Federal Court of Australia

NMQG v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 802

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

3.    Within three working days of the date of these orders the second respondent is to provide to the Court an indication of whether they wish to be heard with respect to the costs order made in order 2 above.

4.    If, pursuant to order 3, the second respondent wishes to be heard with respect to the costs order made in order 2 above, then:

(a)    By 4:00pm AEST on 17 July 2025, the parties are each to file written submissions of no more than three pages confined to the question of costs; and

(b)    Costs will be determined on the papers.

5.    Pursuant to order 3 above, if the second respondent does not wish to be heard with respect to costs, the applicant must pay the second respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    This is an application for judicial review of the decision of the Administrative Appeals Tribunal to affirm the decision of a delegate of the Minister not to revoke the cancellation of the applicant’s visa, made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (non-revocation decision).

background

2    The applicant was born in the United Kingdom (UK), is currently 53 years old, and has resided in Australia for almost 45 years. He previously held a Class BF Transitional (Permanent) visa. He has a considerable criminal history associated with a lengthy and entrenched addiction to drugs.

3    On 26 May 2023, a delegate of the Minister cancelled the applicant’s visa, pursuant to s 501(3A) of the Act. On 12 June 2023, the applicant sought revocation of this decision. A different ministerial delegate decided not to revoke the decision on 19 March 2024. The applicant was notified of this decision, and on 28 March 2024, sought review before the Tribunal. The matter was heard by the Tribunal on 30 May 2024, and the applicant was represented at the hearing. On 12 June 2024, the Tribunal affirmed the non-revocation decision (Tribunal Decision or TD).

4    For the reasons that follow, I dismiss the applicant’s application.

legislative framework

5    The relevant sections of the legislation are ss 501(3A) and 501CA(4) of the Act. Section 501(3A) relates to the refusal or cancellation of a visa on character grounds, and s 501CA(4) enables the revocation of a decision to cancel a visa under s 501(3A) of the Act.

501 Refusal or cancellation of visa on character grounds

…

(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.

6    Relevantly, s 501CA(4) of the Act states:

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

…

(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.

7    Section 499(2A) of the Act provides that a “person or body” must comply with ministerial directions made under s 499(1) of the Act. The relevant direction is Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction). Clause 5.1(4) of the Direction states that the Direction is intended to assist decision-makers who perform functions or exercise powers under ss 501 and 501CA of the Act. Clause 6 of the Direction requires that a decision-maker consider the factors listed in cl 8 and cl 9, where relevant.

8    Primary Considerations are listed in cl 8 of the Direction, as follows:

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.

9     Other Considerations are listed in cl 9 of the Direction, as follows:

(1)    In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on victims;

d) impact on Australian business interests

10    Specifically relevant to this application is cl 9.2 which reads:

9.2    Extent of impediments if removed

(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.

legal principles

11    In Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516; [2023] FCAFC 116 at [95], the Full Court noted in relation to the previous Direction No. 90 that:

The words “where relevant” in para 6 indicate that the duty to take into account the specified considerations is not an invariable one. Whether they are “relevant” in a particular case is a matter of opinion for the individual decision-maker.

(Citations omitted.)

12    The Full Court in DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 1; [2021] FCAFC 97 at [39] also noted with respect to a different earlier Direction No. 79 that:

It follows from the above conclusion that it is strictly unnecessary to decide the question of whether the Appellant made representations concerning the impact of a decision not to revoke the cancellation on Ms J as a victim. However as this was argued, we consider it appropriate to express our findings in relation to this contention. The Minister correctly submitted that the Other Considerations in Direction No 79 need only be taken into account by the Tribunal “where relevant”: Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 (Greenwood, McKerracher and Burley JJ) at [52]. What is “relevant” to a decision under s 501CA of the Act depends in part on the representations made by the applicant for revocation. The Tribunal is required to consider those representations for the purposes of deciding whether they are satisfied there is another reason why the visa cancellation should be revoked: Navoto v Minister for Home Affairs [2019] FCAFC 135, [88] (Middleton, Moshinsky and Anderson JJ).

(Emphasis in original.)

13    Therefore, there are no definitive boundaries to the relevance of a consideration in cl 8 and cl 9 of the Direction.

14    What is required for the applicant to succeed is set out in CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318; [2022] FCAFC 124 at [91] as follows:

In M1, the majority endorsed the approach taken in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496 at [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]), which grounded the reasoning in NABE at [55], [60]–[61], [63]–[65], [68]. That approach provides that a decision-maker’s failure to respond to a “substantial, clearly articulated argument relying on established facts” (Dranichnikov at [24]) can amount to a failure to afford procedural fairness or a constructive failure to exercise jurisdiction. The majority also observed at [25], citing Dranichnikov at [78], that a decision-maker “is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them”. The words “clearly arise” reflects the language used in NABE at [60].

15    The representations must be “significant and clearly expressed”: GBV18 v Minister for Home Affairs (2020) 274 FCR 202; [2020] FCAFC 17 at [32].

16    In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 the majority of the High Court stated at [25]:

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. 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.

(Footnotes omitted.)

17    What amounts to a “substantial, clearly articulated argument relying on established facts” (see CKT20 at [91]) in the context of information before the Tribunal concerning the “applicant’s health in connection with substance abuse issues in the context of its consideration of the extent of impediments that he or she may face if removed from Australia” has been the subject of a number of judgments before the Court: Belmont v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 667 at [63]. It is now accepted that a broad view of a person’s health should be adopted including any “underlying” conditions and management of earlier injuries, as articulated in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 179 ALD 217; [2022] FCA 1126 at [12], and specifically includes “mental wellbeing” as affirmed in Manebona at [100].

18    The Full Court in Manebona at [112] – [113] referred to the highly fact-dependent nature of the inquiry:

The appellant relies on Holloway, where Colvin J held at [12]:

Within ordinary parlance, a person’s status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person’s overall health.

That proposition may be accepted as generally true, but 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. The answer may turn on matters including any information about the nature and extent of the “substance abuse” problem, whether it presently exists and if not, the risk of relapse.

19    In the recent case of Belmont, upon which the applicant relied, Horan J undertook an extensive review of recent cases at [64] – [87]. After traversing numerous cases his Honour ultimately concluded at [82] and [86] that:

This survey of previous decisions illustrates that the question of whether or not the Tribunal failed to have regard to a mandatory relevant consideration under para 9.2(1)(a) of the Direction, or whether the Tribunal misunderstood or misinterpreted that paragraph, will ultimately turn on the facts of each case: see eg Ibrahim at [15]; Manebona at [113].

