Mopeke v Assistant Minister for Home Affairs
[2018] FCA 690
•18 May 2018
FEDERAL COURT OF AUSTRALIA
Mopeke v Assistant Minister for Home Affairs [2018] FCA 690
File number: QUD 167 of 2018 Judge: RANGIAH J Date of judgment: 18 May 2018 Catchwords: MIGRATION – where respondent refused to revoke decision to cancel applicant’s visa – whether respondent considered all material provided – where failure to consider material amounted to jurisdictional error – decision quashed and matter remitted Legislation: Migration Act 1958 (Cth) ss 501(3A), 501CA(3), 501CA(4) and 501G(1)(e) Cases cited: Coker v Minister for Immigration and Border Protection [2017] FCA 929
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431
Picard v Minister for Immigration and Border Protection [2015] FCA 1430
Date of hearing: 3 May 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: The applicant appeared in person via video conference Counsel for the Respondent: Mr B McGlade Solicitor for the Respondent: Clayton Utz
Table of Corrections 19 July 2018 On the coversheet, “s 501CA(4)(c)” has been removed. 19 July 2018 In paragraph 26, “s 501CA(4)(c)” has been replaced with “s 501CA(4)”. ORDERS
QUD 167 of 2018 BETWEEN: JOHNSON HONE MOPEKE
Applicant
AND: ASSISTANT MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
18 MAY 2018
THE COURT ORDERS THAT:
1.The respondent’s decision made on 26 February 2018 refusing to revoke the decision to cancel the applicant’s visa is quashed.
2.The respondent make a decision as to whether to revoke the decision to cancel the applicant’s visa according to law.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
This an application for judicial review of a decision made by the respondent (the Minister) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act) refusing to revoke a decision to cancel the applicant’s visa.
The applicant is a citizen of New Zealand who has lived in Australia since 1998. On 16 June 2017, he was convicted of eight counts of contravening a domestic violence order and was sentenced to 12 months imprisonment for each offence, each sentence to be served concurrently.
The effect of s 501(3A) of the Act is that the Minister must cancel a visa if satisfied that the visa holder does not pass the character test because, relevantly, the visa holder has been sentenced to a term of imprisonment of 12 months or more and is serving a sentence of imprisonment on a full-time basis. On 3 October 2017, the applicant’s visa was cancelled. The applicant was notified of the cancellation decision in accordance with s 501CA(3) of the Act and was invited to make representations about revocation of the decision.
The applicant made representations dated 26 October 2017 seeking the revocation of the cancellation decision. The submissions stated, amongst other things, that the applicant had been diagnosed with leukaemia about 4 years previously and had been laid off by his employer as a result. He became depressed and started using the drug “Ice”, resulting in his criminal offending. He said that he had addressed his addiction and claimed that he would not reoffend in the future. He indicated that his removal to New Zealand would have a severe impact upon his partner, his three children and his grandchildren. He also made a second representation dated 27 November 2017 elaborating upon the submissions he had previously made and attaching a number of documents. Those documents included a letter of support dated 30 November 2017 from his partner, Ms Taylor, the victim of the domestic violence offences.
Section 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
…
(ii)that there is another reason why the original decision should be revoked.
On 26 February 2018, the Minister decided not to revoke the cancellation decision and provided reasons for his decision.
The applicant filed an originating application on 14 March 2018 seeking review of the Minister’s decision. The originating application sets out the following grounds:
5. The respondent took into account irrelevant considerations.
6. The respondent failed to take relevant consideration into account.
7.The respondent in making its decision did not comply with rules of natural justice/procedural fairness
8. The respondent decision involved an error of law
9.The respondent failed to exercise the discretion under s 501(3QA) and s 501 CA(4) of the migration act 1958(Cth)
10.The respondent did not properly apply s 501(6)(a) and s 501(7)(a)(b) or (c) of the migration act 1958 (Cth)
In an affidavit accompanying the originating application, the applicant set out a further ground that:
When the Minister of Immigration made his decision he did not take into account the impact it will have on my Partner of 33 years the impact it will have on my 3 Children and the impact it will have on my 3 grand Children if I am to be removed from Australia as I have Leukaemia.
