MIGRATION – appeal from orders of the Federal Court of Australia dismissing an application for judicial review of a decision of the Minister – where Minister exercised discretion under s 501(1) to refuse to grant protection visa – no error by primary judge established – appeal dismissed
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
Case
[2020] FCAFC 94
Decision Date
CaseChat Overview and Summary
In this case, the appellant, who had arrived in Australia by boat and had been granted a temporary visa, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a protection visa under section 501(1) of the Migration Act 1958. The decision was based on the Minister's determination that the appellant did not meet the character test under section 501(6)(d)(v) of the Act. The primary issue before the court was whether the Minister's decision was legally unreasonable and whether the court could find that the decision was manifestly unjust and disproportionate.
The court examined the incident on 12 January 2014, where the appellant, after receiving distressing news about his mother's death, became agitated and made threats to police. Despite these threats, the police did not arrest or detain the appellant, viewing the incident as a minor occurrence resulting from the appellant's distress. The court also noted that the appellant's visa application was made after the incident, and there were discrepancies in the records regarding his detention and the reasons provided by the Department.
The court concluded that the primary judge's findings were correct and that no error had been established in the Minister's decision. The court found that the Minister's consideration of the appellant's circumstances and the potential risk he posed to the Australian community was not legally unreasonable. The court further held that the decision, while harsh, did not reach the level of being manifestly unjust or disproportionate.
As a result, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs as assessed or agreed.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
It is necessary to set out the facts and circumstances of the appellant’s case in some detail to fully appreciate why that is so.RELEVANT FACTS AND CIRCUMSTANCES The appellant arrived in Australia by boat on 15 November 2012. He was detained in immigration detention for a period of time, presumably on the basis that he did not have a visa and was accordingly an unlawful non-citizen. On about 16 January 2013, the appellant was granted a Temporary Humanitarian Stay visa and an accompanying bridging visa. He was accordingly released from immigration detention. He continued to peacefully reside in the Australian community without any adverse incident or occurrence for almost a year until the events that ultimately became the basis for the Minister’s decision occurred. The incident on 12 January 2014 The following account of the incident that occurred on 12 January 2014 is taken mainly from primary source documents, including the contemporaneous documentary records. The appellant gave an account of the incident in both a letter and statement he provided to the Minister. That account was consistent with, or at least not contradicted in any way by, the contemporaneous records. On 12 January 2014, the appellant was at certain premises in inner Sydney for the purposes of getting a massage. He paid for that massage, but, before he received it, he received a telephone call informing him that his mother had been killed by a bomb blast in Syria. Not surprisingly, he became upset and distressed upon the receipt of that news. He also demanded his money back as he had not received the massage. The combination of those two circumstances resulted in a dispute with the owner of the premises. The police were eventually called. The following description of the events is taken from a contemporaneous police report:About 20:45pm on Sunday 12th January 2014 police attended Sabal Massage, 810 George St Haymarket, following calls to police for a dispute for a refund payment of a massage received by [the appellant]. [The appellant] is currently residing in [Sydney suburb] while completing a TAFE course and is a temporary resident in Australia holding refugee status. Police spoke with [the appellant] outside the location where he stated that he wanted to be refunded after his massage. Police spoke with management of the massage who stated to police that [the appellant] had received his massage as advertised, despite [the appellant] removing his underwear before the massage, [the appellant] stated to police that he stopped the massage after receiving a call from a family member informing him of the death of his mother in his home country of Syria. After police spoke with staff of the massage parlour, [the appellant’s] behaviour became more erratic and he became unable to control his emotions … While speaking to police [the appellant] stated that he ‘no longer wanted to live in this world’ and told police that he wished ‘to return to Syria, put a vest and go boom’ while motioning an explosion with his arms. Intel report relating to threats in Syria to be created. Police made attempts to calm [the appellant] as he increasingly became more emotionally unstable. He said to police ‘I don’t want to hurt you, only myself.’ Police became concerned for the mental state of [the appellant] as [sic] requested an ambulance to attend for a mental health assessment, due to [the appellant] saying that he wanted to hurt himself, he no longer wished to live and due to him physically trying to hurt himself, by hitting a wall with his fist and his forehead. Ambulance officers attended a short time later and [the appellant] was conveyed to St Vincents Hospital about 21:30pm for mental health assessment … Police assisted with the convey and remained at St Vincents until 23:50pm, while [the appellant] awaited assessment from the mental health team.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
