Abassi v Minister for Immigration
[2018] FCCA 2690
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABASSI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2690 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – partner (provisional) (class UF) (subclass 309) visa – applicants providing bogus documents or documents that were false or misleading in a material particular to the Minister – whether the Tribunal erred in its consideration of whether to waive the requirements of public interest criterion 4020(1) – whether the Tribunal considered whether there were compelling circumstances affecting the interests of an Australian citizen – whether the Tribunal was obliged to consider s.34 of the Australian Citizenship Act 2007 in determining whether to waive the requirements of public interest criterion 4020(1) – whether the Tribunal made an irrational decision – whether the Tribunal considered all required matters. |
| Legislation: Criminal Code Act 1995, ss.134.1, 134.2, 135.1, 135.2, 135.4, 136.1 Migration Regulations 1994, criterion 4020 of Schedule 4 |
| Cases cited: Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 |
| First Applicant: | NAJIBULLAH ABASSI |
| Second Applicant: | AZIZA HASSANI |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1539 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 22 June 2018 |
| Date of last submission: | 22 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| Counsel for the applicants: | Angel Aleksov |
| Solicitors for the applicants: | FCG Legal |
| Counsel for the first respondent: | Nick Wood |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The application filed on 20 July 2016 and amended on 22 February 2017 be dismissed.
The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 1539 of 2016
| NAJIBULLAH ABASSI |
First applicant
And
| AZIZA HASSANI |
Second applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the second applicant a partner (provisional) (class UF) (subclass 309) visa.
The first applicant is the husband of the second applicant. Before the Tribunal, there was a third applicant, Ramazan Ali Abbasi, born on 5 May 2006, who is the son of the first and second applicants. However, there was no attempt for the son to be made a party to these proceedings.
The first applicant was granted a subclass 117 orphan relative visa on 8 May 2007. In his application for the orphan relative visa, the first applicant made a number of false claims including that he was not married and did not have a child. Later, the first and second applicants claimed that they were married on 24 February 2004 and had a child on 5 May 2006.
The delegate of the Minister who determined the first applicant’s orphan relative visa application was not aware of the falsehoods in the application. Following the granting of the orphan relative visa to the first applicant, he became an Australian citizen on 26 January 2011.
Later in 2011, the applicants applied for a partner visa. In that application, the applicants said they were married in 2011 and Ramazan was the second applicant’s child from a previous marriage. Those claims were false, but consistent with the first applicant’s orphan relative visa.
In 2014, the second applicant applied for the partner visa now under consideration with the first applicant as her sponsor. In making the partner visa application, the applicants submitted a marriage certificate indicating that they had been married in 2004: CB28 and CB77.
For the purposes of the second partner visa application, the first applicant lodged a statutory declaration in which he admitted to having made false statements in his previous visa applications. He apologised if he had caused any inconvenience to the system.
The delegate considered that there was evidence that the marriage certificate and a number of other documents the applicants had submitted were bogus documents, contrary to the requirements of public interest criterion 4020 in Schedule 4 of the Migration Regulations 1994 (“public interest criterion 4020”). The delegate considered whether there were circumstances that would justify the waiver of public interest criterion 4020 but decided that there were not.
The Tribunal’s reasons
The Tribunal said that it reasonably suspected that the marriage certificate submitted by the applicants to the Department was a counterfeit or had been altered without authority. The Tribunal concluded that there was evidence that the second applicant had submitted a bogus document or had provided information that was relevantly false or misleading. The Tribunal considered whether to waive the requirements of public interest criterion 4020 but decided that the circumstances did not justify a waiver.
Ground 1
The first ground of review in the application filed on 20 July 2016 and amended on 22 February 2017 (“the application”) is:
The decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to consider whether the facts relevant to the waiver of PIC 4020 amounted to “compelling circumstances” and whether any such compelling circumstances justified the waiver of PIC 4020.
Public interest criterion 4020 provides as follows:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister … a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa …
(b) ...
