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EUF19 v Minister for Immigration & Anor [2020] FCCA 912 (23 April 2020)

Last Updated: 24 April 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

EUF19 v MINISTER FOR IMMIGRATION & ANOR


Catchwords:
MIGRATION – Bridging visa – cancellation – review of Administrative Appeals Tribunal (“Tribunal”) decision.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it had failed to have regard in accordance with law to mandatory considerations.


Legislation:
Migration Act 1958, ss.116, 474, 499
Migration Regulations 1999, reg.2.43
Domestic and Family Violence Protection Act 2010 (Qld)

Cases cited:
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476


Applicant:
EUF19

First Respondent:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:
ADMINISTRATIVE APPEALS TRIBUNAL

File Number:
SYG 3185 of 2019

Judgment of:
Judge Cameron

Hearing date:
23 March 2020

Date of Last Submission:
23 March 2020

Delivered at:
Sydney

Delivered on:
23 April 2020

REPRESENTATION

Counsel for the Applicant:
Mr I Chatterjee

Solicitors for the Applicant:
Olympus Law Partners

Counsel for the Respondents:
Ms N Laing

Solicitors for the Respondents:
Clayton Utz


ORDERS

(1) The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3185 of 2019

EUF19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

INTRODUCTION

  1. The applicant is a citizen of Afghanistan who arrived in Australia on 31 October 2018. On 17 October 2019 a delegate of the first respondent (“Minister”) cancelled the applicant’s Bridging E (Class WE), Subclass 050 visa, which had been granted when he made an application for a protection visa. The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
  2. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.
  3. For the reasons which follow, the application will be dismissed.

LEGISLATION

  1. Subsection 116(1)(g) of the Act provides:
...
  1. Subregulations 2.43(1)(p) and (q) of the Migration Regulations 1999 (Cth) (“Regulations”) relevantly provide:

MINISTERIAL DIRECTION 63

  1. Ministerial Direction 63 issued under s.499 of the Act (“Direction 63”) concerns the cancellation of visas pursuant to the combined operation of s.116(1)(g) and reg.2.43(1)(p) or (q). It relevantly states:

BACKGROUND FACTS

  1. The chronology of events relevant to this matter is:
    1. the applicant arrived in Australia on a provisional partner visa on 31 October 2018;
    2. a protection order was made on 17 July 2019 under the Domestic and Family Violence Protection Act 2012 (Qld) ordering the applicant to “be of good behaviour towards [his sponsor] and to not commit domestic violence against the [sponsor]”;
    1. the applicant’s application for a Permanent Spouse (Subclass 100) visa was refused on 18 July 2019;
    1. on 19 September 2019 the applicant and the sponsor went to their home after the applicant had had a doctor’s appointment. It was alleged that when at home the applicant lost control of his emotions and stabbed himself, leading to his involuntary admission to hospital;
    2. the applicant’s conduct on 19 September 2019 led to the issuing of a temporary protection order under the Domestic and Family Violence Protection Act 2012 (Qld) on 1 October 2019, which repeated the order of 17 July 2019 and also imposed additional conditions on the applicant;
    3. the applicant was transferred from hospital to immigration detention on 2 October 2019 because he was an unlawful non-citizen;
    4. the applicant applied for a protection visa and an associated bridging visa on 14 October 2019;
    5. on 17 October 2019 the applicant was charged with breaching the original protection order;
    6. being satisfied that a ground of cancellation existed under reg.2.43(1)(p)(ii) of the Regulations because the applicant had been charged with the offence “Contravention of Domestic Violence Order”, the delegate cancelled the applicant’s bridging visa under s.116(1)(g) of the Act on 17 October 2019.
  2. The applicant’s representatives submitted to the Tribunal:

The Tribunal’s decision and reasons

  1. After discussing the claims made by the applicant and the evidence before it, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms:
(References omitted)
  1. I adopt that summary.