…

Although previous cases in which similar issues have been addressed may provide guidance as an illustration of the application of principles to particular facts, care should be taken not to treat the outcomes of individual cases as establishing fixed categories that govern or control the case at hand: compare eg CRS20 v Secretary, Department of Home Affairs [2024] FCA 619 at [82] (Wheelahan J), and the discussion therein. Some cases might involve the Tribunal asking the wrong question by misconstruing the terms of para 9.2(1)(a) of the Direction: see eg Holloway. Other cases will involve an analysis of the material before the Tribunal to ascertain whether a health-related issue was clearly raised as a possible impediment that may be faced on removal, and a construction of the Tribunal’s reasons to determine whether any such issue was taken into account. For such purposes, it is accepted that drug and alcohol addiction and other substance abuse issues are capable of being regarded as an aspect of a person’s health within the meaning of para 9.2(1)(a): Holloway at [12]. Such health issues, including the risk of relapse into drug and alcohol abuse, are capable of presenting impediments within the meaning of para 9.2(1)(a), that is, “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)”.

20    It is therefore clear that whether there was a “substantial, clearly articulated argument relying on established facts” (see CKT20 at [91]) to which the Tribunal failed to respond is dependent on the facts and circumstances in each case. As well, the reasons of the Tribunal, “read as a whole”, must be considered: Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509; [2022] FCAFC 115 at [110].

tribunal decision

21    Before the tribunal the issue at hand was identified as “whether there is ‘another reason’ why the cancellation [of the applicant’s visa] should be revoked”: TD at [4]. There was no doubt that the applicant had failed the character test under s 501(6) of the Act, based on his substantial criminal record: TD at [4].

22    The Tribunal listed the details of the applicant’s “continuous career of offending”, which began in 1991 at the age of 19, at [15] of its reasons. This offending included 80 convictions, spread across such offences as “trafficking and possessing dangerous drugs, possessing weapons, assaulting police, stealing, trespassing, damaging police property, and breaking and entering into property”: TD at [15]. The Tribunal elaborated upon the applicant’s “violent” crimes at [18] of the TD including as follows:

…

•    Assault occasioning bodily harm, convicted on 3 February 1993;

•    Assault occasioning bodily harm whilst in company and armed with an offensive weapon, convicted on 22 October 1993;

•    Assault/obstruct police officer in performance of duty, convicted on 3 December 1997;

•    Assault police officer, convicted on 18 April 2019; and

•    Serious assault – assault/resist/obstruct police officer/person acting in aid of police officer, convicted on 18 April 2019.

23    The Tribunal also summarised the applicant’s significant history of serious drug-related convictions at [21] – [24] of the TD.

24    The Tribunal considered that the applicant’s drug addiction was a substantial factor in his history of offending, while noting that his offending went beyond drug-related offences: TD at [26].

25    The Tribunal had regard to the applicant’s contention that he presents a substantially reduced risk of recidivism but found that his repeated historical statements, since 2002, which claimed that “his problems with drugs are in the past”, were unconvincing based on his continued reoffending: TD at [45] – [49].

26    As is discussed more fully below, the Tribunal also considered evidence from Dr Steven Morgan, a Registered Psychologist, who submitted a report, dated 22 May 2024, and gave oral evidence at the applicant’s hearing: TD at [50]. Dr Morgan’s evidence indicated that the applicant had taken steps towards addressing his drug dependency, but that he remained “within the ‘medium-range’” for recidivism risk: TD at [50] – [51]. The Tribunal also considered a 2022 report by Dr Jacqueline Yoxall, another psychologist, whose views were broadly consistent with those of Dr Morgan: TD at [51].

27    The Tribunal was not convinced that the applicant’s family support would prevent him from reoffending, nor was it satisfied that steps taken towards rehabilitation by the applicant would be durable such as to mitigate the risk of recidivism, particularly outside a “controlled environment”, although considered that those steps “should be afforded some weight”: TD [54] – [59].

28    The Tribunal concluded that Primary Consideration 1, under cl 8(1) of the Direction, “confers a very heavy level of weight against the revocation of the mandatory cancellation of the Applicant’s visa” based on his long-term, serious, violent and repeated offending and the risk he presented to the Australian community: TD at [60] – [61].

29    In respect of Primary Consideration 2, the Tribunal considered the evidence that the applicant had been subject to a Temporary Protection Order, made on 5 January 2007, regarding a previous partner: TD at [64]. However, as the Tribunal pointed out “[n]either party was able to provide any tangible evidence with respect to this incident”: TD at [66]. On this basis, the Tribunal found there was “insufficient evidence to support a finding in relation to this Primary Consideration 2 and will treat it as neutral”: TD at [67].

30    The Tribunal then considered Primary Consideration 3. The Tribunal listed the applicant’s family for the purpose of Primary Considerations 3 and 4 at [68] of the TD, as follows:

…

Immediate family members:

•    MX, the Applicant’s partner;

•    Margaret, the Applicant’s mother;

•    AX, the Applicant’s minor biological son (aged eight years);

•    Ms Tabitha Jones (the Applicant’s step-daughter);

•    Ms Jessica Jones (the Applicant’s step-daughter);

•    An infant step-grandson; and

•    Neil (the Applicant’s brother).

Extended family members:

•    Hugo (the Applicant’s father-in-law).

31    The Tribunal identified that “a key aspect of this consideration will be the impact this decision will have on the Applicant’s nuclear family, including his biological child”: TD at [70].

32    The Tribunal concluded that evidence from the applicant’s partner, who is the mother of his son, and his step-daughters and brother indicated that he is supported by, and important to, his family: TD at [73] – [76].

33    The Tribunal considered that the applicant has substantial family ties in Australia, given his son and step-grandson are both citizens or permanent residents, and that, as a result of volunteering and employment in Australia he also has strong social ties: TD at [77], [79] – [80]. These factors were given positive weight. As well, the Tribunal noted, favourably to the applicant, that he had been in Australia since he was 8 years old, had spent “a significant portion of his formative years here” and not commenced offending until he was 19 years of age: TD [82] – [84].

34    Consequently, the Tribunal concluded that “Primary Consideration 3 is of a heavy level of weight in favour of exercising the power to revoke the mandatory cancellation of the Applicant’s visa”: TD at [85].

35    The Tribunal then turned its attention to Primary Consideration 4 and identified the relevant minor children as the applicant’s son and step-grandson: TD at [86]. The Tribunal’s view was that although it appeared to be in the best interests of his son that the applicant remain in Australia, this had to be viewed in the context of the applicant having exposed his son to criminal activity and drug use: TD at [89] – [92]. On the basis that the applicant had maintained contact with his son electronically in the past the Tribunal was of the view that that could continue should the applicant be removed: TD at [93].