(2) …
…
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen … ;
justify the granting of the visa.
(5) ...
The Tribunal’s reasons for decision address the issue of waiver as follows:
Should the requirements of cl.4020(1) or (2) be waived?
32. The requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident; or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa.
33. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
34. Mr Abassi did not claim that there are compelling circumstances that affect the interests of Australia, and the Tribunal finds that there is no evidence is this respect.
Are there compelling or compassionate circumstances affecting Mr Abassi?
35. Mr Abassi claims that he has been married to Ms Hassani since 2004 and they have a 10 year old son, Ramazan. He said that he has been separated from them since 2007, and that he is very distressed about the ongoing disruption of his family unity. His mental health has suffered, and he is being treated for anxiety and depression by his general practitioner. The Tribunal accepts that Mr Abassi’s mental health is negatively impacted by the prolonged separation from his family.
36. Mr Abassi told the Tribunal that his wife faces constant difficulty in Pakistan as a single woman with a child, as Pakistan is one of the most dangerous places in the world. He said that his son is now 10 years old, and he has seen very little of his father over the past 10 years. The Tribunal accepts that circumstances for a Hazara mother and child living in Quetta without male protection is difficult and potentially dangerous.
37. Mr Abassi said that it is difficult for him to travel to Pakistan to see his wife and child, as it is always dangerous for Hazaras travelling in Pakistan. While acknowledging that such travel can be problematic, the Tribunal notes that Mr Abassi has travelled to Pakistan to see his family, despite his expressed concerns about safety. In his written statement dated April 2014 he said that he visited them in February 2011 for 4 months, and at the Tribunal hearing he said that he visited them in October 2014, at which time he also travelled to Kabul to obtain documents in support of his review application.
38. Mr Abassi expressed a strong need to have his family with him in Australia where they will all be safe and able to live as a family unit. He indicated his willingness to undergo DNA testing to prove that Ramaza is his son. He also told the Tribunal that he has been financially and emotionally supporting his wife and son, and that has taken a toll on him.
39. On the evidence, the Tribunal accepts that Mr Abassi’s separation from his family, and his concern about their safety in Pakistan, is having a negative impact on his mental health. Accordingly, the Tribunal finds that there are compassionate circumstances that affect Mr Abassi’s interests as an Australian citizen.
Do the compassionate circumstances justify the grant of the visa?
40. The Tribunal notes that cl.4020(4) permits waiver if the decision-maker is satisfied of the relevant ‘compelling or compassionate circumstances but does not require it. For the following reasons the Tribunal is not satisfied that the PIC 4020 requirements should be waived.
41. It is necessary for the Tribunal to consider all Mr Abassi’s circumstances. On the basis of his evidence in support of this visa application, it is apparent that Mr Abassi obtained permanent residency in 2007 on the basis of false information. He declared at that time that he was not married and did not have children. He has now declared that at that time he was married and had a son.
42. Mr Abassi has also admitted that he and Ms Hassani provided false information in regard to her partner visa application in 2011. They said that they married in 2011 and that Ramazan was not Mr Abassi’s biological child. The Tribunal has found that Mr Abassi and Ms Hassani provided a bogus document – a marriage certificate – in relation to the current visa. The Tribunal finds that this history of deceit is serious and demonstrates a disregard for Australian migration law.
43. It is acknowledged that Mr Abassi is in a distressing situation being separated from his wife and son. While cognisant of Dr Hamimi’s statement that Mr Abassi suffers from chronic depression and tension headache, there is no evidence before the Tribunal that Mr Abassi’s mental health is seriously compromised.