THE PROCEEDING IN THIS COURT

  1. In the application commencing this proceeding the applicant alleged:
Particulars
2. In the alternate the Tribunal failed to give proper, genuine and realistic consideration to a mandatory relevant consideration, being the applicant’s claims and evidence that his conduct on 19th September 2019 was caused by reason of the applicant’s mental health issues, and thereby committed jurisdictional error.
Particulars

CONSIDERATION
Applicant’s submissions

  1. Both of the application’s grounds alleged that the Tribunal erroneously failed to consider whether the applicant’s state of mental health on 19 September 2019 mitigated the seriousness of his alleged conduct on that day. The differences in expression employed by the two allegations add nothing to the substance of the applicant’s case and both grounds raise the same issue, namely whether the Tribunal had turned its mind to the applicant’s variously particularised claims as required by law.
  2. The applicant cited a medical report which referred to him having suffered from post-traumatic stress disorder (“PTSD”) and a “Treatment Authority” dated 20 September 2019, expressed to be Queensland Government document made under the Mental Health Act 2016 (Q’ld) authorising involuntary treatment for mental illness, which referred to him having suffered “possible psychotic phenomena”. He also referred to statutory declarations made by him and his sponsor’s parents concerning his mental state at the relevant time and to the fact that he had stabbed himself, not his sponsor. It was submitted that in the face of that material, “a conclusion that the applicant’s conduct in the self-harm incident was linked to his mental health was almost inescapable”.
  3. The applicant referred to Direction 63. He submitted that:
  4. Noting that the Tribunal had accepted that he had suffered from PTSD, the applicant submitted that if his mental health had affected his conduct, that was a mitigating factor which Direction 63 required the Tribunal to take into account. He argued in that connection that his submission to the Tribunal that his offending had been closely linked to his psychiatric condition was a submission that the Tribunal should have regarded his mental health condition as a potentially mitigating factor for the purposes of Direction 63. However, he argued it had not taken his mental health into account in that way and that this was evidenced by the Tribunal’s statement at para.20 of its decision record:
  5. The applicant also argued that the Tribunal’s failure to have proper regard to matters of mitigation was reflected in its summary of Direction 63, which did not mention mitigating circumstances. The Tribunal summarised the direction’s material provisions as follows:
  6. In support of his argument that the Tribunal had not considered his mental health condition as a factor potentially mitigating the seriousness of his conduct on 19 September 2019, the applicant referred to what the Tribunal had said in para.25 of its reasons:
  7. The applicant argued that in that paragraph the Tribunal was considering his culpability for his conduct, in the sense of the presence or absence of mens rea, rather than whether the particular circumstances giving rise to that conduct had been beyond his control and so mitigated the seriousness of his conduct on 19 September 2019.

Discussion

Application of the relevant test

  1. I am not persuaded that the Tribunal’s summary of relevant parts of Direction 63 or the final sentences of para.20 of its reasons evidenced that it had not appreciated the need to have regard to possible mitigating circumstances when it came to exercising its discretion. The summary needs to be seen in the context of the Tribunal’s reasoning generally and the final sentences of para.20 need to be seen in their particular context. That paragraph said:
  2. Read in context, and particularly in light of the final sentence of that paragraph, I am satisfied that when the Tribunal said:
it was referring to the criminal charge arising out of the events of 19 September 2019.
  1. The fact that para.25 commences with the words:
in circumstances where para.7(1)(c) of Direction 63 commences:
the circumstances in which the ground for cancellation arose
is a strong indication that it is para.25 of the Tribunal’s reasons that deals with the secondary considerations found in para.7(1)(c) of Direction 63, not para.20. That impression is strengthened by the Tribunal’s discussion in para.25 of circumstances being affected by things beyond an applicant’s control. That was a reference to matters that might be taken into account in mitigation of the seriousness of the circumstances enlivening the discretion to cancel a bridging visa. The fact that in that paragraph the Tribunal considered the applicant’s submission that he had suffered a psychotic episode on 19 September 2019, which appeared in his representatives’ written submissions under the heading “Circumstances in which the ground for cancellation arose” and so plainly related to questions of mitigation, emphasises that in that discussion the Tribunal was having regard to matters of mitigation.
  1. I find that para.25 is directed to considerations of mitigation and that para.20 is consequently irrelevant to whether or not the Tribunal directed its mind to such things. Because the issue of mitigation was dealt with in para.25, it is also irrelevant to the present dispute that its summary of Direction 63 made no specific reference to it.

