Federal Court of Australia

HSCK v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 313

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

BUTTON J:

Background

1    The Applicant was born in Sudan. He fled Sudan, with his family (but separated from his father), in 2001. After spending time in a refugee camp in Egypt, the Applicant was granted a Class XB Subclass 200 Refugee visa on 14 March 2003. He arrived in Australia with his mother and siblings on 5 May 2003. He was 11 years of age at the time.

2    In July 2015, the Applicant was convicted of various offences, and sentenced to an aggregate period of imprisonment of 20 months. On 25 January 2016, a delegate of the Minister cancelled his visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). That cancellation was invalid due to notification issues, and a new notification of cancellation was issued on 5 April 2022. While representations were made by the Applicant, the Minister’s delegate decided not to revoke the cancellation decision.

3    In the meantime, the Applicant had applied for a protection visa on 23 May 2017. On 27 February 2019, The Minister’s delegate made a finding that the Applicant was a refugee within the meaning of s 5H of the Act, and also that he faced a real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia to South Sudan, within the meaning of s 36(2)(aa). By virtue of those findings, the Applicant was subject to a protection finding, as defined in s 197C(5) of the Act. Nevertheless, the Minister’s delegate did not grant the protection visa on the basis that the Applicant’s criminal conviction and danger to the community meant he did not satisfy s 36(1C) of the Act.

4    An earlier Tribunal proceeding affirmed the finding under s 36(1C) of the Act.

5    On 28 September 2023, the Tribunal affirmed the delegate’s decision not to revoke the visa cancellation. The Tribunal published written reasons (T). By the present application, the Applicant contends that the Tribunal’s decision was affected by jurisdictional error.

6    The Applicant was released from immigration detention on or about 21 November 2023, following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; [2023] HCA 37 (NZYQ).

Grounds of appeal

7    The Applicant advanced three grounds of review (the third of which was finalised, by a further amended application dated 14 December 2023, after the Applicant’s release from immigration detention).

8    The grounds were as follows, omitting particulars:

1.    The Tribunal failed to consider the expert evidence and representations made on behalf of the Applicant that the applicant had a likely mild intellectual disability or acquired brain injury and/or misconstrued the evidence and representations by finding that there was no evidence that the Applicant has suffered from any diagnosed mental health condition.

2.    The Tribunal misconstrued Ministerial Direction 99 in that it erred by reducing the weight attributed to the consideration ‘extent of impediments if removed’ on the basis that its subject matter was connected to the ‘legal consequences of the decision’ consideration, or alternatively, the approach of the Tribunal in doing so was irrational or unreasonable in the circumstances.

3.    The decision of the Tribunal was affected by jurisdictional error, in that the Tribunal’s conclusion that the continuing indefinite detention of the applicant was justified by the protection of the Australian community was not open to the Tribunal, as it was contrary to the decision of the High Court in NZYQ v Minister for Immigration [2023] HCA 37.

9    The parties’ written and oral submissions focused on ground 3, so I will start with that ground.

Ground 3: jurisdictional error relating to effect of High Court decision in NZYQ v Minister for Immigration

The High Court’s decision in NZYQ

10    Ground 3 relies on the High Court’s decision in NZYQ. In NZYQ, the High Court determined that, subject to s 3A of the Act, ss 189(1) and 196(1) of the Act authorised the detention of the plaintiff in that case. Their Honours also determined, however, that ss 189(1) and 196(1) of the Act were beyond the power of the Commonwealth insofar as they applied to the plaintiff in that case.

11    Section 189(1) obliges an officer to detain an unlawful non-citizen in certain circumstances. Section 196 is concerned with duration of detention. Section 196(1) provides that:

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)     he or she is deported under section 200; or

(c)     he or she is granted a visa.

12    Section 3A(1) of the Act provides that:

(1)    Unless the contrary intention appears, if a provision of this Act:

(a)    would, apart from this section, have an invalid application; but

(b)     also has at least one valid application;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

13    In NZYQ, the High Court declared that “by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future”, his detention was unlawful and therefore ordered a writ of habeas corpus issue requiring the plaintiff’s release (emphasis added).

14    The specific language by which the High Court framed the declaration in NZYQ, is important. Their Honours explained (at [55]) that the “appropriate expression of the applicable constitutional limitation” followed directly from the principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim). Their Honours went on to explain why they rejected variations of the expression of the applicable constitutional limitation that had been proffered by the defendants and certain amici.

15    The Court (at [57]) noted that the defendants’ fallback position was that the limitation should be expressed by reference to the time when there “is no real prospect” of removal of the alien from Australia, and expressly rejected the defendants’ contention that notions of practicability and the reasonably foreseeable future were unnecessary distractions. Their Honours considered that those notions were “essential to anchoring the expression of the constitutional limitation in factual reality”.

16    The High Court also explained (at [58]) why it rejected the suggestion by some amici that the limit should be expressed by reference to the point at which it “can be determined to be more probable than not that the alien will not be removed from Australia in the foreseeable future”. That formulation was rejected on the basis that it uncoupled the limitation from its underlying constitutional justification and would go beyond merely ensuring that the detention is limited to what is reasonably capable of being seen as necessary for the purposes of removal.