The applicant represented himself at the hearing of his application, appearing via video-link from the Yongah Hill Detention Centre in Western Australia. In oral submissions, the applicant submitted that the Minister had not read the letter written by his partner, which indicated, inter alia, that she wanted to be reunited with him. The applicant also submitted that the Minister had not taken into account the parts of his submissions which indicated that his removal to New Zealand would have a devastating impact upon his family. Further, the applicant submitted that the Minister failed to take into account the hardship that would be caused to him by being deprived of his family’s support while he is battling leukaemia.
The applicant did not provide particulars of grounds 5, 7, 8, 9 and 10 of his originating application or advance any written or oral submissions in support of those grounds. Those grounds cannot succeed. The applicant instead focussed on two grounds.
The first ground is that the respondent failed to take into account a relevant consideration, namely the impact of his removal from Australia upon his partner, his children and his grandchildren. However, the factual premise of that ground is not supported upon examination of the Minister’s reasons. The Minister expressly noted that the applicant had articulated that the cancellation decision should be revoked for reasons including the impact on his partner, children and grandchildren. The Minister found that it would be in the best interests of the applicant’s infant grandchildren for the decision to be revoked. The Minister found that the applicant’s family members may suffer emotional, practical and financial hardship if he were removed. Contrary to the applicant’s submission, the Minister did take into account the impact of the applicant’s removal upon his partner, children and grandchildren. This ground cannot succeed.
The second ground is that the Minister failed to consider significant parts of the material that the applicant had placed before the Minister. Although this ground was not articulated in the originating application, it was argued orally. The Minister’s legal representatives, quite properly given that the applicant is self-represented, took no objection to this ground being raised.
There were two aspects of the material which I understood the applicant to assert were not considered. The first was said to arise from a misunderstanding by the Minister as to an issue the applicant had raised. In his second representation to the Minister, the applicant said:
My own doctor said it would not be good for me to lose the support I have in my family while I am battling this disease. I have addressed my addiction and depression issues and have organised my treatment which I urgently need.
The Minister referred to this issue in his reasons, as follows:
I have also given regard to his statement that his doctor advises it would not be good for him to lose his family support while he is battling his addiction.
The applicant submits that he had referred to his need for family support in his battle with leukaemia, whereas the Minister misinterpreted this as a reference to his battle with addiction. The applicant’s submission can be understood to be that the Minister failed to consider a claim he had made, namely the hardship that would be caused to the applicant in battling leukaemia without his family’s support.
The statement made by the applicant was ambiguous. The reference to the loss of his family’s support “while I am battling this disease” could have been referrable to his drug addiction, or his depression, or his leukaemia, or all three. In the passage I have quoted from the Minister’s reasons, the Minister interpreted the applicant’s statement as referring only to his drug addiction. However, the Minister had earlier discussed in some detail the applicant’s diagnosis with leukaemia and his depression and the role it played in his offending. Later, the Minister said that he had considered the hardship to the applicant if the cancellation decision was not revoked. I do not think it can be said that the Minister overlooked the hardship the applicant would face on account of the deprivation of his family’s support in his battle with leukaemia if the cancellation decision was not revoked. Therefore, this aspect of the applicant’s argument must fail.
The applicant also submitted that the Minister had failed to read the letter dated 30 November 2017 written by his partner, Ms Taylor. In his reasons, the Minister said:
I have considered Mr MOPEKE’s representations that he is concerned about the impact of his removal on his immediate family. He states that he has a “close-knit” family that will fall apart without him. I note that he states Ms Taylor loves him and that she is in the process of applying to have the current protection order removed so he can return home to her.