44. The Tribunal is aware that Ms Hassani will be subject to a three year ban on the basis of not meeting PIC 4020, and this will have a significant impact on Mr Abassi. However the Tribunal considers that it is open to Mr Abassi to visit his family in Pakistan as he has done previously. Alternatively, he may choose to live with them in Pakistan until Ms Hassani is able to apply for another visa. The Tribunal acknowledges that relocation to Pakistan will have its challenges. However the Department of Foreign Affair and Trade report: Shias in Pakistan (15 January 2016) states that there are up to 900,000 Hazaras living in various areas of Pakistan, and that Shias do not suffer greater economic disadvantage than other groups in Pakistan. Accordingly, the Tribunal is satisfied that there are choices available to Mr Abassi in regard to the way in which he continues to support his family.
45. Having considered the totality of the evidence, the Tribunal is not satisfied that the compassionate circumstances justify the grant of the visa. Accordingly, the Tribunal is not satisfied that the requirements of cl.4020(1) should not be waived.
The applicants argued that, legally, there must be a difference between compelling and compassionate circumstances in public interest criterion 4020(4)(b), although in practice there may be a factual overlap. The Minister did not dispute that. The applicant accepted that the Tribunal had clearly considered whether there were compassionate circumstances affecting the interests of an Australian citizen. However, the applicant argued that the Tribunal had patently not considered whether there were compelling circumstances affecting the interests of an Australian citizen.
The applicants relied on Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592, where Flick J said:
The need to consider reasons in a fair and balanced manner
25. Care must nevertheless be taken to ensure that the findings and reasons of the Assistant Minister are not construed with an eye attuned to the detection of legal error where none truly exists: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
26. The eyes of a reviewing court should nevertheless “not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case”: Soliman v University of Technology, Sydney [2012] FCAFC 146 at [57], (2012) 207 FCR 277 at 295 to 296 per Marshall, North and Flick JJ. See also: 4nature Inc v Centennial Springvale Pty Ltd [2016] NSWLEC 121 at [150], (2016) 218 LGERA 289 at 333 per Pepper J. Whether the reasons for decision expose a proper consideration of submissions advanced nevertheless forever remains a conclusion to be drawn by reference to the reasons in fact provided: cf. Sevdalis v Director of Professional Services Review [2017] FCAFC 9 at [33] per Tracey, Pagone and Markovic JJ.
27. The use of “stock standard” or “formulaic” reasons, in particular, cannot be invoked by a decision-maker with a view to shielding a reasoning process from scrutiny: Berryman v Minister for Immigration and Border Protection [2015] FCA 616 at [24], (2015) 235 FCR 429 at 437 per Flick J; Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [40] per Allsop CJ, Flick and Griffiths JJ; Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 at [48] per Griffiths J. Recitations, for example, that particular matters have been “noted” or “considered” does not preclude an analysis as to whether such matters have been given such consideration as is required by law.
28. Although a reviewing Court should not unfairly parse and analyse a statement of reasons with a view to determining error where none truly exists, a reviewing Court should equally not be hesitant to grant relief where legal error is exposed.
29. The more so is this the case where, as in the present case, there is a statutory duty to provide reasons: Migration Act s 501G(1)(e).
30. Useful guidance as to the ability to draw inferences from a failure to make express findings of fact in a statement of reasons is to be gleaned from the following observations of French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593 at 604 to 605:
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In commenting upon these observations, Griffiths J in Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 said:
[42] There is one important qualification. It relates to the need for greater caution in drawing inferences from omissions in a statement of reasons which has been voluntarily provided by a decision-maker and not in discharge of a statutory obligation to do so. The High Court’s decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) highlights the importance of paying close regard to the precise terms of a statutory provision, such as s 430(1) of the Migration Act 1958 (Cth), which imposes a statutory obligation on a decision-maker to provide a written statement which sets out various matters and not just the reasons, such as a requirement to set out the findings on any material questions of fact. The precise terms of such a statutory obligation necessarily provide a critical framework in determining, for example, what legal significance should attach to the failure of such a decision-maker to make findings on every matter of fact which is objectively material to its decision. Caution is required in drawing adverse inferences from omissions in a statement of reasons which is volunteered by a decision-maker and absent any immediate legal obligation to do so because there is no detailed legal framework of the kind which operated in cases such as Yusuf and WAEE (and see also s 25D of the Acts Interpretation Act 1901 (Cth)).