17    I have dwelled on these matters because of the importance of the question of whether concessions made by the Minister in the Tribunal, concerning the prospects of the Applicant’s removal, were sufficient to engage the constitutional limitation explained in NZYQ. The Minister emphasised that the High Court clearly paid close regard to the expression of the constitutional limitation in submitting that the terms in which concessions were made before the Tribunal cannot be approached on the basis that they were near enough to, or the functional equivalent of, the terms of the constitutional limitation explained in NZYQ.

Proceedings before the Tribunal

18    Proceedings before the Tribunal took place in September 2023. Obviously enough, those proceedings did not anticipate the constitutional limitation that was explained by the High Court when it published its reasons in NZYQ in late November 2023.

19    “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99) was a direction made under s 499 of the Act. The Tribunal was obliged to follow it in exercising its discretion to revoke the decision cancelling the Applicant’s visa.

20    Direction 99 establishes five “primary considerations” and lists (on a non-exhaustive basis) four “other considerations” which must be taken into account, where relevant. The prospect of indefinite detention was a matter that was relevant to the Tribunal’s assessment of one of the “other considerations”, namely the legal consequences of the decision.

21    The Tribunal recorded several concessions having been made by the Minister. First, that the Applicant is a person subject to a protection finding (as defined in s 197C of the Act) (T [119]). The consequence of this was that, unless circumstances in South Sudan changed, Australia’s non-refoulment obligations prevented his removal to South Sudan against his will.

22    Secondly, and having noted that the threats faced by the Applicant in South Sudan meant it was “very unlikely” that he would voluntarily return to South Sudan, the Tribunal recorded (T [127]) that the Minister “concedes that the prospects of finding another country willing to receive the Applicant are poor, and that there are only limited prospects of either of the Minister’s personal discretion options being engaged”.

23    The Tribunal determined that “the likelihood is that the applicant will remain in indefinite detention without any clear prospect for release if the cancellation of his Visa is not revoked” (T [128]). On that basis, the Tribunal noted a further (and third) concession by the Minister that “remaining in immigration detention for an indefinite period” would be “likely to adversely affect the Applicant’s mental and physical health”, and that significant weight should be afforded to this “other consideration” in favour of a finding that the revocation decision should be set aside (T [128]).

24    The Tribunal then concluded, on the “other consideration” of the legal consequences of the decision, as follows (T [129]):

Indefinite detention would pose a serious risk to the Applicant’s physical and psychological health. It would deprive the Applicant of his most basic freedoms and impose on him in effect a form of punishment reserved for the most serious criminal conduct. The Tribunal is satisfied that even though it is not a primary consideration under Direction 99, this consideration weighs heavily in favour of revoking the cancellation of the Applicant’s Visa, but it must be weighed with other considerations and may be outweighed by them.

25    As is clear, the Tribunal gave significant weight, in favour of the Applicant, to this “other consideration” on the premise that he would remain in detention indefinitely if the cancellation decision were not revoked. This was reiterated towards the end of the Tribunal’s reasons, when (T [146]–[147]) it summarised the considerations against revoking the cancellation decision (protection of the Australian community and expectations of the Australian community) and the four considerations it identified as weighing in favour of revocation (the best interests of minor children, the strength, nature and duration of the Applicant’s ties to Australia, the prospect of indefinite detention, and the extent of impediments if removed to South Sudan).

The parties’ arguments

26    The Applicant’s argument on ground 3 depended on making good the following three key propositions:

(a)    the concessions made by the Minister before the Tribunal, and the findings made by the Tribunal, were sufficient to bring the case within the constitutional limitation explained in NZYQ;

(b)    the Tribunal failed to recognise this and approached the balancing exercise on the basis that, indefinite detention of the Applicant being lawful, it was weighing up the effects of indefinite detention on the Applicant against other matters, particularly the protection of the Australian community; and

(c)    had the Tribunal recognised that the Applicant could not be held in indefinite immigration detention, it would have conducted its weighing exercise by comparing the Applicant’s release into the community on a permanent visa (by revocation of the cancellation decision) with either:

(i)    the Applicant’s release into the community on some kind of temporary visa with onerous restrictions attached, which carried the risk of the Applicant committing further criminal offences by not adhering to those strict conditions; or

(ii)    the Applicant’s release into the community on some kind of temporary visa, even if the stringent conditions actually imposed could not be foreseen.

27    The principal strands of the Minister’s response to ground 3 were as follows. First, the Minister disputed that his concessions in the Tribunal, and the Tribunal’s findings, were sufficient to engage the constitutional limitation explained in NZYQ.

28    Secondly, and contrary to a premise of the Applicant’s argument, the Minister submitted that the Tribunal was not required to engage in a forecasting exercise as to what would happen if a constitutional fact existed such that the Act did not operate. Although such an argument was raised by Kennett J in dicta in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130 (AJN23), the Minister said the argument would constitute a radical extension of authority in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 (NBMZ). The Minister submitted that the NBMZ line of authority was concerned with an implication from the Act that requires the decision-maker to consider (or not misunderstand) the consequences of the operation of the Act, whereas the Applicant’s argument contends that the decision-maker should have contemplated the non-operation of the Act.

29    The Minister submitted that to require consideration of the non-operation of the Act (or, put differently, the application of the constitutional limitation) would have required the Tribunal to decide questions of constitutional fact (or a collateral habeas case that was not run) and to speculate as to future possibilities (cf to consider the inevitable and certain legal consequences of the decision).

30    Thirdly, the Minister contended that if there was an error, it was as to a matter of fact (an error in forecasting the practical consequences of an adverse decision).

