Minister for Home Affairs v Omar

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FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Omar [2019] FCAFC 188

Appeal from: Omar v Minister for Home Affairs [2019] FCA 279
File number: VID 307 of 2019
Judges: ALLSOP CJ, BROMBERG, ROBERTSON, GRIFFITHS AND PERRY  JJ
Date of judgment: 29 October 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 – Assistant Minister’s failure to engage in an active intellectual process with the representation – amended notice of contention upheld – appeal dismissed, with costs
Legislation:

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 10(1)

Acts Interpretation Act 1901 (Cth) s 25D

Migration Act 1958 (Cth) ss 65, 501(3), 501(6), 501CA(1), 501CA(3), 501CA(4), 501CA(7), 501G(1)

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 Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008)
Cases cited:

Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

DOB18 v Minister for Home Affairs [2019] FCAFC 63

Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48

Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 260 FCR 523

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Navoto v Minister for Home Affairs [2019] FCAFC 135

Omar v Minister for Home Affairs [2019] FCA 279

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Tickner v Chapman [1995] FCA 1726; 57 FCR 451

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 561
Date of hearing: 2 September 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 47
Counsel for the Appellant: S Lloyd SC and G A Hill
Solicitor for the Appellant: Sparke Helmore Lawyers
Counsel for the Respondent: N Wood
Solicitor for the Respondent: Victoria Legal Aid

ORDERS

VID 307 of 2019
BETWEEN:

MINISTER FOR HOME AFFAIRS

Appellant
AND:

MUHUMED HASSAN OMAR

Respondent

JUDGES:

ALLSOP CJ, BROMBERG,…

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Details
Case
[2019] FCAFC 188
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal by the Minister for Home Affairs against the decision of the Federal Circuit Court to set aside the decision of the Assistant Minister for Immigration and Border Protection to refuse the respondent's application for the revocation of the cancellation of his visa. The respondent, a citizen of Somalia, had arrived in Australia at the age of 15 and held a partner visa. His visa was cancelled due to his criminal record and he applied for the revocation of the cancellation under s 501CA(4) of the Migration Act 1958 (Cth). The court had to determine whether the Assistant Minister's decision was legally sound, particularly focusing on whether the Assistant Minister had considered all relevant submissions and evidence, including the respondent's claims of harm if returned to Somalia due to his mental health conditions.

The key legal issue before the court was whether the Assistant Minister had engaged in an active intellectual process with the respondent's representations concerning the risk of harm he would face if returned to Somalia. The court had to assess whether the Assistant Minister's decision-making process was flawed due to a failure to properly consider the respondent's submissions. The court also had to examine whether the Assistant Minister was required to consider non-refoulement obligations when deciding on the revocation of a visa cancellation.

The court found that the Assistant Minister had failed to properly engage with the respondent's representations concerning the risk of harm in Somalia. The court held that the Assistant Minister did not adequately consider the respondent's claims of harm due to his mental health conditions and intellectual disability. The court emphasised that the Assistant Minister must actively engage with all submissions of substance and cannot simply rely on pre-set options provided by the Department. The court also noted that the Assistant Minister's decision-making process did not adequately weigh the respondent's claims of harm against the risk he posed to the Australian community. The court concluded that the Assistant Minister's decision was flawed and remitted the matter back to the Assistant Minister for reconsideration.

The court dismissed the appeal and ordered the appellant to pay the respondent's costs. The court emphasised the importance of ensuring that decision-makers properly consider all relevant submissions and evidence, particularly those concerning the potential harm an individual may face if returned to their country of origin. The court's decision underscores the need for decision-makers to engage in an active intellectual process and not merely select pre-set options without proper consideration of the individual circumstances.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs, as agreed or taxed.