Reasons and findings were, of course, required to be provided in the present case.
31. The degree of care with which a statement of reasons may be scrutinised depends in large part upon the statutory context in which reasons are to be given and the degree of care with which it may be expected that the reasons are prepared. Part of that statutory context in the present case is the volume of decisions to be made and the necessity to assess both disputed factual claims and competing policy considerations. Part of that statutory context, however, is that decisions such as the present impact fundamentally upon the life of a claimant and their immediate family. Part of that statutory context is also the fact that the Legislature has entrusted the making of the present class of decisions to the Minister personally. It is to be expected that such reasons have been carefully thought through and with an appropriate sense of responsibility as to the manner in which decisions impact upon – after all – an individual.
The Minister argued that it was apparent from paragraphs 32 and 33, and the heading before paragraph 35, of the Tribunal’s reasons for decision that the Tribunal was well aware of the requirement to consider whether there were compelling circumstances affecting the interests of an Australian citizen. The Minister noted that, in paragraph 33 of the Tribunal’s reasons for decision, the Tribunal set out a definition of compelling circumstances derived from High Court authority. The Minister argued that it was clear that the Tribunal had considered whether there were compelling or compassionate circumstances affecting the interests of an Australian citizen, but had decided that there were only compassionate circumstances and not compelling circumstances. The Minister argued that it was implicit in the Tribunal’s reasons for decision that it had considered and rejected the possibility of there being compelling circumstances affecting the interests of an Australian citizen.
I accept the Minister’s submissions on this ground. Reading the Tribunal’s reasons for decision as a whole, it is clear that the Tribunal was well aware of the need to consider whether there were compelling circumstances affecting an Australian citizen justifying the waiver of public interest criterion 4020(1). That is apparent from:
a)paragraph 32 of the Tribunal’s reasons for decision, where it summarised the effect of public interest criterion 4020(4);
b)paragraph 33 of the Tribunal’s reasons for decision, where it set out the definition of compelling for the purposes of public interest criterion 4020(4);
c)paragraph 40 of the Tribunal’s reasons for decision, where it referred again to compelling or compassionate circumstances; and
d)the heading before paragraph 35 of the Tribunal’s reasons for decision, where it asked:
Are there compelling or compassionate circumstances affecting Mr Abassi?
In my view, the Tribunal answered that question by saying, in effect, that there were compassionate but not compelling circumstances affecting the interests of an Australian citizen. Ground 1 is not made out.
Ground 2
The second ground of review in the application is:
The decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to apply the correct test, or failed to consider a mandatory relevant consideration, or failed to consider an argument arising on the materials.
Particulars
(a)The critical factor animating the decision of the Tribunal was that Mr Abassi should not be allowed to take further advantage of the circumstances by which he obtained an Orphan Relative visa and Australian citizenship: the Tribunal found this factor outweighed the compassionate circumstances favouring waiver of PIC 4020.
(b)When approaching the evaluation of whether to waive PIC 4020 under PIC 4020(4), the Tribunal was ignorant of s 34 of the Australian Citizenship Act 2007 (Cth), pursuant to which the Minister may take steps to revoke Mr Abassi’s citizenship if satisfied his citizenship was obtained as a result of migration-related fraud.
(c)PIC 4020(4) is to be construed as requiring an awareness of the mechanism under s 34 of the Citizenship Act, in the evaluation of whether compassionate circumstances justify the waiver of PIC 4020.