Consideration

31    In my view, the Minister’s submission that the constitutional limit explained in NZYQ was not clearly engaged in respect of the Applicant, must be accepted.

32    In NZYQ, the parties agreed, as at 30 May 2023, various facts. One such fact was that there was “then no real prospect of the plaintiff being removed from Australia in the reasonably foreseeable future”: NZYQ at [63]. Evidence was also adduced in the High Court concerning enquiries that had recently been made of the four other “Five Eyes” countries as to the potential for the plaintiff to be removed to those countries. Three of the four countries in question quickly responded in the negative. The United States Department of State said it would consider the matter but, despite frequent follow-up contact, provided no further substantive response before the High Court heard the plaintiff’s application: NZYQ at [65]–[66]. The High Court had affidavit evidence concerning what an officer of the Department of Home Affairs made of the response of the United States. Neither party submitted that the position at the end of the hearing differed from that agreed as at 30 May 2023: NZYQ at [69].

33    The final position was that although removal to the United States remained a possibility, “the evidence failed to establish that the prospect of removal to the United States occurring in the foreseeable future was realistic”. There being “no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future”, ss 189(1) and 196(1) of the Act did not validly apply to authorise his continued detention: NZYQ at [70].

34    The circumstances before the Tribunal were different. The concessions made by the Minister are to be understood having regard to the context in which they were made. First, that context included the factual reality that NZYQ had not yet been handed down, and so the concessions cannot be construed as pre-figuring characterisations of fact that the High Court had yet to make. Secondly, the Applicant had not yet exhausted his domestic review and appeal rights. Accordingly, and as the Minister submitted, the occasion had not yet arrived to make enquiries and see whether he could be removed to a third country, or what timeframes would be involved. All the Tribunal had to go on were the Minister’s concessions (coupled with its assessment of the potential that the Applicant would, notwithstanding his protestations to the contrary, return voluntarily to South Sudan). Thirdly, and relatedly, the Minister’s concessions were made in the context of the Tribunal having to consider the legal consequences of the decision under review. The effect of the concessions was to identify, as a legal consequence of the decision, the prospect of indefinite detention and the impact of such detention on the Applicant.

35    The terms in which the concessions were recorded by the Tribunal were not couched in terms that clearly engaged the constitutional limit identified in NZYQ. To concede — in the abstract, and in the absence of the moment having arrived at which enquiries might be made of third countries — that the prospects of finding another country willing to receive the Applicant as “poor” is not to say that it has been established, on the evidence or by admission, that there was “no real prosect of the removal of the [Applicant] from Australia becoming practicable in the reasonably foreseeable future”. As explained in detail above, the High Court drew attention to the fact that the terms in which the constitutional limitation was cast were selected with careful deliberation, and were used precisely. The decision in NZYQ does not invite the ready use of pragmatism or analogy so as to render concessions, framed as the Minister’s concessions were, constitutional facts resulting in the application of ss 186(1) and 196(1) to the Applicant being unconstitutional, and thereby founding a conclusion that, by operation of s 3A of the Act, those provisions did not authorise his detention.

36    Similarly, to the extent that the Tribunal went beyond the Minister’s concessions and identified that the Applicant was to have his application determined on the “hypothesis” that he would be indefinitely detained (T [127]) and identified that the “likelihood is” that the Applicant would remain in “indefinite detention without any clear prospect for release” (T [128]), those findings do not constitute findings of the constitutional facts necessary to engage NZYQ. In WKMX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463; [2021] FCAFC 55, Kenny J and Mortimer J (as the Chief Justice then was) cautioned that close attention must be paid to what is meant by “indefinite” when one speaks of “indefinite” detention. The Tribunal’s findings do not enable a conclusion that the Tribunal was using “indefinite detention” in the requisite sense (being that the subject of Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37) as distinct from referring to detention without a pre-determined end point. The Tribunal’s reference to detention “without any clear prospect for release” suggests the latter, which is not sufficient to engage the constitutional limitation.

37    These points are sufficient to dispose of ground 3, but I will address some further matters that were raised in argument.

38    On the question of materiality, it might, at first glance, be thought that the question was to be approached on the basis that, had the Tribunal recognised that the Applicant could not be held in immigration detention (as the Applicant says it should have), it would not have treated the “legal consequences of the decision” as a consideration that weighed heavily in the Applicant’s favour. In other words, the Applicant would not have had the benefit of a finding that weighed heavily in his favour and so any error could not be seen to be material on the basis that it deprived the Applicant of a realistic chance of a more favourable outcome. It is, of course, clear that an Applicant only needs to establish that, had the decision-maker not engaged in the reviewable error, it “could realistically” have made a different decision (Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ); see also MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ)). It should also be recalled that, as Kiefel CJ, Keane and Gleeson JJ said in Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [33], materiality represents an “undemanding” standard.

39    The third element of the Applicant’s argument seeks to meet this potential difficulty with materiality by contending that, had the Tribunal not erred, it would have conducted an altogether different comparison, the course and results of which could (on the undemanding standard) have been more favourable to the Applicant.

40    The Applicant’s principal argument on this part of the case sets up a false comparison, or at least one that assumes that the Tribunal ought to have reasoned by pre-empting the strict measures the Government of the day would impose on non-citizens released following the NZYQ decision and the fact that failing to abide by those conditions would itself be a criminal offence. That would go well beyond assessing whether the Tribunal erred in law by reference to the law as correctly revealed by NZYQ, by expecting the Tribunal to have pre-empted Government policy decisions as to temporary visa conditions which were not even the subject of evidence before this Court.

