FEDERAL COURT OF AUSTRALIA XMBQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2134 Review of: XMBQ v Minister for Home Affairs [2019] AATA 785 File number(s): VID 530 of 2019 Judge(s): DAVIES J Date of judgment: 19 December 2019 Catchwords: MIGRATION – request for revocation of mandatory visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – where the respondent claimed harm if he were returned to his country of origin on account of the treatment afforded to people with mental illness and cognitive impairment – Tribunal's failure to engage in active intellectual process with representations – application of Minister for Home Affairs v Omar [2019] FCAFC 188 – appeal allowed Legislation: Migration Act 1958 (Cth) ss 501(3A), 501(6), 501CA(3), 501CA(4) Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Home Affairs v Omar [2019] FCAFC 188 Navoto v Minister for Home Affairs [2019] FCAFC 135 SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 Date of hearing: 9 December 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Ms C Symons Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr N Wood Solicitor for the Respondent: Clayton Utz ORDERS VID 530 of 2019 BETWEEN: XMBQ Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: DAVIES J DATE OF ORDER: 19 December 2019 THE COURT ORDERS THAT: 1. The decision of the second respondent made on 9 April 2019 be quashed. 2. The second respondent re-determine according to law the applicant's application for review of the decision made by a delegate of the first respondent on 15 January 2019. 3. The first respondent pay the applicant's costs, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DAVIES J: introduction 1 The applicant, a Somali national, has sought judicial review of a decision of the second respondent ("the Tribunal") to affirm the decision of a delegate of the first respondent ("the Minister") under s 501CA(4) of the Migration Act 1958 (Cth) ("the Act") not to revoke the cancellation of his Class XB Subclass 200 Refugee visa ("the visa"). The visa was cancelled under s 501(3A) of the Act ("cancellation decision"), which requires the Minister to cancel a visa if the Minister is satisfied that the person does not pass the "character test" under s 501(6) (a) or (e), and the person is currently serving a sentence of imprisonment on a full-time basis. The applicant did not dispute that he did not pass the character test or that his visa was validly cancelled under s 501(3A). In issue is whether the Tribunal fell into legal error in determining that it was not satisfied there was another reason why the original decision should be revoked: s 501CA(4)(b)(ii). 2 The applicant raised two grounds of review, which may be summarised as follows: (a) Ground 1: The Tribunal failed to consider representations as to a reason why the cancellation decision should be revoked, being to the effect that he would be exposed to serious harm in Somalia arising from his mental health conditions. (b) Ground 2: The Tribunal failed to consider the consequence of its decision (or failed to consider evidence as to the consequence of its decision), being that the applicant would be subject to indefinite detention. Ground 1 3 Pursuant to an invitation given to the applicant by the Minister under s 501CA(3)(b) of the Act, and in response to a further invitation from the Department of Home Affairs to comment on adverse information, the applicant made representations to the Minister as to why the cancellation decision should be revoked. Those representations included that the applicant, who has been absent from Somalia for a period of decades, has severe mental health issues and cognitive impairments and no meaningful clan ties in Somalia. In addition, since arriving in Australia, the applicant has had issues with transient accommodation, homelessness and a severe alcohol addiction and lived as a socially isolated, destitute man. It was submitted to the Minister that the applicant's cognitive impairment and lack of clan ties put him at a heightened risk of being subject to destitution, imprisonment and/or arbitrary detention and violent physical assault if he returned to Somalia, noting that clan ties are the foremost source of protection and assistance for Somali people. There was considerable country information before the Minister's delegate and the Tribunal to support the claim. The country information included that Somali society generally is not well informed about mental illness, which is widely stigmatised in Somali culture. The World Health Organisation ("WHO") reported in 2010, in a report entitled "A Situation Analysis of Mental Health in Somalia", that: Mentally challenged people are stigmatized, discriminated and socially isolated. Degrading and dangerous cultural practices such as being restrained with chains are not only wide spread but also socially and medically accepted. The WHO also reported that: Another form of human rights violation experienced by the mentally challenged is the practice of imprisonment, both at the request of the family and by the local authorities for homeless people. 4 The applicant also put in evidence before the Tribunal an article entitled "Where hyenas are used to treat mental illness", dated 17 October 2013, which stated that: Somalia has one of the highest rates of mental illness in the world and with a healthcare system devastated by years of war, most sufferers receive no medial help. Many are chained up – to trees or at home. Some are even locked in cages with hyenas… 5 The Tribunal accepted that the applicant suffers from significant mental health problems, including an acquired brain injury, an associated significant level of cognitive impairment and post-traumatic stress disorder (at [27]). The Tribunal also accepted that the applicant has, for the majority of his time living in Australia, been a homeless man with a serious alcohol dependency (at [27]). The Tribunal further accepted that the challenges that the applicant will face if released back into the Australian community are very significant (at [40(a)]). The Tribunal stated that it was not satisfied that the applicant had a sufficient understanding of the challenges he will face to have any level of confidence he will be able to meet those challenges and be able to manage his personal circumstances effectively (at [40(a)]). 