36    As the applicant had not yet met his step-grandson, the Tribunal concluded that “there is no evidence that the Applicant has played or will play a parental role in this child’s life”: TD at [94].

37    Given the evidence, the Tribunal concluded that “Primary Consideration 4 weighs heavily in favour of revoking the mandatory cancellation of the Applicant’s visa”: TD at [95].

38    In relation to Primary Consideration 5, the Tribunal stated at [98] that:

98.     This Applicant has breached the Australian community’s expectations by the nature of his criminal offending in this country. Therefore, the Australian community, “as a norm” expects the Australian Government not to allow him to remain in Australia.

(Emphasis in original.)

39    As the applicant’s offending against police officers is encompassed by cl 8.5(2)(d) of the Direction, the Tribunal noted that the “Australian community would expect that the Australian Government can and should cancel the Applicant’s visa”: TD at [100].

40    The Tribunal then considered whether any modifying factors existed, which would change the Australian community’s expectations, as per cll 5.2(4), (5) and (6) of the Direction: TD at [101]. The Tribunal considered that the applicant’s formative years in Australia, established roots, and the extent of time spent in Australia may result in increased community tolerance towards his conduct: TD at [103] – [105]. Nonetheless, the “seriousness” of his conduct and his crimes against police outweighed these “countervailing considerations”: TD at [106] – [107].

41    The Tribunal concluded that “Primary Consideration 5 confers a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa”: TD at [108].

42    The Tribunal then turned to the Other Considerations required under cl 9 of the Direction.

43    In respect of the “legal consequences of the decision” under cl 9(1)(a) of the Direction, the Tribunal noted that “there is no claim and otherwise nothing on the material to suggest, that Australia’s non-refoulment obligations are enlivened in respect of the Applicant”: TD at [110]. The consideration was allocated “neutral weight”: TD at [111].

44    In respect of the “extent of impediments if removed” under cl 9(1)(b) of the Direction, the Tribunal stated at [112] – [117]:

112.     Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and

(c)     any social, medical and/or economic support available to that non-citizen in that country.

113.     The Applicant may face emotional, practical and financial barriers upon returning to the UK. He is a 52-year-old man who has not lived in the UK since he was a child. In addition, the Applicant has confirmed that he does not suffer from any medical or psychological conditions.

114.     He did, however, raise the following concerns he will face returning to the UK:

I don’t know a single person in [the UK] … it will be hard for me to gain employment … not knowing anyone. [A]t least in Australia, I already have people that will employ me once im [sic] released.

115.     Further, the Applicant has described the following problems he would face if returned to the UK:

Housing, employment, not knowing anyone there.

116.     The UK is culturally and linguistically similar to Australia, meaning that the Applicant will not likely face any language or cultural barriers hindering his re-settlement there. With that said, I accept that the Applicant may face some practical difficulties in re-establishing himself in the UK, given the relative absence of familial or social links for the Applicant in that country. In re-settling there, the Applicant may face financial hardship in the short to mid-term, including difficulty in securing employment (noting that he is someone with an extensive criminal record). However, this difficulty may be alleviated by virtue of the Applicant’s volunteering and employment history. The Respondent has also noted that he may be eligible for social security payments and can obtain medical care through the National Health Service.

Findings on impediments

117.     A consideration of the extent of impediments if removed leads me to the conclusion that some weight should apply in the Applicant’s favour due to his age, the period of time he has spent in Australia and the lack of social and familial support options. Therefore, I am of the view, and find, that Other Consideration (b) confers a minimal level of weight in favour of revocation of the mandatory cancellation of the Applicant’s visa.

(Emphasis in original and footnotes omitted.)

45    Regarding the final two Other Considerations, namely “impact on victims” under cl 9(1)(c) of the Direction and “impact on Australian business interests” under cl 9(1)(d) of the Direction, the Tribunal stated that neither party had raised anything of relevance in respect of them, and that both would be considered “neutrally”: TD at [118] – [119].

46    Ultimately, the Tribunal affirmed the decision made by the respondent’s delegate to “not revoke the mandatory cancellation of the Applicant’s visa”: TD at [125].

Ground of review

47    The applicant’s ground of review is as follows:

Grounds of Application

1.    The Administrative Appeals Tribunal (Tribunal) erred jurisdictionally in its assessment of the ‘extent of the impediments if removed’ by:

(a)    misinterpreting or misapplying paragraph 9.2(1) of Direction 99 issued under s 499(1) of the Migration Act 1958 (Cth) (Act); and/or

(b)    failing to have regard to the legal consequences of the decision logically, rationally and reasonably and in the way required by s 501CA(4) of the Act.

Particulars

i.    Section 501CA(4) of the Act obliges a decision-maker to consider representations made by a former visa holder, including claims that arise on the materials before the decision-making.

ii.    Where a claim arises concerning a health-related issue, such a claim is to be considered by the decision-maker in relation to the impediments faced by the former visa holder if removed, under paragraph 9.2(1) of Direction 99 (Belmont v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 667).

iii.    Before the Tribunal, two expert reports, those of Drs Jacqui Yoxall and Steve Morgan, articulated the Applicant’s ongoing health concerns, specifically his mental ill-health and drug addiction.

iv.    Both Dr Yoxall and Dr Morgan identified support and intervention as necessary in responding to the Applicant’s ongoing health concerns.

v.    Having similarly been raised by the Applicant during the hearing of the matter, the Tribunal accepted the existence of the health concerns, in particular, the Applicant’s ongoing drug addiction: (Tribunal Reason’s [26], [46], [50], [55], [57]).

vi.    The Tribunal addressed the extent of the impediments the Applicant would face if removed, in its reasons: TR [112] – [117].

vii.    However, it found that the Applicant did not suffer from ‘any medical or psychological conditions’: TR [113]. No consideration was given to the Applicant’s mental ill-health and/or drug addiction, as health related issues that would create impediments in establishing himself if removed from Australia.

viii.    To reason in that way was to misinterpret or misapply paragraph 9.2(1) of Direction 99, requiring as it does a consideration of the ‘non-citizen’s…health’ (9.21(a)) and the ‘medical…support available to them’ (9.21(c)).

ix.    Further or alternatively to particular viii, to reason in that way was to fail to have regard to the legal consequences of the decision logically, rationally and reasonably and in the way required by s 501CA(4) of the Act.

x.    The error in particulars viii and/or ix was material.

(Emphasis in original.)