41    The Applicant’s alternate position on this point was that the comparison would have been between releasing the Applicant on his prior (and restored) permanent visa, or releasing him on a temporary visa. The Applicant relied on Kennett J’s observations, in dicta, on materiality in AJN23 and suggested that it was realistically possible that the Tribunal would then have reasoned that it would have considered permanence to present a better option for the community and the Applicant. The Minister criticised this argument on the basis that it strayed into the realm of “conjecture”, which Kiefel CJ, Gageler and Keane JJ rejected in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 (Hossain) at [36].

42    Of course, this point in the analysis is only reached on the counterfactual that the Tribunal had concluded that the Act did not apply to authorise the ongoing detention of the Applicant (and I have concluded that the Tribunal did not engage in any relevant error in failing to so find). Nevertheless, had the Tribunal so concluded, it could not have been expected to speculate as to the nature of the visa on which the Applicant would be released.

43    I would not, however, have rejected Ground 3 on the basis that the Applicant’s alternative materiality argument depended on conjecture of the kind disapproved in Hossain. The specific course of events that the High Court regarded as involving conjecture in Hossain, are unlike the very straightforward prediction that the Applicant would have been released, on some basis, if the Act did not lawfully apply to continue to hold him in detention. That being the case, the Tribunal would have been presented with a different set of circumstances to assess, different potential outcomes to compare, and could have reached a different decision.

44    The Minister also contended that any error would not be jurisdictional as any error would, in substance, have been a factual error in forecasting the practical consequences of an adverse decision. While it is not necessary finally to determine the question, I am not persuaded by the Minister’s argument. At the relevant point in its analysis, the Tribunal was considering the legal consequences of the decision not to revoke the cancellation of the Applicant’s visa. At one level, such consequences can be described in factual terms: the Applicant would have remained in detention (as the Tribunal in fact reasoned) or the Applicant would have to have been released. While the latter conclusion may be stated as a “fact”, it is a factual conclusion driven by the application of the law to the facts concerning the Applicant and the prospect of his removal from Australia, on the basis that that exercise engaged the constitutional limits such that the Act did not apply to authorise the Applicant’s ongoing detention.

45    Stepping back from the facts of this particular case, a “wrong” conclusion about whether a non-citizen would remain in detention if a cancellation decision is not revoked might be reached either because the decision-maker mistook the facts concerning the prospects of removal, or because the decision-maker mistook the law concerning the circumstances in which indefinite detention is, and is not, affected by the constitutional limitation. In other words, an error of law may drive an erroneous conclusion even if that conclusion may be stated in terms that present it as a “fact”. In AJN23, Kennett J said (in dicta), of an error of law that might have been contended for, that it was a complex question whether an error of law of that kind goes to jurisdiction and that question was “best not embarked upon in the absence of detailed argument” (at [40]). While the point was raised in the Minister’s written submissions, it occupied two sentences and was not the subject of detailed argument. It is undesirable that I say more, beyond noting that I have some reservations about the sympathy for the view, taken by Kennett J in AJN23, that an error of the kind is “in substance factual”. At the very least, the conclusion to that question may be affected by the interplay between considerations of fact and law.

46    I am also not persuaded that, by requiring that regard be had to the consequences flowing from the non-operation of the Act, the Applicant’s argument was flawed on the basis that it departed from existing authority, which requires that regard be had to the legal consequences flowing from the operation of the Act (cf its non-operation). In NBMZ, a Full Court of this Court held that the Minister was required to, but failed to, take into account a legal consequence of the decision, which in that case was that the non-citizen faced indefinite detention. In Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; [2016] FCAFC 177 (Taulahi), another Full Court, referring to NBMZ, referred to the need to take into account and consider the “direct and immediate statutory consequences” of the decision: Taulahi at [84] and [88] (Kenny, Flick and Griffiths JJ). The Minister also relied on Bromberg J’s explanation in DLJ18 v Minister for Home Affairs (2019) 273 FCR 66; [2019] FCAFC 236 where his Honour explained that what is required is an assessment of the “particular legal consequence” flowing from the statutory framework (at [27]).

47    While the Minister is correct to observe that it is not the task of an administrative decision-maker to embark on enquiries that may expose a constitutional limitation resulting in the non-application of the Act (or specific provisions of it), that is not to say that the Tribunal can in all circumstances, or must always, proceed on the basis that ss 186(1) and 196(1) of the Act will necessarily apply without s 3A of the Act being engaged to limit their application. However, as I have concluded that the concessions made before, and facts found by, the Tribunal did not engage the constitutional limitation explained in NZYQ, it is not necessary to determine whether the effect of NBMZ, Taulahi and other cases in that line of authority, is that, in considering the legal consequences of the decision, the Tribunal should have assumed all provisions of the Act, including ss 186(1) and 196(1), would operate and apply according their terms. In another case, concessions made, or facts found, concerning ongoing detention or the prospects of removal might make that proposition look rather fragile, if not wrong.

Ground 1: finding that there was no evidence the applicant suffered from any diagnosed mental health condition

48    Ground 1 does not have merit. The Applicant submitted that it was part of his case before the Tribunal that there was “another reason” to revoke the cancellation decision, which involved his mental health and possible acquired brain injury. As advanced by the Applicant, this ground of appeal concerned the “other consideration” of the impediments that the Applicant would face if removed to South Sudan. The Applicant submitted that the issue was also raised in relation to the risk of re-offending.