6 The Tribunal separately considered Australia's non-refoulement obligations to the applicant. The Tribunal's reasons record that the Minister did not dispute, and the Tribunal accepted, that the applicant would be at risk of serious harm if he returned to Somalia due to his acquired brain injury, associated cognitive impairment and mental health conditions, and absence of clan ties (as well as for other reasons) and that the applicant was a person to whom Australia owed non-refoulement obligations under international law (at [53]). 7 Under the heading "Extent of impediments if removed", the Tribunal noted there was evidence before the Tribunal of significant impediments that the applicant was likely to face if he was returned to Somalia as well as serious threats to his personal safety (at [69]), and accepted that there was a real risk of serious harm to the applicant should he be forcibly returned to Somalia "which could potentially extend to torture or a risk to his life" (at [73]). The Tribunal found that the extent of the impediments that the applicant was likely to face if he is returned to Somalia weighed heavily in favour of revoking the mandatory cancellation of his visa (at [74]). The Tribunal reasoned as follows at paragraphs 69–73: There was evidence before the Tribunal of significant impediments that the applicant is likely to face if he is returned to Somalia as well as serious threats to his personal safety. The Tribunal accepts that given the applicant's extended absence from the country, his age, religion, health concerns including his acquired brain injury, slurred speech, cognitive impairment and mental health conditions, the difficulties he may face in seeking to avoid relapse into alcohol dependency, the absence of close family or clan ties, and the political unrest and absence of reliable health and social services in Somalia, would together make a return to Somalia extremely challenging for the applicant. The Tribunal notes in particular the evidence of absence of clan ties and acknowledges the 2017 DFAT Country Information Report on Somalia (the "Country Report") which states that: Leadership, security, governance, the justice system and access to credit, jobs and resources all revolve around clan affiliations. With respect to the availability of health services in Somalia and in particular for the mentally ill, the Country Report states that: In practice, there is no functioning national health system and access to healthcare services is severely limited. The Tribunal accepts that for these reasons there is a real risk of serious harm to the applicant should he be forcibly returned to Somalia which could potentially extend to torture or a risk to his life. 8 It was argued for the applicant that the Tribunal failed to engage meaningfully with the representations concerning the risk of harm to the applicant in Somalia. The obligation to give meaningful consideration to a representation on harm independently of a claim concerning Australia's non-refoulement obligations when considering whether there is "another reason" a mandatory visa cancellation decision should be revoked was very recently affirmed by the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188 ("Omar") at [34(i)], [39] and [40]. That obligation requires active intellectual engagement with the matters raised relating to the risk of harm and meaningful consideration be given to a clearly articulated and substantial representation on risk of harm that could constitute "another reason" for revoking the visa cancellation. The failure to do so may constitute a failure to carry out the statutory task and give rise to jurisdictional error: Omar at [41]. See also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [85] and Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at 363-4 [43]–[ 46]. At [37] the Full Court in Omar referred with approval to Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 ("Hands") where at [3], Allsop CJ (with whom Markovic and Steward JJ agreed) emphasised the "importance of the human consequences removal from Australia can bring about". His Honour said: By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament. In that case, the Assistant Minister decided under s 501CA(4) of the Act not to revoke a cancellation decision. In his reasons, the Assistant Minister said that, following removal to New Zealand, the appellant "may experience short term hardship" but found that "over time he would be capable of settling in New Zealand without undue difficulty". Allsop CJ held at [32] that: The last sentence in [35] contains a finding of fact that was critical to the assessment. There is nothing in the material that could permit a rational finding that Mr Hands "may experience short term hardship". To any person reading the material before the Assistant Minister, the only conclusion reasonably open would be that the removal of Mr Hands would in all likelihood be a crushing blow to him and his partner, deeply affecting him, his family and his community. The proposition that there would be short term hardship was unsupported by any material, and utterly at odds with any reasonable reading of the whole of the material. At [46] in Hands, Allsop CJ held that the making of the findings, without any material to found them, given their central importance in the reasoning, was a sufficient basis to conclude that there had been jurisdictional error. His Honour further stated, at [47], the fact this could be said raised doubt that those drafting the reasons and the Minister adopting them had considered the whole human consequences of the decision, and thus whether real consideration was given to the totality of the representations. His Honour stated that it was sufficient to rest, however, on the conclusion that a central finding of fact was made without any probative foundation. 