Shi v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Shi v Minister for Home Affairs [2023] FCAFC 136  

Appeal from: Shi v Minister for Home Affairs [2022] FCA 708
File number(s): NSD 531 of 2022
Judgment of: SNADEN, ANDERSON AND GOODMAN JJ
Date of judgment: 16 August 2023
Catchwords: MIGRATION – appeal – judicial review – refusal to revoke cancellation of the appellant’s visa – appellant made a representation that removal would place him at a considerable risk of suicide – whether Minister failed to engage with that representation in the requisite manner – appeal dismissed   
Legislation:

Migration Act 1958 (Cth), ss 501, 501CA, 501G

Criminal Code Compilation Act 1913 (WA), s 220
Cases cited:

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

ECE21v Minister for Home Affairs [2023] FCAFC 52

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

GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628

Minister forHome Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497

Shi v Minister for Home Affairs [2022] FCA 708
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 28
Date of hearing: 29 November 2022
Counsel for the Appellant: Mr P F Santucci with Mr S J Hoare (pro bono)
Counsel for the Respondent: Mr B Kaplan
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

NSD 531 of 2022
BETWEEN:

WUWEI SHI

Appellant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

SNADEN, ANDERSON AND GOODMAN JJ

DATE OF ORDER:

16 AUGUST 2023

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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


REASONS FOR JUDGMENT

THE COURT:

A.       INTRODUCTION

  1. The appellant is a citizen of the People’s Republic of China who held a resident visa until 25 June 2020 when the respondent Minister cancelled it pursuant to s 501(3A) of the Migration Act 1958 (Cth).

  2. On 18 February 2021, following representations made by the appellant to the Minister for the revocation of the Minister’s decision to cancel the appellant’s visa, the Minister made a decision under s 501CA(4) of the Act not to revoke his earlier decision.

  3. The appellant then applied for judicial review of that decision in this Court. One of the grounds of judicial review was that the Minister had failed to engage, in the requisite manner, with a representation that the appellant had made to the Minister that he was at a considerable risk of suicide if removed to China (suicide risk representation).

  4. The primary judge dismissed that application: see Shi v Minister for Home…

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Details
Case
[2023] FCAFC 136
Decision Date

CaseChat Overview and Summary

The case of Shi v Minister for Home Affairs involved an appeal against the dismissal of an application for judicial review of the Minister's decision not to revoke the cancellation of the appellant's visa. The appellant had been convicted of possessing child exploitation material and, following his conviction, his visa was cancelled under the Migration Act 1958. The appellant made representations to the Minister, including a psychological report stating that deportation would place him at considerable risk of suicide. The primary judge dismissed the application for judicial review, and the appeal was brought before the court.

The legal issue before the court was whether the Minister failed to properly engage with the suicide risk representation made by the appellant in accordance with the requirements of the Migration Act 1958. The court considered whether the Minister was required to give consideration to the suicide risk representation commensurate with its gravity, and whether the Minister's reasons reflected such consideration.

The court found that the Minister was required to advert to and understand the suicide risk representation, as explained in the Full Court decisions of Plaintiff M1/2021 and ECE21. The court noted that the Minister had referred to the suicide risk representation in his reasons, and thus there was no failure to advert to and understand that representation. The court held that the appellant had not discharged the onus of establishing that the Minister failed to properly engage with the suicide risk representation. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal, 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