49    Central to the Applicant’s argument on this ground was a report of Dr Nina Zimmerman, a forensic psychiatrist (the Zimmerman Report). The Applicant contended as follows in relation to the Zimmerman Report (footnotes omitted):

44.     The Zimmerman Report makes the following findings:

i.     it was likely that the applicant suffered from either a mild intellectual disability or an Acquired Brain Injury (ABI);

ii.     it was striking that a psychological assessment resulted in the applicant being placed in a Specialist School for children with disabilities and that it was at that school that the applicant could cope for the first time;

iii.    the applicant reported receiving a serious head injury at age 15 that left him unconscious;

iv.     the applicant’s struggles with employment and feedback that he was “making too many mistakes” may represent difficulties with a mild intellectual disability;

v.     in relation to interventions and supports necessary to address the applicant’s risk of further offending, Dr Zimmerman recommended counselling by a service that has experience working with offenders and those with comorbidities “such as intellectual impairments”;

45.     Taken together, the matters set out in the Zimmerman Report are tantamount to a finding, on the balance of probabilities, that the applicant suffered from a mild intellectual disability or an ABI. Dr Zimmerman speaks in terms of ‘likelihood’ as opposed to ‘possibility’.

50    The Applicant went on to contend that the Tribunal had not given proper consideration to the Zimmerman Report as it found there was no evidence the Applicant suffered from any “diagnosed mental health condition” (T [117]) but made no reference to what the Applicant characterised as the “substantive opinion” in the Zimmerman Report, including the “likelihood of a mild intellectual disability or Acquired Brain Injury”. The Applicant contended that, while a summary of the Zimmerman Report was referred to by the Tribunal in connection with the “protection of the Australian community” primary consideration, the Tribunal did not consider the issue at all in the context of impediments if removed under paragraph 9.2 of Direction 99.

51    The first problem with the Applicant’s argument is that it mischaracterises the Zimmerman Report. Dr Zimmerman was not retained to, and did not, diagnose the Applicant. She was retained to, and did, comment on the risk of the Applicant offending against persons in the community if allowed to remain in Australia with a visa, relevant supports that could reduce any risk, protective measures that could be put in place to further reduce any risk, and prospects for rehabilitation.

52    In the course of developing her opinion, Dr Zimmerman addressed historical risk factors, clinical risk factors and risk management. The historical risk factors included problems with work, which were assessed as likely being due to a combination of his heavy substance abuse, but also his “cognitive limitations”. The Zimmerman Report confirmed that the Applicant had no formal history of mental illness, did have a clear history of “polydrug abuse” and violence associated with inebriation. It was in this context that Dr Zimmerman said, “I also note the likelihood of a mild intellectual disability or Acquired Brain Injury”, commenting that it was striking that a psychological assessment resulted in him being placed in a specialist school and it was in that environment that he was able to cope for the first time. Dr Zimmerman also observed that the Applicant’s “struggles with employment and feedback that he was ‘making too many mistakes’ may represent difficulties associated with a mild intellectual disability”.

53    In relation to risk management, Dr Zimmerman opined that past interventions did not take into account his “likely cognitive impairment”, before observing that appropriately tailored interventions would stand a much greater chance of success, but would “clearly need to be guided by a neuropsychological assessment of [the Applicant’s] intellectual functioning and any impairment or acquired brain injury”. Dr Zimmerman concluded that, while rehabilitation had failed in the past on repeated occasions, with “appropriate targeting of interventions (after an assessment of his functioning has occurred)” and an assertive outreach case-management model of care delivery, the Applicant was in a better position than previously to make the most of interventions.

54    As it is framed, ground 1 impugns the finding that there was no evidence that the Applicant has suffered from any diagnosed mental health condition. That finding is said to involve error on the basis that it was formed without considering, or by misconstruing, the expert evidence, and representations made on behalf of the Applicant, that he had a likely mild intellectual disability or acquired brain injury.

55    There can be no suggestion that the Tribunal wholly overlooked the Zimmerman Report as its reasons referred to that report at numerous points. In particular, the Tribunal set out the conclusions of Dr Zimmerman in some detail, but without referring to the observations made about the likelihood that the Applicant suffered a mild intellectual disability or acquired brain injury (T [49(a)]), referred to the Applicant’s reliance on the Zimmerman Report in connection with the likelihood of his reoffending (T [66]), referred to the Zimmerman Report in addressing the expectations of the Australian community (T [117]), and again in connection with the risk posed to the Australian community (T [72], [85], [89]).

56    It is also of critical importance to note that Dr Zimmerman did not “diagnose” the Applicant with any condition. To that extent, the Tribunal’s finding that there was no evidence the Applicant suffered from any “diagnosed mental health condition” was accurate. Saying something is “likely” is not tantamount to a diagnosis.

57    The Applicant relied on the decision of McEvoy J in KQHR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1205 (KQHR). However, that decision does not assist the Applicant. That matter concerned a case in which the Tribunal had before it an expert report from a psychologist, who also gave oral evidence. The evidence of the psychologist was that the non-citizen had post-traumatic stress disorder and a major depressive disorder. The psychologist’s report also went into considerable detail about the specifics of the Applicant’s impairment and the nature of the difficulties he would face in Iran as a result of that impairment. Against that evidence, the Tribunal in KQHR relied on a note in a report of a health contractor operating in immigration detention to conclude that the non-citizen did not suffer from any mental illness, and used it to discount the expert evidence. Justice McEvoy concluded that the Tribunal’s approach was irrational and not open on the evidence: KQHR at [13]–[14] and [18]–[19].