9 In Omar the respondent had made representations concerning the risk of harm in Somalia arising from his mental health conditions. Mr Omar suffered from an intellectual disability and schizophrenia. He referred to material, including a psychological report and country information, in support of his representations. At [39]–[40], the Full Court said: Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia's non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [32]-[36] per Perram J). That is particularly the case here where representations were clearly made on the respondent's behalf on a significant matter, namely the risk of harm (and serious harm) if the respondent was returned to Somalia given his individual circumstances and the treatment of persons with mental illness in that country. It is difficult to think of a more serious claim than that a person is at risk of harm because it was likely that the person would be chained, imprisoned and at risk of physical injury because of Somalia's treatment of the mentally ill, which claim was supported by the WHO 2010 report. As Robertson J stated in DOB18 at [190] (with whom Logan J agreed), "the nature and content of submissions made to the Minister" in support of a revocation request under s 501CA(4) is relevant. There had to be an active intellectual engagement with the matters raised on the respondent's behalf relating to the risk of harm. It was held that the Assistant Minister had failed to engage meaningfully with significant representations which had been clearly expressed by Mr Omar on the risk of harm. The Assistant Minister merely "noted" or said that he had taken into consideration or account some of the matters raised by Mr Omar on the risk of harm in Somalia, made no finding one way or the other as to whether he accepted the submission that the treatment of persons with mental illness in Somalia are subjected to systemic and severe discrimination, and made no explicit finding of fact with regard to the claim supported by the WHO 2010 report that "many Somalian nationals with mental illness are contained with chains and this is a locally accepted treatment in mental health facilities as it is seen as alternative medication": Omar at [43(a)]. The Full Court stated that the matters raised by Mr Omar and overlooked by the Assistant Minister were "significant and serious matters which had been raised on behalf of the respondent and which were supported by other material. The matters were of such central significance that the Assistant Minister had to engage with them properly and make findings of fact one way or the other. Otherwise he could not assess the veracity and gravity of the risks of harm put forward on the respondent's behalf": Omar at [43(a)]. 10 The Minister submitted that this case is distinguishable from Omar in that the Tribunal did not merely "note" or "acknowledge" the applicant's representations but directly confronted and accepted the applicant's claims. It was submitted that ultimately the Tribunal was in the unenviable position of having to make a profoundly difficult balancing exercise between the accepted extreme risks to the applicant in Somalia (including torture and death) against the risks that the applicant posed to members of the community in Australia. It was further submitted that some care should be exercised in applying Omar. Reference was made to SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 in which Griffiths J rejected "any suggestion that Omar stands for the principle that the use of expressions such as 'I note' and 'I have considered' may itself give rise to jurisdictional error": at [107]. At [108]–[109], his Honour stated: Secondly, it is necessary to review a statement of reasons as a whole and not simply focus on particular sentences or paragraphs in isolation from the others. Otherwise, there is a danger that there will be an insufficient appreciation of the fact that the decision-maker's consideration of a particular submission may be subsumed in findings made elsewhere in the statement on related issues. That is well illustrated in the circumstances here where, for example, the Minister's conclusions relating to risk to the Australian community, as expressed at [49] of his statement of reasons, subsumes individual matters which are summarised earlier arising from the applicant's submissions (see at [41], [46], [47] and [48]). Thirdly, as the Minister pointed out, some of the passages in the statement of reasons which the applicant says reveal a failure on the Minister's part to engage fully and meaningfully with his submissions (such as [51] and [53]-[60]), when fairly read, indicate that the Minister was implicitly accepting the facts underlying the particular submissions. Nevertheless, the Minister proceeded to made the conclusion that he did at [63] regarding the risk the applicant posed to the Australian community. This conclusion was arrived at after the Minister weighed the competing considerations. The Minister submitted that the most the Tribunal could be criticised of was not descending in its statement of reasons to particularisation of the possible various forms of torture that the Tribunal accepted the applicant may face in Somalia, but that did not involve jurisdictional error. It was submitted it was clear enough that the Tribunal, at least implicitly, accepted the applicant's representations insofar as they turned on evidence about what the applicant would likely to experience in Somalia. It was further submitted that it was difficult to see how, even if the Tribunal did fail to consider representations as to particular forms of torture that the applicant would face in Somalia (which the Minister denied), that consideration could realistically have resulted in a different decision such that the error was material and therefore jurisdictional, as the Tribunal accepted that the applicant may face possible torture or even death on return to Somalia. 