I have considered the effect of non-revocation upon Mr MOPEKE’S immediate family in Australia. In the absence of letters of support from family members attesting to a close bond with Mr MOPEKE, I accept that they may suffer emotional, practical and financial hardship should Mr MOPEKE’s visa cancellation not be revoked. However, I note that Mr MOPEKE’s offending includes numerous contraventions of a domestic violence order put in place to protect Ms Taylor.
(Underlining added.)
Section 501G(1)(e) of the Act requires the Minister to set out the reasons (other than non-disclosable information) for the decision. There was no express reference in the reasons to Ms Taylor’s letter, but there did not necessarily have to be. There was no requirement for the Minister to refer to every piece of evidence he considered.
However, there is a real question as to whether the Minister considered Ms Taylor’s letter at all. The reasons assert that the Minister had:
“...considered all relevant matters including…all evidence available to me, including the evidence provided by, or on behalf of, (Name)”.
That assertion seems to have been taken from a standard-form precedent, but the author omitted to substitute the applicant’s name for the notation “(Name)”. That general, incomplete and unreliable assertion is contradicted by the Minister’s express and specific reference to “the absence of letters of support from family members attesting to a close bond with family members”, when Ms Taylor’s letter obviously answered that description. That reference provides direct evidence that the Minister overlooked the letter. That evidence is not overcome by other general assertions made by the Minister in the decision record and the reasons that he had considered all the evidence provided to him. I conclude that the Minister did not consider Ms Taylor’s letter.
In Picard v Minister for Immigration and Border Protection [2015] FCA 1430, Tracey J referring to s 501CA(4) of the Act said at [42]:
If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant’s case the Minister is bound to consider it.
[See also Coker v Minister for Immigration and Border Protection [2017] FCA 929 at [43], [56]].
Justice Tracey cannot be understood as suggesting that the Minister is only bound to consider critical and relevant information relating to the applicant’s personal circumstances. The Minister must be equally bound to consider critical and relevant information provided to him about other relevant matters, such as the hardship that would be caused to others as a result of the cancellation decision.
More generally, whether an administrative decision-maker is obliged to consider particular material depends upon the nature of the case and the nature of the material; particularly the cogency of the material and its place in the assessment of the applicant’s claims: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]–[112]; MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431 at [70]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [52].
The Minister accepted that in the absence of any letters of support attesting to a close bond, the applicant’s family members “may suffer” emotional, practical and financial hardship if the cancellation decision was not revoked and the applicant were removed from Australia. The Minister then seemed to indicate that there would not (or might not) be hardship (or substantial hardship) caused to Ms Taylor if the applicant were removed, as she had been the victim of the applicant’s domestic violence offences.
In this context, the letter provided by Ms Taylor was an important piece of evidence. It was important because it confirmed that Ms Taylor wished to “have him back with us so that we can support him with his positive changes moving forward and to heal as a family together”. Ms Taylor evidently wished to have her family reunited. In his mistaken belief that there were no letters of support from family members attesting to a close bond with the applicant, the Minister was prepared only to accept that the family members “may suffer” hardship. However, the effect of Ms Taylor’s letter was to indicate that she would suffer hardship. Thus, the hardship that would be caused to Ms Taylor from the applicant’s removal was not merely a matter of assertion by the applicant, as the Minister thought, but was supported by direct evidence from Ms Taylor. That evidence was particularly cogent as it came from the victim of the offences which gave rise to the cancellation of the applicant’s visa. It is apparent from Ms Taylor’s letter that she wanted the violence to stop, but did not want the breakdown of her family unit as a result of the applicant’s removal from Australia. Her letter reflects the complexities and contradictions that can be involved where there is domestic violence, matters likely to have been considered by the Minister had he read Ms Taylor’s letter.
The letter written by Ms Taylor was a critical and relevant part of the representations the applicant made to the Minister. In my opinion, the Minister’s failure to consider the content of the letter amounted to jurisdictional error.
The Minister’s decision must be quashed and the Minister must be ordered to make the decision under s 501CA(4) of the Act according to law.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 18 May 2018
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