58    The circumstances in KQHR are a far cry from the present case. In this matter, Dr Zimmerman did not purport to have diagnosed any mild intellectual impairment or acquired brain injury. Rather, she raised the perceived likelihood of the Applicant suffering those conditions in setting out his history and in explaining why she considered rehabilitation programs tailored to the Applicant’s personal circumstances stood a chance of success despite the failure of earlier rehabilitative efforts.

59    Nevertheless, even though Dr Zimmerman did not diagnose the Applicant with any mental health condition — and thus the statement of the Tribunal at T [117] is correct — that is not the end of the matter, as it is clear from the Zimmerman Report that Dr Zimmerman perceived indications of a likely mild intellectual disability or potentially an acquired brain injury.

60    The difficulty for the Applicant, however, is that these findings of Dr Zimmerman were not a matter that the Applicant relied on before the Tribunal.

61    In his Statement of Facts, Issues and Contentions (SFIC) before the Tribunal, the Applicant relied on the Zimmerman Report in relation to the level of risk he posed to the Australian community.

62    In connection with the impediments he would face on return, the Applicant’s SFIC addressed Australia’s non-refoulement obligations and then said as follows:

48.     Furthermore, the Applicant notes that the current situation in South Sudan is characterised by conflict and uncertainty. Even were the Applicant not subject to the Protection Finding, there would be significant impediments to returning the Applicant to a conflict zone.

49.     The Applicant has not lived in Sudan for almost 20 years. He would face significant cultural and societal barriers upon return as he has been separated from local cultural practices. He does not have family in Sudan/South Sudan. He has no connections in Sudan/South Sudan that he could rely on to provide him safety or support. This lack of social connections would have obvious implications for his ability to subsist. The Applicant would struggle to find employment, safe and permanent accommodation or other social support.

63    The Minister also raised the Zimmerman Report in his SFIC. In particular, the Minister referred to several matters of concern in relation to that report and the Applicant’s prospects of rehabilitation and likelihood of reoffending.

64    The Applicant’s contentions in reply before the Tribunal did not raise the Zimmerman Report and also did not raise any matter concerning a likely mild intellectual disability or acquired brain injury in connection with impediments to return or at all.

65    To the extent that the statements of the Applicant and his supporting witnesses to the Tribunal referred to the impediments associated with his return to South Sudan, they raised his lack of any support system in that country, and ongoing instability and violence in that country. They did not raise the likelihood of a mild intellectual disability or acquired brain injury.

66    The transcript of proceedings before the Tribunal was not in evidence (but it was not suggested by the Applicant that any point concerning a likely mild intellectual disability or acquired brain injury was raised orally before the Tribunal).

67    The only point in the entire record in which there is any hint of the issue now raised — and said to give rise to jurisdictional error — is the Applicant’s representations to the Minister’s delegate. Those representations relevantly said as follows in connection with impediments to return (emphasis added, footnotes omitted):

In addition, [the Applicant] faces significant challenges in respect of seeking assistance with mental health services, relevant to any acquired brain injury or ongoing need to address issues arising from exposure to trauma.

•    “South Sudanese authorities have had limited capacity to respond to the needs of people with disabilities and the support provided by national and international organisations is not enough to meet the immediate and long term needs of people with disabilities”.

•    “South Sudan has critical levels of mental health issues as a result of the conflict but mental health services are extremely limited and people with mental health conditions have been locked in prison even if they haven’t committed a crime”.

•    South Sudan has one of the largest mental health gaps in the world.

o     A mental health treatment gap is the percentage of individuals who require treatment in a country or in a defined community but do not receive it.

o     The estimated mental health treatment gap among the population of humanitarian concern is 99%.

•     There is only one public medical facility that provides psychiatric care, the Juba Teaching Hospital.

o     If the 12-bed ward is full, or if a patient is not eligible to take a bed, the mentally ill are often detained in Juba’s Central Prison.

▪     In May 2016, according to Amnesty, the prison held 66 male and 16 female mentally ill patients.

o     There are also only three trained psychiatrists in the country.

•    There are also many misconceptions regarding mental illness in the community.

o     There are over 60 tribes in South Sudan with different beliefs, and most communities believe in supernatural possession or punishment by higher powers, as opposed to accepting a mental illness diagnosis.

o     Because of social stigma, and the belief that mental illness runs in the family, people would rather be known to be possessed than have a treatable mental illness.

In summary, if [the Applicant] is returned to South Sudan, he will face poverty and hardship and struggle to access food, health treatment or any support. Additionally, he will be isolated from his central supports – namely his parents, siblings and close friends, and be returned to a place where he has never been and in which he has limited prospects and social connections. If [the Applicant] is unable to access appropriate treatment and support, his mental health will suffer significantly.

68    In my view, the reference to the deficiencies of the Sudanese health services in connection with the prospect of the Applicant having difficulty in accessing support services relevant to “any acquired brain injury” is not sufficient to render the failure of the Tribunal to have regard to the “likely” mild intellectual disability or acquired brain injury a jurisdictional error.