11 In my view, the Tribunal failed to engage meaningfully with the applicant's claims as to the risks of harm he would face if returned to Somalia. The Tribunal simply recorded its acceptance that there was a real risk that the applicant would suffer serious harm, without engaging with the representations made on behalf of the applicant about the nature and probability of the risk of harm. There was no factual finding or analysis underpinning the conclusion that the risk of serious harm to the applicant should he be returned to Somalia "could potentially extend to torture or a risk to his life" and no active intellectual engagement with, or genuine evaluation of, the applicant's circumstances. In order to discharge the statutory task of evaluating the considerations bearing upon the exercise of discretion under s 501CA(4), the Tribunal Member was obliged to give real consideration to the applicant's representations by bringing his mind to bear upon the facts stated in them and the claims put forward by the applicant on the likelihood of harm he would face if returned to Somalia. As submitted for the applicant, the Tribunal's lack of engagement is exposed by: (a) its failure, when addressing non-refoulement obligations, to record any consideration of the likely significant harms that were conceded to follow from the applicant's removal to Somalia. The Tribunal simply recorded its acceptance that there was a real risk the applicant would suffer serious harm if he was returned to Somalia, despite the applicant making detailed submissions about the different types of harm he apprehended would await him; (b) its failure to make a finding, one way or the other, as to whether the Tribunal accepted the submission that the applicant was at a heightened risk of being subjected to violence, imprisonment and/or arbitrary detention and destitution on account of his mental illness and lack of clan ties; (c) its failure to make an explicit finding of fact with regard to the separate statement that "mentally challenged people are stigmatised, discriminated and socially isolated. Degrading and dangerous cultural practices such as being restrained with chains are not only widespread but also socially and medically accepted"; and (d) its failure to make an explicit finding of fact with regard to the separate statement that "another form of human rights violation experienced by the mentally challenged is the practice of imprisonment, both at the request of the family and by the local authorities for homeless people". 12 Further, I reject the submission that the error was not material. The Tribunal's statutory task under s 501CA(4) of the Act required an evaluative process and, had the Tribunal truly engaged in an act of intellectual process with the significant matters put forward by the applicant on the likelihood of harm, there is a realistic possibility that the Tribunal's decision could have been different if it had given proper and meaningful consideration to the applicant's claims: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 445 [45]-[50] per Bell, Gageler and Keane JJ. Ground 2 13 At [60] the Tribunal stated that no evidence was submitted to it to the effect that there was an impediment that would mean it was presently not reasonably practicable to repatriate the applicant to Somalia, should the mandatory cancellation decision not be revoked. Before this Court, it was submitted there was, however, such evidence in the Department of Foreign Affairs and Trade's 'DFAT Country Information Report – Somalia', 13 June 2017 ("DFAT report"), where at paragraph 5.16 it was stated that: … Returnees in need of psychological and mental health support cannot be returned to Somalia at present. Somalia will not accept the repatriation of certain categories of offenders including radicalised people, sexual predators and certain violent criminals. … 14 The applicant's criminal offending included serious acts of indecency. 15 The applicant submitted that the DFAT report contradicted the finding of the Tribunal at [60] and raised the possibility that the applicant might, in the event that repatriation was not reasonably practicable, be subject to indefinite detention, but this possibility was not expressly considered in the Tribunal decision. It was submitted further that the failure of the Tribunal to consider the consequence that the applicant would be subject to indefinite detention was material, as the realistic possibility of a different decision could not be excluded in circumstances where the consequence had both a different legal character and the potential to expose different practical consequences with respect to the vulnerable circumstances of the applicant. 16 The Tribunal did not consider the material contained in the DFAT report, but the applicant's representative did not rely on this part of the DFAT report before the Tribunal and no claim was made that there may be an obstacle to the removal of the applicant to Somalia if the decision under review was affirmed. To the contrary, the applicant's representative expressly put to the Tribunal there was no evidence that there was any obstacle to the immediate removal of the applicant to Somalia if the decision under review was affirmed: see the applicant's written submissions on international non-refoulement obligations paragraph 18(d). That submission was consistent with the statement of facts, issues and contentions filed on behalf of the applicant in support of his application to the Tribunal for review where, at paragraph 25(c), it was stated that the applicant was liable to be returned to Somalia immediately should he be unsuccessful in the review. Thus, it was not put into issue that there may be obstacles to the applicant's removal. Nevertheless, before this Court it was contended for the applicant that as the DFAT report was "generally relevant", the Tribunal should have had regard to the material in that report which indicated that there may be an obstacle to the applicant's removal to Somalia. That submission disregards the purpose and function of the statement of facts, issues and contentions, which was to inform the Tribunal of the issues in dispute and of the case to be presented by the applicant. In circumstances where it was never flagged as an issue that there may be obstacles to the applicant's removal, and indeed where the thrust of the submission was that the consequence of affirming the decision under review would be that the applicant would return to Somalia, the Tribunal did not err by not considering the parts of the DFAT report to which it was not taken and which had not been relied upon. Accordingly, ground 2 fails. Conclusion 17 As the applicant has succeeded on ground 1, the decision of the Tribunal should be set aside and remitted to the Tribunal for consideration in accordance with the law. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate: Dated: 19 December 2019