48    The applicant and the Minister agreed that the crucial question before the Court was “whether, on the materials before the Tribunal, a claim or claims, concerning the Applicant’s health, arose in such a way as to require consideration by the Tribunal”.

Material before the Tribunal

49    The applicant claimed that evidence produced in written and oral forms at his hearing indicated to the Tribunal that a “substantial, clearly articulated argument relying on established facts” had been raised, with regards to the extent of impediments to the applicant’s health, which he may face, if removed: CKT20 at [91].

50    According to the applicant that argument emerged from the following material which was before the Tribunal:

(1)    Psychological Reports

(a)    Report of Dr Yoxall; and

(b)    Report of Dr Morgan

(2)    Oral Evidence

(a)    The applicant; and

(b)    Dr Morgan

(3)    Statement of Issues, Facts and Contentions (SoFIC)

(a)    Applicant’s SoFIC; and

(b)    Minister’s SoFIC

(4)    Written Closing Submissions

(a)    Applicant’s submissions; and

(b)    Minister’s submissions.

51    Also before the Tribunal, and referred to in its reasons, was the applicant’s indication (on his Personal Circumstances Form which was footnoted in the reasons) that he had no diagnosed psychological or medical conditions: TD at [113].

52    The report of Dr Yoxall, upon which the applicant relies, is dated 23 November 2022 and was prepared for sentencing purposes. Dr Yoxall’s clinical opinion included that the applicant had a “substantial history of dual diagnosis of mood disorder (most likely DSM5 Major Depressive Disorder) and illicit drug dependence”. In Dr Yoxall’s opinion the disorders were interconnected in that the applicant “self-medicated” his depression with drugs which in turn exacerbated his depression. Dr Yoxall considered that the applicant’s reliance on illicit drugs drove his offending. Dr Yoxall noted that, as at the date of the report, the applicant had been able to avoid illicit drugs for 21 months, his longest period without drugs. Dr Yoxall observed that while such abstinence had been achieved in a “controlled environment” (incarceration) drugs did enter the prison system. It could be described as a “sustained remission”.

53    In the context of ongoing imprisonment Dr Yoxall opined:

… He requires specialised treatment that he cannot access in prison. This includes specialised drug rehabilitation – preferably in a residential setting – alongside psychological and psychiatric intervention to treat the vulnerability to MDD. If he remains in prison for a sustained period of time, and has long term separation from his son, he will be vulnerable to psychological decompensation given his history of MDD.

54    In the context of the likelihood of the applicant reoffending Dr Yoxall’s view was:

… Community resources to support ongoing abstinence will be vital. This is likely to include regular drug counselling, attendance at NA meetings, establishment of a prosocial support group, and review of relapse plan on a regular basis … Engagement in ongoing psychological and psychiatric treatment to treat the MDD is critical, particularly given that he previously self-medicated against aspects of MDD.

55    Dr Morgan’s report is dated 22 May 2024. It was prepared for the purpose of the applicant seeking revocation of his visa cancellation. That report set out the applicant’s current circumstances, background and history and relevantly included that the applicant had reported an historical diagnosis of depression (or perhaps bipolar affective disorder) and that he had in the past been treated with “psychiatric/anti-depressant medication” although he was currently taking no psychiatric medication. At the time of Dr Morgan’s assessment, the applicant reported that his mood was “stable” and that he had not been experiencing anxiety. With respect to the applicant’s future plans, and specifically were he to be returned to the UK, Dr Morgan relevantly stated:

[The applicant] lamented that deportation would return him to a country that he lacks any historical or contemporary understanding of – as he left at the age of eight and denied subsequent post-migration associations or affiliations. He was conscious of the linguistic and cultural commonalities between Australian [sic] and the United Kingdom, but nonetheless was apprehensive about a significant cultural challenge that could flow from a return to the United Kingdom.

[The applicant] thus disclosed having little clarity in regard to default plans for his removal to the United Kingdom, also anxiety for such an outcome on the basis of his lack of knowledge of the United Kingdom. He did not know which area of the United Kingdom he would live-in, nor what support could be available for him upon his return. He was also not aware of and denied any contact with any members of his extended family in the United Kingdom. He did hope that he would be able to find work, but did not know how to do so. Whilst he accepted that such an outcome, with attendant anxiety and stress, may amplify his risk of resuming illicit drug use, he expressed his confidence and hope that he would have sufficient skills, resolve and self-regulation strategies to avoid relapse if removed from Australia and returned to the United Kingdom.

56    As to Diagnosis and Prognosis, Dr Morgan’s report included as follows:

1, 2 & 3: Diagnosis and Prognosis.

Whilst the aetiology of and history of [the applicant’s] offending impresses as multifactorial in nature, I am drawn to the view of it being focally associated with polysubstance dependency, dominantly of Methamphetamine (but with historical polysubstance abuse and opiate dependency), also concurrent marked paucity of judgement and problematic contact with antisocial and drug-using associates (the latter inclusive of his partner … whom is his identified co-offender). He described his illicit drug possession and trafficking as influenced by his and his partners [sic] dependency, and efforts to support their dependency.

…This established, he did not impress as affected by mood disturbance at interview, also reported stable mental health and overall behaviour – that impresses as ameliorated to some extent by his described more mature and latterly responsible disposition. Evidence for this is manifest in his post-arrest (2021) custodial behaviour, with an absence of institutional breaches or incidents. Further, he advised progressing to low security classification, also sound custodial employment from 2021.

(Emphasis in original.)

57    Dr Morgan noted the progress made by the applicant since 2021, particularly with respect to his improved health – both mental and physical, and abstinence from illicit drug use. Dr Morgan acknowledged the applicant’s intention to remain drug free. Further to that Dr Morgan noted:

… He denied any likelihood of resuming illicit drug use and stated that he has been able to decline drug use and drug-using associations in custody with ease – and that he has not delivered any positive random urine test for illicit drugs. On this basis, I am drawn to an essentially optimistic view of his future prospects, however, so [sic] also note that such commitment is yet to be tested within the community.

58    Dr Morgan also observed that the applicant’s positive outlook was related to remaining drug free and would be sustained by ongoing oversight such as might be imposed upon him through parole conditions. He also stated that:

I note that, helpfully, alcohol and other treatment from a Queensland health or other agency his [sic] free of charge, as far [sic] Queensland corrective services group-based programs.

59    Regarding the impact that deportation would have on the applicant, Dr Morgan reported that:

Whilst in a generic way, his deportation would be inevitably viewed as an adverse outcome, it is not possible to offer an assertive view of its (essentially uncertain) impacts – as it is not clear what work, accommodation, health, fiscal of [sic] other support would be provided for him on his return by the United Kingdom government. He also discussed, by virtue of his incarceration, his limited capacity to gain meaningful information in this regard.