69    In Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47; [2019] FCAFC 55 (Hong), Bromwich and Wheelahan JJ drew attention to the importance of the evidence, submissions and SFICs in shaping the issues before the Tribunal, as follows (at [65], emphasis added):

Sections s 33(2A)(c), 34J, 35 and 39 of the AAT Act contemplate that the material before the Tribunal will be shaped by the evidence, submissions, and by the written statements of facts, issues, and contentions. These features of the statutory and procedural framework in which the review in the Tribunal was undertaken are relevant to the identification of the claims that were maintained before the Tribunal. However, it is to be borne steadily in mind that the nature of the review process is inquisitorial rather than adversarial. The inquisitorial nature of the Tribunal’s functions means that the way parties conduct their cases before the Tribunal does not have the same significance as the way parties conduct adversarial litigation before a court.

70    Nevertheless, as their Honours pointed out (at [66]), the inquisitorial character of proceedings means that “the Tribunal may be obliged to consider substantial issues raised by the material before it, even if the issue is not the subject of submissions by the parties”. However, as their Honours went on to explain, not every matter raised in passing in any aspect of the material engages this inquisitorial component of the Tribunal’s function so as to require that regard be had to a matter even if it has not been raised by the parties. Their Honours said as follows (at [69], emphasis added):

At the heart of the guidance in AYY17 is the idea that the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials. That is equally so in relation to matters advanced in proceedings before the Tribunal involving reviews of decisions under s 501CA(4) of the Act, where the section contemplates that the former visa-holder may advance matters by way of representation directed to why the power of revocation should be exercised.

71    In Hong, their Honours concluded that, in the circumstances of the case, it was not enough for a claim to be advanced before the Tribunal, so as to require it to be considered as part of the Tribunal’s “irreducible jurisdictional task”, for it to be raised in two sentences in the original personal circumstances form accompanying the visa cancellation revocation form: Hong at [70].

72    Similarly, in the circumstances of this case, and where no relevant claim was advanced by the Applicant before the Tribunal, the passage of the representations made to the delegate concerning the parlous state of Sudanese mental health services and the lack of in-patient facilities (quoted above) did not raise a claim that required the Tribunal to consider the significance of Dr Zimmerman’s consideration that he likely had a mild intellectual disability or acquired brain injury.

Ground 2: approach to “extent of impediments” by reference to legal consequences

73    Ground 2 concerns the Tribunal’s decision to accord limited weight to the “other consideration” of the “impediments if removed” on the basis that (T [136]):

As to the weight to be given to the consideration of impediments if removed, the Tribunal notes that Direction 99 does not identify it as a primary consideration. In addition, it is a factor which is integral to the legal consequences of a decision not to revoke cancellation, a consideration which has already been attributed significant weight. Having regard to these matters and the Applicant’s current position regarding voluntary return, the Tribunal gives this consideration limited weight as a consideration in its own right.

74    That conclusion was reached after the Tribunal had identified a number of difficulties in addressing the impediments if removed. The Tribunal considered those matters against the Minister’s submission that the “impediments to removal” consideration was neutral given his acceptance that the Applicant’s circumstances engaged Australia’s non-refoulement obligations such that the Applicant would not be forcibly removed to South Sudan. The Tribunal considered the impediments to removal given that, despite his insistence that he would never voluntarily relocate to South Sudan even if the only other option was indefinite detention, his view may change. The Tribunal concluded (T [135]) that the impediments to removal was a consideration weighing in favour of revocation of the cancellation decision, before determining (T [136]) to accord that consideration limited weight “in its own right” given the overlap referred to in the passage quoted above.

75    The Applicant argued that the Tribunal’s approach was contrary to the High Court’s judgment in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196; [2024] HCA 2 (Ismail). The Applicant submitted as follows, referring to Ismail at [44]:

The High Court in Ismail rejected an argument that the delegate had impermissibly double counted the factual issue of family violence by considering it under multiple headings in Ministerial Direction 90 (the predecessor to Direction 99). The Court held:

Considerations which overlap (such as the consideration of the same acts of family violence in the different contexts of the protection of the Australian community, the views or policies of the Australian Government, and the expectations of the Australian community), by definition, are not wholly coextensive with each other. Weighing the relevance of the same acts of family violence in each different (albeit overlapping) context is not "repetitious weighing" or "double counting", and it would be wrong to conceptualise such a process of reasoning as irrational, illogical, or legally unreasonable.

76    The Applicant then argued that, just as the delegate in Ismail was required to consider each of the considerations in the Direction according to its terms, even if there was some overlap, so too was the Tribunal in this case, but it failed to do that. The Applicant also submitted that the overlap perceived by the Tribunal was “illusory” as the matter weighing in the Applicant’s favour under paragraph 9.1 of Direction 99 (legal consequences of the decision) was the prospect of involuntary detention, whereas the consideration under paragraph 9.2 (impediments to removal) concerned the harm the Applicant would face if returned to South Sudan.

77    Accordingly, so the Applicant submitted, the Tribunal had failed to consider each paragraph of Direction 99 according to its terms, as the statutory task demanded. The alternative submission was that the weighing exercise was unreasonable given that the Tribunal had taken into account, against the Applicant, his criminal offending in addressing both paragraph 8.1 (protection of the Australian community) and paragraph 8.5 (expectations of the Australian community) of Direction 99, but had not double counted matters that were favourable to the Applicant.