The applicants argued that the Tribunal’s refusal to waive the requirements of public interest criterion 4020(1) was dominated by the first applicant’s deceit in obtaining his orphan relative visa and then Australian citizenship. However, in considering the question of waiver, the applicants argued that the Tribunal failed to have regard to s.34 of the Australian Citizenship Act 2007, which relevantly provided:
34. Revocation by Minister—offences or fraud
…
(2)The Minister may, by writing, revoke a person’s Australian citizenship if:
…
(b) any of the following apply:
…
(iii)the person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud within the meaning of subsection (6); …
…
(6) For the purposes of this section, a person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud if and only if:
(a) at any time, the person was convicted of an offence against:
…
(ii) section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code;
that the person committed at any time before the Minister gave the approval; and
(b) the act or omission that constituted the offence was connected with the person’s entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.
The Criminal Code Act 1995 relevantly provided:
134.1Obtaining property by deception
(1) A person is guilty of an offence if:
(a) the person, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property; and
(b) the property belongs to a Commonwealth entity.
Penalty: Imprisonment for 10 years.
…
134.2 Obtaining a financial advantage by deception
(1)A person is guilty of an offence if:
(a) the person, by a deception, dishonestly obtains a financial advantage from another person; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
…
135.1General dishonesty
Obtaining a gain
(1) A person is guilty of an offence if:
(a) the person does anything with the intention of dishonestly obtaining a gain from another person; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 5 years.
…
135.2 Obtaining financial advantage
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and
(ab) the person knows or believes that he or she is not eligible to receive that financial advantage; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 12 months.
…
135.4 Conspiracy to defraud
Obtaining a gain
(1) A person is guilty of an offence if:
(a) the person conspires with another person with the intention of dishonestly obtaining a gain from a third person; and
(b) the third person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
…
136.1False or misleading statements in applications
Knowledge
(1) A person is guilty of an offence if:
(a) the person makes a statement (whether orally, in a document or in any other way); and
(b) the person does so knowing that the statement:
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is misleading; and
(c) the statement is made in, or in connection with:
(i) an application for a licence, permit or authority; or
(ii) an application for registration; or
(iii) an application or claim for a benefit; and
(d) any of the following subparagraphs applies:
(i) the statement is made to a Commonwealth entity;
(ii) the statement is made to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth;
(iii) the statement is made in compliance or purported compliance with a law of the Commonwealth.
Penalty: Imprisonment for 12 months.
(1A)Absolute liability applies to each of the subparagraph (1)(d)(i), (ii) and (iii) elements of the offence.
(2)Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if the statement is not false or misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).
(3)Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3).
…
The applicants relied on Victoria v Commonwealth (Kakariki/Shipwrecks case) (1937) 58 CLR 618; [1938] ALR 97; (1937) 11 ALJR 344a, per Dixon J at page 630, to argue that subordinate legislation, such as public interest criterion 4020, must be construed conformably with every Commonwealth Act of Parliament, or be invalid to the extent of any inconsistency. The Minister did not cavil with that proposition.
The applicants then argued that s.34 of the Citizenship Act contains:
the exclusive procedure by which a person may suffer consequences by reason of matters that engage that provision, and that their citizenship is otherwise not to be questioned. PIC 4020 must be construed so as to conform to the negative implication deriving from s 34 of the Citizenship Act.
The applicants argued that, by s.34 of the Citizenship Act, the Tribunal was precluded from visiting consequences upon the applicants that fall within the ambit of s.34 of the Citizenship Act, except as that provision specifies.
In the alternative, the applicants submitted orally at the hearing before this court that, if the Tribunal wished to rely adversely on matters within the same subject matter or scope as s.34 of the Citizenship Act, then the Tribunal needed to consider the matters in s.34 of the Citizenship Act, and, by cross reference, the relevant matters in the Criminal Code Act. The applicants argued that the Tribunal’s failure to do so meant that it had failed to take into account mandatory relevant considerations and thereby fell into jurisdictional error.
The Minister argued that, leaving aside the question of whether s.34 of the Citizenship Act evinced an intention to cover any particular field, s.34 only addresses the revocation of citizenship. The Minister noted that the Tribunal was not dealing with the revocation of the first applicant’s citizenship; it was dealing with the second applicant’s application for a partner visa.