…

He thus disclosed having little clarity in regard to default plans for his removal to the United Kingdom. He thus appreciably described his potential return as “daunting”. To his credit, I also note that, whilst he accepted that such an outcome could induce anxiety and stress, also may conceivably amplify his risk of resuming illicit drug use, he expressed confidence that he would have sufficient skills, resolve and self-regulation strategies to avoid relapse if returned to the United Kingdom.

60    While giving oral evidence Dr Morgan was asked by the Minister’s representative about difficulties the applicant might face in maintaining abstinence from drugs and alcohol. Dr Morgan stated that he would be confident such would be possible if the applicant were released in the following circumstances:

… I think jurisdictional control would be very useful. I think for him to get work swiftly and to resume prosocial functioning – he has got a reasonable work history, as far as I’m aware – would be good. If his partner is able to retain abstinence as well. He advises that after a period of time he and his family would depart the Caboolture area to avoid antisocial associates. These are positive characteristics. He is well aware of the fact that he’s going to have to present random urine tests on a regular basis, and failure to do so will be presumed positive. He will be referred for programs, and – I feel very confident he will be referred for programs, and in the event he doesn’t comply with those or attend, it will be, again, a potential order breach.

61    In that context, Dr Morgan’s evidence also canvassed the possibility of further protective measures which might be employed with respect to the applicant, including a limited period of home detention after release, or that he might be released wearing an ankle monitor and subject to a curfew. When asked in re-examination to recommend any further conditions that could be placed upon the applicant upon his release Dr Morgan suggested participation in a further drug and alcohol program, seeing a psychologist for a period of time and random urine and breath testing.

62    The applicant’s SoFIC also linked the applicant’s offending with depression, and misuse of drugs and alcohol, stating “while the Applicant has a confronting criminal history, it reflects the pernicious consequences of a lifelong struggle with addiction”. In his written closing submissions the applicant stated, “the largest contributor to his criminal past was his addiction to drugs”.

63    The Minister’s SoFIC essays the reports before the Tribunal in relation to the applicant’s offending, referring in particular to aspects of reports prepared by Dr Yoxall. It also states, in the context of risk to the Australian community, that “[t]he Minister contends that the applicant has demonstrated a very limited ability to maintain sobriety in the community and his most recent rehabilitation efforts remain untested in the community”. As to the extent of impediments if removed, as is set out below, the Minister’s SoFIC included that the applicant “can obtain medical care through the National Health Service”. It also stated:

The Minister contends that the applicant may face some difficulty in re-establishing himself including emotional, practical and financial barriers upon returning to the United Kingdom, noting his immediate family and partner are based in Australia. The applicant is 57 years old. While the applicant has not lived in the UK since he was a child, there will be no language barrier and the cultural norms in United Kingdom [sic] are similar to those in Australia. Moreover, although the applicant is likely to face difficulty in obtaining employment in the United Kingdom, he may be eligible for social security payments and can obtain medical care through the National Health Service. The applicant has indicated he would suffer emotional hardship on return to the United Kingdom as a result of separation from his immediate family, which the Tribunal may weigh as a consideration in his favour: see 9.2 of Direction 99.

64    The Minister’s written closing submissions contained references to the role played by the applicant’s drug use and criminal behaviour and repeated the contentions of the Minister’s SoFIC with respect to any impediments if returned.

Submissions

65    The applicant framed his submissions by reference to the considerations outlined in Belmont and contended that the Court should “follow a similar approach”. The applicant contended that, as in Belmont, his health concerns (substance addiction and Major Depressive Disorder) clearly emerged on the materials, which health concerns indicated that he required ongoing medical care including clinical treatment and oversight, as identified by Dr Morgan, to mitigate the risk of recidivism. The applicant adopted the language of Horan J at [89] of Belmont, by suggesting that in the present circumstances, the Tribunal had also “clearly proceeded on the basis that the applicant was suffering from such a medical or psychological problem or condition…”. The applicant also relied upon a similar assertion at [90] of Belmont that his condition also “necessarily entailed a risk of relapse into substance abuse, particularly in the absence of appropriate clinical treatment and supervision”.

66    The applicant also submitted that the Tribunal’s error “sits comfortably” with the determination of Logan J in LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 at [27] as follows:

Indeed, so important was the subject of the applicant’s difficulties with alcohol to its reasoning process in respect of risk, it seems to me that the Tribunal on this occasion, and with all respect, has just forgotten that it was additionally necessary to advert to this health condition separately, as ministerially required, when addressing the requirements of [14.5]. Had the Tribunal addressed this subject, it may well have had to confront the discounting promoted in the reply submission on behalf of the applicant. It might also have had to confront the presence or otherwise of any medical facilities in Ethiopia to provide programs for rehabilitation or treatment of those with alcohol dependency disorder. A fair reading of the reference of the minister’s specification of health in his direction is that, necessarily, that reference embraces alcohol dependency disorder.

67    As to the process to be adopted, the applicant submitted that the Tribunal should have approached the matter by considering the claims of a health condition, made findings as to the impediments which might therefore arise under cl 9.2(1)(a) of the Direction and then allocate weight to that consideration.

68    The applicant submitted, correctly, that there were diagnoses of health conditions and that the absence of any reference to a health condition on his Personal Circumstances Form does not preclude him from raising a “substantial, clearly articulated argument relying on established facts” (see CKT20 at [91]) that he has a health condition which will amount to an impediment to establishing himself and maintaining basic living standards in the country to which he will be returned: Belmont at [88]; LRMM at [22] – [23]; WCGD v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 180 ALD 355; [2022] FCA 1419 at [32] – [33].

69    The applicant contended that his history of endeavours to rehabilitate himself, his current sobriety and his hopes and apprehensions about maintaining such sobriety should he be returned to the UK all clearly amount to the claim.

70    The applicant submitted that there was a substantial body of information before the Tribunal related to the applicant’s drug addiction, and as particularly considered in Dr Yoxall’s report, his Major Depressive Disorder, both of which are health concerns. The applicant submitted that the Court should draw from Dr Yoxall’s report the fact that the applicant had “two distinct, considered and explicit diagnoses from an expert” which required continuing “intervention and care”. The applicant submitted that Dr Morgan’s diagnosis of his drug-related health condition, although not identical to Dr Yoxall’s, still “sits comfortably” with it. The applicant submitted that these health conditions were “prospective” not “historical”.