78    The Minister contended that the Applicant’s ground of appeal involves misreading Ismail, and the Tribunal’s reasons. In relation to Ismail, the Minister submitted that (emphasis in original):

In Ismail, the High Court relevantly dismissed an argument that separate but overlapping considerations necessarily involved “repetitious weighing” or “double counting”. Nothing in Ismail suggests that a Tribunal is required to apply and give weight to each consideration notwithstanding overlap with other considerations. Put differently, the High Court did not require the repetitious weighing of overlapping considerations.

79    The Minister submitted that what was recognised in Ismail was that a single factual circumstance (the nature of the offending in that case) could be relevant to a range of functionally different considerations, and that there was no impediment to a factual matter of that kind being considered in respect of more than one consideration.

80    The Minister submitted that the Tribunal’s approach was consistent with a long line authority, to the effect that a decision-maker is not usually required to take a matter into account repetitiously (relying on Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26] (Perram J); Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40] (Tracey J); RZSN v Minister for Home Affairs [2019] FCA 1731 (RZSN) at [60] (Anderson J); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 1; [2021] FCAFC 97 at [40]–[41] (the Court); WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [78] (Derrington J); and XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 at [53] (the Court)).

81    The Minister also submitted that the Tribunal’s reasons show that, contrary to the Applicant’s submission, the Tribunal did consider matters beyond the existence of protection obligations, as it considered matters such as the Applicant’s age, health, availability of family support and other matters in relation to the impediments to return. Conversely, and as the Minister submitted orally, the Tribunal considered matters relating to the prospect of the Applicant deciding to return to South Sudan voluntarily, including (T [126]) the harm he would face if returned to South Sudan. That consideration then contributed to the Tribunal’s conclusion (T [129]) that the likelihood was that the Applicant would remain in indefinite detention, which was a matter to which the Tribunal accorded significant weight.

82    The Minister relied on the Tribunal not having accorded limited weight to that consideration only because of the overlap, noting that it was not a primary consideration, and because the Applicant was adamant that he would not voluntarily return to South Sudan.

83    The Minister submitted that the Applicant’s complaint was ultimately one about weight, which was quintessentially a matter for the Tribunal which, on the Minister’s submission, gave clear, intelligible and justifiable reasons for the weight it placed on the various considerations.

84    In my view, the Tribunal’s approach was not contrary to Ismail. In Ismail, the High Court said (at [44]):

Considerations which overlap (such as the consideration of the same acts of family violence in the different contexts of the protection of the Australian community, the views or policies of the Australian Government, and the expectations of the Australian community), by definition, are not wholly coextensive with each other. Weighing the relevance of the same acts of family violence in each different (albeit overlapping) context is not “repetitious weighing” or “double counting”, and it would be wrong to conceptualise such a process of reasoning as irrational, illogical, or legally unreasonable.

85    As the Minister pointed out, in Ismail, the High Court rejected a contention that taking the same factual matter into account in respect of more than one consideration involved error; it did not mandate that matters be weighed repetitiously.

86    Secondly, there can be no suggestion that the Tribunal did not adhere to the requirements of Direction 99. While decision-makers are not required to structure their reasons by reference to headings and sub-headings that marry up with the terms of the applicable direction (from time to time) (see, eg, RSZN at [60]), the Tribunal here gave clear and direct consideration to the “extent of impediments if removed” consideration.

87    Further, there can be no complaint about how the Tribunal evaluated that consideration, in terms of whether it supported revocation, tended against revocation or was neutral. The Tribunal concluded (T [135]) that the extent of impediments consideration weighed in favour of revocation.

88    What the Applicant takes issue with can only be the weight that the Tribunal accorded that consideration. The Tribunal did not give the “impediments to removal” consideration no weight; rather, it gave that consideration “limited weight in its own right”. The Tribunal determined to accord that consideration weight in that way for three identified reasons: first, the fact that the “impediments to removal” is an “other” (and not primary) consideration; secondly, the impediments if removed was a matter that was integral to the “legal consequences” consideration, to which significant weight had already been attributed; and thirdly, because the Applicant’s current position was that he would not voluntarily return.

89    Even the last of those reasons alone would have provided sufficient justification for the Tribunal’s finding on weight, as being one that was not legally unreasonable.

90    Moreover, I do not accept that the Tribunal erred in also taking into account the overlap to which it referred. As the passages of the Tribunal’s reasons addressing the legal consequences of the decision expose, the Tribunal did take into account the “real risk of significant harm” to the Applicant if he should return to South Sudan. That risk was identified by reference to the protection finding that was made in relation to the Applicant, which, of its nature, would have been addressed to harms of a very serious kind, going beyond matters such as a lack of family support in South Sudan, which were considered by the Tribunal in relation to the “impediments to removal” consideration. Nevertheless, the harm to which the Applicant would be exposed if he returned to South Sudan was considered by the Tribunal in relation to the legal consequences of the decision, and, consistent with the authorities referred to at paragraph 80 above, there was no error in the Tribunal approaching weight on a basis that took into account that overlap.

91    Nor, in my view, was the Tribunal’s approach legally unreasonable due to any inconsistency in approach. The Applicant accepted that the Tribunal’s approach to paragraphs 8.1 and 8.5 of Direction 99 was consistent with Ismail. The Tribunal’s approach to paragraphs 9.1.1 and 9.2(1) of Direction 99 was also an approach that was open to it, and did not involve error.

Associate:

Dated:    28 March 2024