The Minister argued that there was no basis in s.34 of the Citizenship Act to conclude that it exhaustively stated the consequences for a non-citizen of her partner providing false information to the Minister.
In relation to the applicants’ alternative, oral submission, the Minister argued that, in a Peko-Wallsend[1] sense, there was nothing in public interest criterion 4020 to indicate that s.34 of the Citizenship Act was a mandatory consideration when applying public interest criterion 4020.
[1] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40.
I accept the Minister’s submissions on this ground. There is simply no reason to conclude that s.34 of the Citizenship Act, which deals with revocation of citizenship, has any bearing on the application of public interest criterion 4020 in the present case. Section 34 of the Citizenship Act does not contain the negative implication asserted by the applicants. Ground 2 is not made out.
Ground 3
The third ground of review in the application is:
The decision of the Tribunal is affected by legal unreasonableness, irrationalness or illogicality in that the Tribunal made an internally contradictory statement.
Particulars
(a)The statement is at paragraph 43 of the reasons, being “While cognisant of Dr Hamimi’s statement that Mr Abassi suffers from chronic depression and tension headache, there is no evidence before the Tribunal that Mr Abassi’s mental health is seriously compromised.”
The applicants submitted that:
It is, with respect, absurd to suggest that a person who suffers from “chronic depression” does thereby not have their mental health “seriously compromised”.
The gist of the applicants’ submission was that anyone who has chronic depression has seriously compromised mental health. However, the Tribunal evidently took the view that chronic depression has a range of severity, such that not all points in the range would amount to seriously compromised mental health, particularly in circumstances where there was evidence that the first applicant’s chronic depression was being treated with medication.
Consequently, it was not irrational for the Tribunal to accept that the first applicant had chronic depression, but also to consider that there was no evidence that his mental health was seriously compromised. Ground 3 is not made out.
Ground 4
The fourth ground of review in the application is:
The decision of the Tribunal is affected by jurisdictional error because the Tribunal misunderstood or misconstrued the evidence advanced to it, or failed to apply the correct test because it wrongly approached the discretion under PIC 4020(4) by focussing on circumstances from the perspective of the first applicant, and failed to consider the circumstances from the perspective of the second applicant and their son.
The applicants accepted that the Tribunal considered the first applicant’s suffering caused by being separated from his wife and son. However, the applicants argued that the Tribunal failed to consider that the second applicant and her son’s suffering caused by being separated from their husband and father also affected the first applicant’s interests as an Australian citizen. That is, the first applicant suffered because he would have known that his wife and son were affected by the separation from him.
The Minister submitted that the Tribunal correctly focussed on the compassionate circumstances affecting the first applicant’s interests, as that is precisely what public interest criterion 4020(4) requires. However, the Minister also submitted that:
a)the Tribunal demonstrated an awareness of the difficulties faced by the second applicant and her son in paragraph 36 of the Tribunal’s reasons for decision; and
b)the Tribunal noted in paragraph 39 of its reasons for decision the effect that the familial separation was having on the first applicant’s mental health.
In addition, the Tribunal recognised in paragraph 35 of its reasons for decision the effect on the first applicant of the family separation, saying that:
he is very distressed about the ongoing disruption of his family unity.
In my view, the Tribunal’s acknowledgement of the first applicant’s distress encompassed both the distress he felt from the separation and the distress he would have felt from knowing that his wife and child were also affected by the separation. It seems to me that the Tribunal adequately considered the issue.
The applicants also relied on Mohamed v Minister for Immigration and Border Protection [2016] FCCA 3231. However, that case concerned a failure to consider a certain item of evidence. The applicants in the present case have not pointed to any item of evidence that the Tribunal failed to consider. Consequently, Mohamed is not helpful in the present context. Ground 4 is not made out.
Conclusion
As none of the applicants’ grounds has been made out, the application will be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 21 September 2018
0
16
4