In his reasons for judgment, the primary judge observed (Judgment at [99]):There must be a point at which a perceived risk is so unlikely, or the nature of the risk is so trivial, that a decision to refuse a visa under s 501(1), on the basis that the Minister was not satisfied that a visa applicant passed the character test by reason of s 501(6)(d)(v), would be legally unreasonable in circumstances where the consequences of the decision are of the kind they are here. His Honour found that this was not such a case. White and Bromwich JJ agree. I respectfully disagree. In my view this is just such a case. The flaws and deficiencies in the Minister’s reasoning and factual findings concerning the supposed risk that the appellant might pose to the Australian community and the perfunctory and formulaic consideration that the Minister gave to the harsh and seriously deleterious effect that his decision would have on the appellant compel me to the conclusion that this decision reached the point of unreasonableness referred to by the primary judge. Not only that, but when one stands back and considers the appellant’s circumstances and the effect of the decision, the conclusion that this decision was plainly unjust and manifestly disproportionate is, in my view, unavoidable. It is necessary to set out the facts and circumstances of the appellant’s case in some detail to fully appreciate why that is so.RELEVANT FACTS AND CIRCUMSTANCES The appellant arrived in Australia by boat on 15 November 2012. He was detained in immigration detention for a period of time, presumably on the basis that he did not have a visa and was accordingly an unlawful non-citizen. On about 16 January 2013, the appellant was granted a Temporary Humanitarian Stay visa and an accompanying bridging visa. He was accordingly released from immigration detention. He continued to peacefully reside in the Australian community without any adverse incident or occurrence for almost a year until the events that ultimately became the basis for the Minister’s decision occurred. The incident on 12 January 2014 The following account of the incident that occurred on 12 January 2014 is taken mainly from primary source documents, including the contemporaneous documentary records. The appellant gave an account of the incident in both a letter and statement he provided to the Minister. That account was consistent with, or at least not contradicted in any way by, the contemporaneous records. On 12 January 2014, the appellant was at certain premises in inner Sydney for the purposes of getting a massage. He paid for that massage, but, before he received it, he received a telephone call informing him that his mother had been killed by a bomb blast in Syria. Not surprisingly, he became upset and distressed upon the receipt of that news. He also demanded his money back as he had not received the massage. The combination of those two circumstances resulted in a dispute with the owner of the premises. The police were eventually called.
Ratio Decidendi
Legal Principle Established
The obvious inference to be drawn from the fact that the appellant was not arrested, charged, or detained by the police as a result of the incident on 12 January 2014 is that, like the psychologist at the hospital, the police assessed this incident as being a relatively minor incident which was the direct result of the appellant becoming agitated and distressed when he received news that his mother had died. The police plainly did not consider that the appellant had committed an offence, or that he presented any risk to the public. Plainly he would have been detained if that were the case. The appellant is detained in immigration detention According to the appellant, on about 3 February 2014 he was detained and placed in immigration detention at the Villawood Immigration Detention Centre. The basis upon which the appellant was detained is unclear and is not recorded in any Departmental document or other record which was included in the material that was before the Minister. As will be seen, the Minister’s reasons for refusing the appellant’s visa application make no reference to the appellant’s detention or the reasons for it. There is no suggestion in the materials that the appellant’s bridging visa was cancelled. The appellant claimed that he had applied for a renewal of his visa before the 12 January 2014 incident. He was told that he would have to wait for the Minister to make a decision in relation to that renewal application. It appears that the appellant was told that his visa had expired when he was taken into immigration detention on 3 February 2014. Whether that was in fact the case is, at best, unclear. The appellant subsequently obtained a copy of a Departmental record which gave the following reasons for the appellant’s detention:Risk Comments: Information rec’d from NSW POL that client threatened to kill himself and others with a bomb strapped to his chest (vest). That was an apparent reference to the incident which occurred on 12 January 2014. It is not entirely accurate. The police records of the incident stated only that the appellant threatened to kill himself, not “others”. The Department “risk comments” also neglect to note that the threat made by the appellant was to blow himself up in Syria. There was no suggestion that the appellant threatened to do any such thing in Australia. The police intelligence assessment On 4 February 2014, the appellant was spoken to by a police officer at the Villawood detention centre for the purposes of an intelligence assessment. As the police report extracted earlier indicated, the assessment was conducted because of the threats that the appellant made during the incident which occurred on 12 January 2014 about blowing himself up in Syria. The interview was not recorded, though the police officer who interviewed the appellant took notes in his police notebook. Those notes are the only contemporaneous record of the interview. The police officer who conducted the interview did not make a statement about the interview until June 2017. It may be inferred, in all the circumstances, that the police officer only made a statement at the request of the Minister’s Department. That inference is available because the statement was made shortly before the Department sent the appellant a notice advising that the Minister intended to refuse his visa application on character grounds. There is no other reasonable or logical explanation for why the officer would have made a statement at this time given the length of time that had passed since the incident and the fact that the police took no action in relation to it.