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

Background

Background to the litigation

As will shortly emerge, we consider that issue (e) should be determined in the respondent’s favour, consequently the other issues need not be determined, including the challenge to the correctness of Ibrahim. Also, although issue (a) need not be determined separately from issue (e), there is some overlap between the two issues inasmuch as there are some factual matters which underpin both issues. Summary of background facts The respondent is a citizen of Somalia. He arrived in Australia in November 2001, aged 15 years. He is now 33 years old. His mother died before he could remember and his father died when he was 7 years old. Until his arrival in Australia he believed his aunt to be his biological mother, and her children to be his siblings. Three years after civil war in Somalia broke out in 1991, when aged 8 he was recruited forcibly as a child soldier by a militia group. He was rescued from the militia by a family friend and returned to his aunt. Soon after his rescue he fled to a refugee camp in Kenya with his cousins, while his aunt remained in Somalia. He remained in the refugee camp for 6 years, while aged 8-14. He came to Australia in 2001 with his cousins to join his aunt who had come some years previously. He held a partner visa as a member of his aunt’s family unit. It is undisputed that he suffers from severe mental health problems, including schizophrenia, as well as having a severe intellectual disability. On 18 July 2016, the respondent’s partner visa was cancelled under s 501(3A), on the basis that he had a “substantial criminal record” by operation of s 501(6)(a) and, at the time of cancellation, he was serving a full-time sentence of imprisonment of 12 months for contravening a community corrections order (see ss 501(3A)(a)(i) and (b)). (a) Respondent’s representations concerning risk of harm in Somalia arising from his mental health conditions The respondent made representations under s 501CA(4) in support of his request that the mandatory visa cancellation be revoked. He sent a request for revocation of a mandatory visa cancellation dated 3 August 2016. Together with the request was a personal details form which indicated that he suffered from an intellectual disability and schizophrenia. He indicated that a more detailed submission in support of his revocation request would be provided. By a letter dated 8 December 2016, Victoria Legal Aid (acting for the respondent) made detailed representations in support of the revocation request. As instructed by the Department in its letter dated 18 July 2016 to the respondent, the representations addressed the parts of the Minister’s Direction No 65 which were relevant to the respondent’s circumstances. It is unnecessary to summarise all of those representations. For the purposes of issue (e), it is sufficient to focus upon the representations made on behalf of the respondent in respect of his mental illness and the risk of harm he faced if he were returned to Somalia because of his mental health and intellectual problems.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is desirable to set out in full paragraphs 91 to 98 of the statement of reasons, which record the Assistant Minister’s conclusions:CONCLUSION91.I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by s501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original mandatory cancellation decision (original decision) should be revoked for the purposes of s501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, Mr OMAR.92.I concluded Mr OMAR has made representations in accordance with the invitation. 93.I am not satisfied that Mr OMAR passes the character test (as defined by s501). 94.In considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr OMAR, some of which are violent in nature.95.Further, I find that the Australian community could be exposed to harm should Mr OMAR reoffend in a similar fashion involving violence. I could not rule out the possibility of further offending by Mr OMAR.96.I am aware that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr OMAR, than I otherwise would, because he has lived in Australia for most of his life. 97.In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr OMAR represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations as described above. These include his lengthy residence and bonds, his claims of harm if returned to Somalia, his health including his psychiatric and neuropsychological conditions, his employment albeit limited and the hardship Mr OMAR and his family will endure in the event the original decision is not revoked. 98.Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision under s 501(3A) to cancel Mr OMAR's visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr OMAR's Class BC Subclass 100 Partner (Migrant) visa remains cancelled. The primary judgment summarised The primary judge’s decision to set aside the Assistant Minister’s decision turned on the following three propositions (as identified by the Assistant Minister on the appeal):(a)the respondent had made a submission of substance that he claimed to fear harm in Somalia on the basis of refugee convention grounds and that those claims would not be properly considered in any future protection visa application;(b)referring to BCR16, non-refoulement obligations have a very different role in the exercise of a discretionary power such as that under s 501CA(4) and in a decision whether to grant a protection visa; and(c)a decision-maker under s 501CA is not permitted to postpone consideration of non-refoulement obligations to a future protection visa application, but rather must consider all submissions of substance as to why there is “another reason” to revoke the cancellation decision.

Ratio Decidendi

Legal Principle Established

Presumably, in accordance with the normal practice, the Assistant Minister was provided by the Department with a brief of materials to guide his decision-making. A copy of the brief was not, however, included in the appeal book (see Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [19] per Mortimer J, with whom Moshinsky J agreed), and no reference is made to it by the primary judge. The appeal book did contain a single page document headed “Attachment 1”, which presumably is an attachment to the departmental brief. It is headed “REVOCATION UNDER s 501CA OF THE MIGRATION ACT 1958 – DECISION BY THE ASSISTANT MINISTER FOR HOME AFFAIRS”. This single page document commenced with the following statement and instruction:I have considered all relevant matters including an assessment of the character test as defined by s501 of the Migration Act 1958 (the Act), and all evidence before me provided by, or on behalf of, or in relation to Mr Muhumed Hassan OMAR in connection with the possible revocation under s 501CA(4) of the Act, of the original decision under s 501(3A) of the Act to mandatorily cancel Mr OMAR's Class BC Subclass 100 Partner (Migrant) visa.(Please circle the option you select) Three options were provided for the Assistant Minister to choose from. The first two were described as “Revocation outcomes”, while the third, which was circled by the Assistant Minister, was described as the “Non-revocation outcome”. It stated:(c)Mr OMAR has made representations about revocation of the original decision in accordance with the invitation and I am not satisfied that Mr OMAR passes the character test (as defined by s501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, the power in s501CA(4) of the Act to revoke the original decision is not enlivened and Mr OMAR's Class BC Subclass 100 Partner (Migrant) visa remains cancelled. My reasons for this decision are set out in the attached Statement of Reasons. The document was signed by the Assistant Minister on 27 February 2018. It was accompanied by a 13 page statement of reasons, also signed and dated by the Assistant Minister on that day (without any alteration), together with detailed attachments, including copies of the various representations made on behalf of the respondent and the documentary material provided in support of those representations. It is desirable to set out those parts of the Assistant Minister’s statement of reasons which address the respondent’s representations and documents provided by him concerning the risk he said he faced of serious harm in Somalia because of his serious mental illness and intellectual disability. Paragraph 12 states:12.In the representations/documents submitted by or on his behalf, Mr OMAR has articulated reasons why the original decision should be revoked, which include:•If returned to Somalia, he will be subjected to cruel, inhumane and degrading treatment due to his mental illness•the mentally ill are usually subjected to violations of their basic human rights and denial of civil, political, economic, social and cultural rights within mental health facilities and the community•he would be exposed to the risk of deficient treatment in Somalia•he may be seriously harmed based on his ethnicity, imputed political opinion, disability and impairments•he has been diagnosed with mental health issues, paranoid schizophrenia and an intellectual disability•he has been absent from Somalia since age eight and he has no social or family supports and an impaired cognitive capacity that would hinder forming networks himself•he will be disadvantaged in finding accommodation, basic income and other necessities •his offences were at the lower end of seriousness in their respective categories and his criminal capacity is reduced due to his state of psychosis and intoxication at the time of offending•his current compliance with his medication, stable mental health and efforts to address his rehabilitation reduces his risk profile as acceptable•he is in a restricted and isolated environment which is likely to compromise his mental stability and he faces the prospect of remaining in detention for a lengthy period if he lodges for (sic) a Protection visa. In the event the Protection visa is refused and he cannot be returned to Somalia, he faces indefinite detention.…