Error in consideration of the evidence on the applicant’s mental condition

  1. The applicant’s argument about the inescapability of a conclusion that his conduct on 19 September 2019 was “linked to his mental health” was really a comment on the Tribunal’s fact-finding, rather than a challenge to the lawfulness of its findings.
  2. The relevant issues raised by the initiating application were not whether the Tribunal had reached a particular conclusion on mitigation but whether it had considered the applicant’s claims about matters he contended mitigated the seriousness of his alleged conduct on 19 September 2019 and, if it had, whether it had done so in a substantive and not tokenistic way. The consideration of those issues necessarily involves reference to the Tribunal’s process of fact finding as well.

Psychotic episode

  1. As already noted, the applicant specifically submitted to the Tribunal as a factor mitigating the seriousness of his alleged conduct that he had been “going through some sort of a mental psychosis” on 19 September 2019. The Tribunal considered that allegation but did not accept it. It was open to the Tribunal to make that finding because there was evidence before it that the applicant suffered from an adjustment disorder rather than psychosis.
  2. In that connection, the reference to “possible psychotic phenomena” in the Treatment Authority is best understood by having regard to its context, namely as an expression of the reason why the Treatment Authority was made:
The reasons you believe the person may have a mental illness, including diagnosis

Bizarre behaviour with self-harm with knife requiring sutures
- possible psychotic phenomena
  1. Plainly, the statement in question was speculative although subsequent statements in that document indicate that the doctor certifying the applicant’s need for involuntary treatment was concerned that his conduct had been “psychotic in nature”. Nevertheless, the only evidence to which the Court was taken of evidence before the Tribunal of an actual diagnosis of the applicant’s condition was in notes of medical consultations early in the applicant’s immigration detention. Those notes, entitled “Clinical Handover Summary” and dated from 3 October 2019 to 25 October 2019, record that the applicant had “no psychotic symptoms” but suffered instead from an “Adjustment Disorder”. That being so, it was open to the Tribunal to conclude that the evidence did not support a finding that the applicant’s behaviour on 19 September 2019 arose out of a psychotic episode.
  2. Although the Tribunal’s relevant reasons in para.25 were not lengthy, they demonstrate a recognition of and engagement with the applicant’s contention that the seriousness of his alleged conduct was mitigated by the circumstances which brought it about. As the Tribunal said:

PTSD and adjustment disorder

  1. The applicant’s other submission, that the Tribunal should have had regard to his mental health condition generally when considering the potential existence of mitigating circumstances, overlooks the argument he made to the Tribunal. He did submit to the Tribunal that his 19 September 2019 conduct was “linked to his psychiatric condition”, and the Tribunal did accept that he suffered from PTSD, but it was not that condition or his adjustment disorder which the applicant identified in his submissions to the Tribunal as the cause of his behaviour on 19 September 2019. As noted already, he specifically submitted to the Tribunal that he had been “going through some sort of a mental psychosis” on 19 September 2019. Moreover, he did not identify to the Tribunal what the particular link to his broader psychiatric issues, referred to in his submission to this Court, was or what it or those broader issues signified.
  2. As the applicant did not argue to the Tribunal that it should have had regard to his mental health condition generally when considering the potential existence of mitigating circumstances, the fact that it did not consider that argument does not point to error on its part.

Consideration of mens rea rather than Direction 63 mitigation

  1. Finally, I am not persuaded by the the applicant’s submission that the Tribunal’s rejection of his contention that the circumstances in which the ground for cancellation arose were beyond his control, reflected a consideration of potential criminal guilt. The Tribunal noted the difference between circumstances that are outside a person’s control and circumstances where a person has lost self-control which, in light of its rejection of his claim to have suffered a psychotic episode, was the Tribunal’s implicit conclusion regarding the applicant. That distinction was directly relevant to “the circumstances in which the ground for cancellation arose” and whether they contained “mitigating factors”. I find it was to those issues that para.25 of the Tribunal’s reasons were relevantly directed.

CONCLUSION

  1. Jurisdictional error on the part of the Tribunal has not been demonstrated.
  2. Consequently, the application will be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:

Date: 23 April 2020

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