The primary judge dismissed that application: see Shi v Minister for Home Affairs [2022] FCA 708 (J). For the reasons developed below, the primary judge was correct to do so.B. BACKGROUND AND THE REPRESENTATIONS MADE TO THE MINISTER On 11 June 2020, the appellant was convicted in the District Court of Western Australia for a contravention of s 220 of the Criminal Code Compilation Act 1913 (WA). That section prohibits the possession of “child exploitation material”. The appellant was sentenced to imprisonment for 14 months. His appeal against the sentence was dismissed. On 25 June 2020, the Minister (acting through a delegate) cancelled the appellant’s visa, as was required by s 501(3A) of the Act. The appellant was then notified of the Minister’s decision and invited to make representations to the Minister about the revocation of the cancellation decision. The appellant took up that invitation. The representations made on behalf of the appellant included a Psychological Report prepared by Dr Sam (Waisam) Hoong, a clinical psychologist. Dr Hoong’s report included:12 Psychological synopses...It is clear that any deportation following Mr. Shi’s serving the sentence would cause him immense psychological distress. He has very low self-esteem, that in the past has been bolstered by his ability to care for his family. He is socially inadequate so being returned to China would further reinforce and demonstrate to him his inadequacy. I consider that his deportation would put him at considerable risk of suicide. His deportation would also be very psychologically injurious to his mother and half-sister.From psychological perspective, Mr Shi’s offending was more due to his naivety and sense of woeful inadequacy, rather than any prurient interest in child pornography.(emphasis added) Dr Hoong’s report is the basis of the suicide risk representation.C. THE MINISTER’S REASONS FOR DECISION In support of his decision under s 501CA(4) of the Act not to revoke the cancellation of the appellant’s visa, the Minister provided a Statement of Reasons. As the appellant failed the character test, the focus of the Reasons was on whether there existed “another reason” why the cancellation decision should be revoked. It is sufficient, for the purposes of this appeal, to identify the following parts of the Reasons. The Minister’s reasoning with respect to the extent of impediments that the appellant would face if he were to be removed from Australia was set out at Reasons [21] to [26]:21.I have also had regard to the impediments that Mr SHI will face if removed from Australia to his home country of China in establishing himself and maintaining basic living standards.22.Mr SHI states the living standard in the village where his mother grew up is low and he does not like living there. He is not close to the relatives he has in China and he would have no support there.23.Mr SHI’s representative acknowledges he will not face any cultural and language barriers returning to China, but he will encounter financial difficulty. His relatives in China are poor and it will be difficult for Mr SHI to find employment to repay the $600,000 loan he has in Australia.24.Mr SHI suffers from stress and depression. A psychologist’s report dated 23 September 2020 states Mr SHI’s ability to care for his family in Australia bolstered his very low self-esteem; whereas removing him from his family would lower his self-esteem further. The removal would cause Mr SHI ‘immense psychological distress’, which would put him ‘at considerable risk of suicide’. 25.Mr SHI’s representative states Mr SHI does not agree with the new security law in Hong Kong and he is against the Chinese ‘one party politics’. However, he has not made his political views publicly known.26.I take into account that the living standard of the village where Mr SHI’s relatives reside may not be comparable to Australia. However, I find that, as Mr SHI would not receive any support from his relatives and does not want to live in that area, there is no apparent obstacle to him moving away from the village and re-establishing himself in a bigger city in China, where the standard of living may be higher and opportunities greater. Moreover, Mr SHI is young, physically healthy, without any cultural and language barriers, and his work experience would assist him to find employment. I accept that the absence of family and social support will pose a degree of hardship for him, but he would be able to keep in touch by electronic and other means.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Minister’s conclusion was expressed as follows:60.As explained above, in coming to a decision on Mr SHI’s request for revocation of the mandatory cancellation of his visa, I find Mr SHI made representations in accordance with the invitation, but I was not satisfied that Mr SHI passes the character test (as defined in s 501of the Act).61.In considering, in light of Mr SHI’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr SHI’s younger half-sister, ... I found that their best interests would be served by the revocation of the original decision.62.In addition, I have considered the length of time Mr SHI has made a positive contribution to the Australian community for over 10 years and the consequences of non-revocation of the original decision for his other family members, and the extent of impediments that Mr SHI would face if he were removed to China. 63.On the other hand, 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 crime committed by Mr SHI, which is of a sexual nature, and involved a vulnerable member of the community, that being a minor.64.Further, I find that the Australian community could be exposed to significant harm should Mr SHI reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr SHI.65.I am cognisant that where significant 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.66.I concluded that Mr SHI represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community and the expectations of the community, outweighed the best interests of his minor half-sister, as a primary consideration, and any other considerations as described above. These include his lengthy residence and ties, employment, and familial to Australia, and the hardship Mr SHI, his family and social networks will endure in the event the original decision is not revoked.67.Therefore, I am not satisfied that there is another reason why the decision to cancel Mr SHI’s Class BB Subclass 155 Five Year Resident Return visa should be revoked, as required by s501CA(4)(b)(ii) of the Act. Consequently, my power to revoke is not enlivened and Mr SHI’s visa remains cancelled.D. THE APPLICATION FOR JUDICIAL REVIEW AND THE PRIMARY JUDGE’S DECISIONApplication for judicial review The amended originating application advanced two grounds of review. Only the second ground is relevant to this appeal. It was in the following terms:2The respondent constructively failed to exercise his jurisdiction in the following respects:Particulars(a)The applicant, through the report of Dr Hoong of 9 September 2020 made a representation that deportation would cause him “immense psychological distress” and that “deportation would put him at considerable risk of suicide”.(b)These representation were noted by the respondent in [24] of his decision.(c)In determining the applicant’s extent of impediments if removed, the respondent stated “I accept that the absence of family and social support will pose a degree of hardship” but failed to engage with the “human consequences involved”: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225: 364 ALR 423 at [3](d) The respondent was required to engage in an active intellectual process with significant and clearly expressed relevant representations concerning the risk of suicide if the applicant is returned to China, and failed to do so. The primary judge’s decision