71    Further, the applicant submitted, the claim included evidence from Dr Yoxall and Dr Morgan as to the need for future consistent support to maintain his abstinence and, on Dr Yoxall’s part, deal with his Major Depressive Disorder, and on Dr Morgan’s part, as to the types of protective factors that might assist the applicant to maintain his sobriety in the community.

72    The applicant next turned to the Tribunal findings with respect to recidivism and rehabilitation. They were such that, he submitted, it was clear that the Tribunal accepted there was an underlying cause to the applicant’s drug offending, that he had embraced recovery presently and into the future but was not convinced that that recovery was a sufficient bulwark against recidivism in light of previous relapses, and thus his history of a drug-related health condition and “propensity of relapse” continued to affect him because it contributed to the possibility of his visa cancellation not being revoked, drawing parallels with Belmont. The health issues therefore clearly arose on his materials, and were before the Tribunal, in the applicant’s submission.

73    In that context, the applicant contended that the Tribunal accepted his risk of recidivism and considered his drug addiction to be an underlying cause of his reoffending in the context of his risk to the community. However, by contrast when considering cl 9.2(1)(a) of the Direction, the Tribunal referred to the applicant’s confirmation that he had no medical or psychological conditions as per his Personal Circumstances Form and took no account of his health conditions more generally, nor the reports and diagnoses of Dr Yoxall and Dr Morgan, and thereby failed what he submitted were their “explicit consistent expert evidence diagnoses”.

74    The Minister accepted that “there was material before the Tribunal that indicated that the applicant suffered from substance abuse disorder and major depressive disorder”. However, in the Minister’s submission that is not sufficient to amount to a clearly articulated representation that the applicant would suffer impediments due to being returned to the UK, such that the Tribunal was obliged to consider that representation as per the Direction.

75    The Minister further submitted that “no evidence, representation, [or] established fact” had arisen before the Tribunal which indicated the impediments that the applicant may face if removed to the UK, and the “the lack of any facilities, services, treatment options that the UK might be able to offer a person” in the circumstances.

76    The Minister relied upon DKN20 at [39], which is reproduced at [12] above.

77    As to that, the Minister submitted, that part of Dr Morgan’s report set out at [55] above indicates that the applicant had expressed confidence that he would not relapse were he to be returned to the UK. On the Minister’s case, no clear claim was made regarding the applicant’s health conditions amounting to an impediment to him establishing himself or maintaining basic living standards. The representations, particularly those made by Dr Morgan, were somewhat inconsistent. On the one hand, the representations reflected the applicant’s confidence in his ability to manage his substance abuse. On the other hand, the representations expressed Dr Morgan’s views as to the desirability of “jurisdictional control” to assist the applicant in maintaining sobriety were he to be released into the Australian community. Ultimately Dr Morgan concluded that he was optimistic about the applicant’s prospects of not returning to illicit drug use, even in the face of any uncertainty and strain occasioned by the applicant returning to the UK and despite the untested nature of this in the community. Dr Morgan’s report targeted the applicant’s risk with respect to recidivism, and in any case, his observations regarding the applicant’s sobriety being assisted by post-release conditions were directed to any such sobriety in Australia. There is no specific mention of any impediments the applicant might face. Indeed, Dr Morgan’s ambivalence about the applicant’s circumstances in the UK are set out in his report as follows:

6. The impact deportation would have on our client; and other relevant mitigating

matters

Whilst in a generic way, his deportation would be inevitably viewed as an adverse outcome, it is not possible to offer an assertive view of its (essentially uncertain) impacts – as it is not clear what work, accommodation, health, fiscal of [sic] other support would be provided for him on his return by the United Kingdom government…

(Emphasis in original.)

78    The Minister contended that there was “a significant difference in the quality of the evidence that came forward about the nature of that health condition”, being the applicant’s substance abuse and that the Tribunal had “followed the path that was laid by the parties in their submissions”.

consideration

Arising on the Materials?

79    As set out above, the applicant must establish that there was a “substantial, clearly articulated argument relying on established facts”: CKT20 at [91]. The obligation which arises under cl 9.2 of the Direction depends upon “the nature, form and content of the representations” and the “requisite level of engagement” depends upon “the length, clarity and degree of relevance of the representations”: Plaintiff M1/2021 at [25].

80    Dr Yoxall’s report provided no opinion as to the impediments that the applicant might face were he returned to the UK. The report was prepared prior to the cancellation of the applicant’s visa, and for the specific purpose of a sentencing. Although Dr Morgan’s report was written in contemplation of the applicant’s application to the Tribunal for review of the non-revocation decision it likewise did not point to any impediments the applicant might face in the event he was returned to the UK. Both Dr Yoxall’s and Dr Morgan’s reports, and any recommendations they made, were written from the perspective of managing risk.

81    As to Dr Morgan’s report, it is true that it was written “in connection with the applicant’s attempts to revoke the cancellation of his visa.” However, no representations were made about potential impediments the applicant may face with regards to his health, should he be removed. Dr Morgan observed that the applicant was confident that he would not fall back into drug use even if returned to the UK, notwithstanding that such a move would itself be stressful and produce anxiety, in turn increasing the likelihood of the applicant returning to drug use. As the Minister correctly submitted Dr Morgan himself was optimistic about the applicant’s prospects of remaining abstinent, despite such abstinence being as yet untested in an uncontrolled environment. Dr Morgan made no mention of concerns that the applicant’s health would prevent him from returning to the UK. Nor did he, in considering the applicant’s drug dependency and other conditions, and their impact upon the risk he presents, express a view as to any impediments which might arise should the applicant return to the UK. Rather the report was confined to what support the applicant might need in order to avoid resuming drug use and thereby limiting his risk of recidivism in Australia. To the extent that Dr Morgan’s report dealt with the impact of a possible return to the UK it was inconclusive in stating that “it is not possible to offer an assertive view of its (essentially uncertain) impacts” and that the impact of deportation could only be viewed in a “generic way” as “an adverse outcome”, given that there is no evidence about “what work, accommodation, health, fiscal of [sic] other support would be provided”. Thus, Dr Morgan’s report is at best inconclusive with respect to any impediments the applicant may face with respect to his health, if returned to the UK.

82    Dr Morgan’s oral evidence at the Tribunal hearing largely reiterated his written report. While the applicant submitted that Dr Morgan’s oral evidence spoke to “the need for ‘jurisdictional control’ to assist the Applicant in maintaining abstinence” and advocated for the applicant to participate in drug and alcohol programs and seek psychological healthcare “for a period of review” upon release, they were all recommendations squarely made in relation to minimising the prospect of the applicant’s resumption of drug use in the context of reducing his risk to the Australian community.

