation of his visa. In that form he provided the following response to a question about the impact on his minor children if he was removed from Australia:

If I was sent to Liberia it isn't a safe country. Have no work or finances. It's very poor country no Centrelink no clean water. I wouldn't be able to maintain contact with my daughter due to financial reasons I wouldn't be able to provide money or any support to her in Sierra Leone [where she lives].

15    As to the part of the form which invited him to record any concerns or fears about returning to Liberia he said 'I cannot speak the Local Language in Liberia. As I was a refugee & went to Sierra Leone when I was 7 years old. I have no support or family in Liberia'.

16    There is no reference to any representation about diagnosed mental health issues that required treatment beyond his problems with anger management and impulse control that were identified as being relevant to his offending. That is to say, there was no representation made that there were issues with the applicant's mental health that meant that he would face difficulties if returned to Liberia. There was no evidence of any diagnosed medical condition requiring treatment. Although the applicant made references to his history of trauma as a child being relevant to whether his visa cancellation should be revoked, those matters were not advanced to support any claim about difficulties he would face in relation to mental health issues and treatment if removed to Liberia.

17    In those circumstances, the applicant has failed to demonstrate that there was a representation advanced as to such matters that was not considered or understood by the Tribunal.

18    It follows that ground 2 has not been established.

Ground 3: Likelihood of indefinite detention

19    In its reasons, the Tribunal included a section under the heading 'Legal Consequences of the Decision'. The reasons were a generic description of the consequences of the applicant's visa being cancelled. It referred to the possibility that he may apply for a protection visa. It referred to the prospect that he would be held in detention until he is removed and pending the determination of any application for a protection visa or any request to the Minister to exercise personal non-compellable powers to afford him permission to remain in Australia. The reasons did not refer to any prospect of indefinite detention. However, the failure to do so could not said to be a failure to consider the legal consequences of the decision. Whether that prospect arose would depend upon evidence as to the circumstances in which a person like him may be able to be removed to Liberia or some other place where he had a right to permanent residence.

20    It was not suggested that Mr Amodu advanced any representation to the effect that he was likely to be held in indefinite detention. No particulars were advanced as to why it was said that the Tribunal was required to take into account whether Mr Amodu was at risk of being indefinitely detained if his visa cancellation was not revoked.

21    For those reasons, no basis for ground 3 has been demonstrated.

22    The Minister submitted that there was no error demonstrated in failing to have regard to indefinite detention as a possible legal consequence because there could be no such consequence given the recent High Court decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37. In NZYQ, the High Court unanimously reopened and overruled its earlier constitutional holding in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562. It determined that the constitutionally permissible period of executive detention of an alien under the statutory scheme in the Migration Act comes to an end 'when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future': at [55].

23    It is not necessary to consider whether this change in the state of the law might be relied upon for the purposes of considering whether there was jurisdictional error.

Ground 4: Prevailing circumstances in Liberia

24    The final ground is devoid of merit. The Tribunal dealt with the representations by the applicant concerning the prevailing circumstances in Liberia: paras 157-161, 165-169. The Tribunal concluded that there are significant social and emotional impediments that the Applicant would have to overcome if returned: para 168. These conclusions must be understood in a context where the Tribunal had earlier referred to the applicant's concerns about the economic situation in Liberia including a lack of government assistance and his concerns about unclean water: para 161. The Tribunal did take into account the representations that Mr Amodu made about circumstances in Liberia. It found that there are likely to be substantial impediments, both in the short and long term and those matters were found to weigh strongly in favour of revocation: para 169.

Conclusions and orders

25    For reasons that have been given, the application must be dismissed. As to costs, the applicant made submissions to the effect that he would be unable to meet any costs order due to his current circumstances. However, as the applicant has been wholly unsuccessful, I am satisfied that there should be an order for costs in favour of the Minister. The Minister seeks an order for the costs to be fixed. I am satisfied that it is an appropriate case for costs to be fixed. I will order that the applicant must pay the Minister's costs in an amount to be fixed. The parties should provide any submissions in writing as to the appropriate amount. I will determine the amount on the papers.

Associate:

Dated:    16 January 2024