Ratio Decidendi

Legal Principle Established

The appellant’s submissions (as they did before the primary judge) involve the following essential propositions:(1)the suicide risk representation was clearly articulated; (2)that representation was one that identified potentially grave consequences for the appellant;(3)thus, the Minister was required to give to that representation consideration commensurate with its gravity;(4)the Reasons did not reflect consideration of the suicide risk representation to a degree commensurate with the gravity of that representation and merely acknowledged or noted it;(5)thus, it should be inferred that the Minister erred by failing to properly engage with the suicide risk representation; and(6)the error was material and as such was a jurisdictional error.F. CONSIDERATION At the core of the appellant’s submissions is the proposition that the gravity of the suicide risk representation required the Minister’s Reasons to display a level of consideration commensurate with that gravity. However, as the Full Court of this Court (Mortimer J, as her Honour then was; Colvin and O’Sullivan JJ) explained in ECE21v Minister for Home Affairs [2023] FCAFC 52 at [7], by reference to Plaintiff M1/2021, it is necessary to bear in mind “the important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand)”. A failure to advert to and understand the representations put by an applicant seeking the revocation of the cancellation of a visa may amount to a jurisdictional error. Whether there has been such a failure may fall to be determined as a matter of inference to be drawn from the reasons given by the Minister. However, in considering whether the Minister’s reasons give rise to an inference that the Minister has not adverted to and understood the representations made, the Court is not to consider the degree or the quality of the Minister’s evaluation of the representations. As the Full Court in ECE21 explained at [8], “approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister… This, it seems, was the aspect of Full Court decisions of this Court, like Omar, that the High Court disagreed with”. Thus, the appellant’s submissions invite an approach which is inconsistent with the approach to be taken as explained in Plaintiff M1/2021 and ECE21 and must be rejected. In the present case, the Minister was required to advert to and understand the representations made by the appellant, including the suicide risk representation: Plaintiff M1/20201 at 504 [9], 508 [24] and 512 [36]. That the Minister did so and comprehended that the appellant had made the suicide risk representation is clear, as the primary judge found at J[49], from Reasons [24] where the Minister referred not only to the fact of Dr Hoong’s report, but also to various parts of its contents and quoted directly from the part of the report that contained the suicide risk representation. For the reasons set out above, no inference is available arising from the contended quality or degree of the Minister’s evaluation of the suicide risk representation. It follows that the appellant has not discharged his heavy onus of establishing that the Minister failed to advert to and understand that representation.