83    It is true that the parties’ respective SoFICs draw attention to the applicant’s drug addiction and mental health, but they do not create a link between these health concerns and any impediment the applicant may face, if deported.

84    The Minister’s closing submissions considered the extent of impediments largely by referring to the Minister’s SoFIC which had not considered the applicant’s health conditions an impediment to his removal. However, the Minister’s closing submissions did address the applicant’s drug addiction with respect to his risk of recidivism particularly. The applicant’s closing submissions drew attention to the applicant’s health, in respect of his drug addiction and mental health. However, neither closing submissions created a link between these health concerns and any impediment the applicant may face, if returned.

85    Furthermore, a mere assertion of drug dependency and mental health disorders does not engage with the question of whether the applicant faces any impediment to his health (and treatment) in another country. Simply because there is evidence of substance abuse and depressive disorders before the Tribunal does not mean that it must consider them in the context of cl 9.2(1)(a) of the Direction. That approach was, in my respectful view, correctly rejected by Derrington J in GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468. In that case his Honour found that no claim clearly emerged on the material with respect to cl 9.2 of the relevant direction at [74] of GXXS. However, his Honour discussed the approach to be taken if such a claim did emerge respectively at [54], [60] – [62] of GXXS as follows:

The incomplete nature of any issue emerging under cl 9.2

Even if it were assumed that the evidence or material before the Tribunal raised an issue of the applicant’s health, including that he suffered from some addiction to alcohol, that would be insufficient to make cl 9.2 a relevant consideration. This is a major flaw with the applicant’s main ground of review. It is, with respect, an error to construe cl 9.2 as having the consequence that if some evidence emerges that an applicant has an adverse health condition, is of a certain age, is of a particular culture, or speaks a particular language, the decision-maker is automatically required to undertake an inquiry into the other elements of the clause and then reach some conclusion about it. However, the applicant’s submissions proceed upon such an implicit assumption. They suggest that because an issue arose as to his use of alcohol the Tribunal was then bound to independently assess the impact of that on his earning capacity, ascertain the level of social, medical or economic support available in New Zealand, identify the basic living standards available to New Zealanders and, in the light of those matters, determine whether and to what extent the alcohol use would impede him in maintaining similar basic living standards. That is not how cl 9.2 or the Direction operates.

…

Qualitative comparisons between Australia and the home country

As is apparent from the above discussion, it is also necessary that there be some evidence or material to demonstrate there is some qualitative difference between the circumstances in Australia and those in the applicant’s home country. Although Mr Donnelly submitted that there was authority for the proposition that no such comparison should take place, none was produced and it is apparent that cl 9.2 can only become a relevant issue if the impediments may exist in the applicant’s own country and not in Australia.

The issue to which the matter in cl 9.2 is directed is whether there is another reason why the cancellation decision should be revoked. Clause 9.2 is obviously directed to the personal hardships in terms of living conditions which the applicant may face if they were to be returned to their home country. As such, they could only weigh in the applicant’s favour if the applicant’s prospect of maintaining a basic standard of living there were impaired. If, for instance, the issue was concerned with the applicant’s health but the public health services in the applicant’s home country were at least equal to those in Australia the issue could, at best, be only neutral for the applicant. In the context of ascertaining whether there was another reason why the cancellation decision should be revoked, it could not be a factor in favour of the applicant that any impediments to establishing and maintaining themselves in their home country due to medical or other support, are the same or less than they are in Australia.

Therefore, in order for the issue under cl 9.2 to be positively raised or to clearly emerge and to be relevant to the decision-maker’s deliberation, there would need to be some evidence of the reduced availability of social, medical or economic support in the applicant’s home country when compared to Australia. The importance of this was averted to by Robertson J in Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296, 310 [68] – [69]:

[68]     When addressing the extent of impediments if the applicant were removed, the Tribunal noted that there was no specific evidence of any social, medical and/or economic support available to Mr Uelese in either New Zealand or Samoa, but said: “I take into account that at least in New Zealand Mr Uelese would have access to government benefits similar to those available to him in Australia”.

[69]    In my opinion, that statement is no more than a broad proposition as to the availability of government benefits in New Zealand and not one that required evidence as to the amount of a benefit, the terms and conditions of that benefit or the eligibility criteria for that benefit. The applicant did not put forward to the Tribunal that the non-availability of welfare benefits constituted an impediment which he may face if removed from Australia. I also note that the applicant before me has not put forward any material which suggests that the Tribunal was mistaken in its statement. In any event, I am not satisfied that, in the circumstances, the Tribunal’s statement could constitute jurisdictional error.

(Emphasis added).

(Emphasis in original.)

86    In this case the material relating to the applicant’s alcohol usage did not rise to the level of a health-related issue relating to alcohol dependency (see GXXS at [48]) but even if it had, there was no evidence or material to suggest that the applicant may face an impediment in establishing himself and maintaining basic living standards in his home country, including by reference to evidence demonstrating that “there is some qualitative difference between the circumstances in Australia and those in the applicant’s home country”: GXXS at [54] – [64].

87    In the present circumstances, the Tribunal did not make the error claimed by the applicant, rather it was simply dealing with the cases made by the respective parties.

88    I do not consider that Dr Yoxall’s report, Dr Morgan’s report, Dr Morgan’s oral evidence, the parties’ SoFICs, and the parties’ closing submissions amount to material which can ground a “substantial, clearly articulated argument relying on established facts” regarding the extent of impediments to the applicant’s health, which he may face if removed: CKT20 at [91]. Importantly, as the Minister correctly submitted “the mere existence of evidence before the Tribunal of the applicant’s substance abuse and depressive disorders” is insufficient to require that the Tribunal consider the applicant’s health concerns under cl 9.2 of the Direction.

89    The statements of Nicholas, Thomas and Downes JJ at [38] of Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 183 ALD 219; [2022] FCAFC 134 are particularly relevant here:

In this case and as already referred to above, the appellant ticked “no” on the Personal Circumstances Form when answering the question of whether he had any diagnosed medical or psychological conditions. He also answered “N/A” to a question asking for any detail of current treatment by any doctor/health professional/counsellor. The appellant never sought to qualify or alter these representations before the Tribunal (including to suggest that they had been “superseded”). The point which the appellant now wishes to advance as being an unarticulated claim is therefore directly contrary to the articulated representations made by the appellant, which means it is more obscure and less obvious. In such a case, there is less need for the Tribunal to consider the claim: AXT19 v Minister for Home Affairs [2020] FCAFC 32 (Flick, Griffiths and Moshinsky JJ) at [56].

90    Before the Tribunal, the applicant did not oppose the characterisation of the impediments he may face if deported as presented in the Minister’s SoFIC, insofar as it merely drew attention to the applicant’s drug addiction and mental health, but did not link those health concerns with any relevant impediment.

91    Nor do the applicant’s submissions to the Court grapple with the context in which he sought to advance the expert reports of Dr Yoxall and Dr Morgan, and his other medical information. The applicant proceeds on the basis that the presence of those reports and medical information was itself sufficient to enliven the obligation under cl 9.2 of the Direction, a state of events which was expressly rejected in GXXS at [54]. The applicant’s arguments were predicated on the clear emergence on the materials of the impediment that the applicant would face, if deported, which fails to engage adequately with the first step of analysis as required by CKT20.

92    Indeed, this position cannot be accepted because the reports and medical information went to the applicant’s contentions with respect to his risk of recidivism and his risk to the Australian community. Unlike the position of the applicant in LRMM, whose health-related issue became formalised over the course of the matter and was acknowledged in each iteration at the earliest opportunity as a relevant and distinct consideration (see LRMM at [22] – [25], [28]), the applicant in these circumstances sought to diminish his health-related issues in order to support his present recidivism risk, whilst relying upon it to explain his past criminal conduct. Despite this, he now relies upon it to suggest that it will play a relevant role in future impediments he may face if removed to the UK.

93    As to the applicant’s reliance on Belmont and LRMM, to the extent that it is necessary to distinguish them on their facts the following should be noted. While there are some overlapping facts, the circumstances of the present case are not reflective of several factors in Belmont upon which Horan J based his decision: Belmont at [31] – [32], [88] and [91]. They include that the applicant had represented himself before the Tribunal, that the applicant had given evidence that he was still suffering from his drug and alcohol abuse issues in response to the detailed questioning by the Senior Member of the Tribunal, and that the Tribunal had only considered whether the applicant would be able to receive treatment for his symptoms of rhythmic stuttering, but not his substance abuse issues: Belmont at [31] – [32], [88] and [91]. By contrast in this case the applicant was represented before the Tribunal and his evidence was that he was confident that he could remain sober.

94    In LRMM Logan J delivered extempore reasons which, rather than providing a template for the applicant in this case, only support the need for each case to be considered on its own facts and circumstances. His Honour concluded that although the Tribunal’s reasons were permeated with references to the applicant’s alcohol problem the Tribunal had overlooked or “forgotten” to take it into account as a relevant consideration with respect to impediments which might arise if the applicant returned to Ethiopia, the relevant country of reference: LRMM at [26] – [27].

95    In this case, unlike in LRMM, the Tribunal did not overlook or forget to consider the applicant’s health condition – rather its consideration occurred in accordance with the way the parties framed the issues. LRMM at [20] highlights the importance of the “administrative continuum” in the making of a decision as follows:

The statutory context in which a decision falls to be made and the administrative continuum necessarily give colour and shape to the reasons which the Tribunal comes to furnish in respect of its decision. Issues emerge or are given prominence or are abandoned, as the case may be, from the moment when the making of a primary administrative decision is sought, up to and including the time when the Tribunal comes to make its decision on review.

96    Therefore in the circumstances of that case, the applicant, unlike in this case, maintained that his alcohol dependency was an issue from the inception of his application to have the cancellation decision revoked: LRMM at [28]. Another factor which distinguishes LRMM is that in it the Tribunal specifically considered another of the applicant’s diagnosed health conditions, giving rise to his Honour concluding that the alcohol dependency had been overlooked: LRMM at [26]. Further the Tribunal did not make any mention of medical support in Ethiopia, the country to which the applicant would be removed in that case: LRMM at [27].

97    Therefore, neither Belmont nor LRMM assist the applicant.

98    The applicant also sought to distinguish Manebona and GXXS on the basis that in those cases no formal diagnoses of the applicants’ respective medical conditions had been made (see Manebona at [114] – [116] and GXXS at [95]), whereas in this case the Tribunal had before it two expert reports, Dr Yoxall’s going to the applicant’s mental health and drug usage, and Dr Morgan’s which focussed on the applicant’s drug usage. While that may be true, Manebona and GXXS contain statements of principle applicable to this case. As set out above, Horan J in Belmont at [86] stated that “care should be taken not to treat the outcomes of individual cases as establishing fixed categories that govern or control the case at hand”, and referred to CRS20 v Secretary, Department of Home Affairs [2024] FCA 619 at [82] (Wheelahan J), which may usefully be set out here:

It is convenient to state here that factual findings in other cases are not binding, and one should not reason from factual conclusions in one case to a factual conclusion in another. One should be mindful that observations made by judges in the course of deciding issues of fact in other cases ought not to be treated as laying down rules of law. However, one of the characteristics of our legal system is that legal principles, including the organising principles for the application of statutory provisions, are developed through decided cases, and that “it is the insight of the common law that wisdom can be drawn from previous examinations of similar problems”. I understood counsel for the applicant to accept that the previous cases that were cited were of utility in this sense, and that they afforded illustrations of the application of the “real prospect” test and no more.

(Citations omitted.)

99    For completeness, the parties made brief submissions with respect to materiality, and both relied upon LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12. The applicant adopted the statements of Horan J at [95] in Belmont, and submitted that the Tribunal’s failure to take into account the consideration under cl 9.2(1)(a) of the Direction may have affected its attribution of weight to the consideration in terms of determining whether there was another reason to revoke the cancellation of the visa, as per s 501CA(4) of the Act. The Minister opposed this contention and rather submitted that upon the material before the Tribunal, even if it had been obliged to apply cl 9.2 of the Direction, this would not have resulted in a different outcome. As I have concluded that the application should be dismissed, it is not necessary to engage with the question of materiality.

100    It is for the above reasons that I dismiss the applicant’s application.

conclusion

101    The Tribunal did not err in its assessment of an “Other Consideration” that was required to be taken into account, being the “extent of impediments if removed” as per cl 9.2 of the Direction. The applicant’s application is dismissed.

102    As there is no reason why costs ought not follow the event, the applicant must pay the Minister’s costs as agreed or taxed. I note that the second respondent filed a submitting notice, in which it stated that it would abide by the orders of the Court but still wished to be heard on the question of costs. Consequently, within three working days of the date of the orders made in this judgment, the second respondent must provide the Court with an indication of whether it still wishes to be heard with respect to costs. If the second respondent does not wish to be heard with respect to costs, the applicant must pay the second respondent’s costs as agreed or taxed.

Associate:

Dated:    14 July 2025