Toki v Minister for Home Affairs

Case [2022] FCA 44

FEDERAL COURT OF AUSTRALIA

Toki v Minister for Home Affairs [2022] FCA 44

File number: NSD 1244 of 2020
Judgment of: BURLEY J
Date of judgment: 3 February 2022
Catchwords: MIGRATION – application for review of decision of the Minister pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – where applicant found not guilty of certain offences by reason of mental health – where applicant detained in a forensic hospital – where leave sought to adduce evidence not before the Minister – whether Minister failed to consider whether New Zealand had comparable medical care to meet the applicant’s needs – whether cancellation of applicant’s visa likely to interfere with his treatment and prospect of release – whether Minister failed to consider evidence of family support – whether decision was unreasonable – application dismissed
Legislation:

Migration Act1958 (Cth) ss 5, 13, 14, 15, 189(1), 196, 254, 476A(1)(c), 501, 501(3A), 501CA, 501CA(4)

Federal Court Rules 2011 (Cth) r 4.12

Mental Health Act 2007 (NSW) ss 51(1), 53
Cases cited:

Anaki v Minister for Immigration and Border Protection [2018] FCA 77

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420

Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333

McCafferty v Minister for Immigration & Ethnic Affairs [1995] FCA 1099; 61 FCR 275

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Border Protection v Singh [2016] FCA 575

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590

Navoto v Minister for Home Affairs [2019] FCAFC 135

R v Toki, Martin [2009] NSWDC 186

Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296

Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144; 278 FCR 386
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 73
Date of hearing: 6 October 2021
Counsel for the Applicant: Mr A Krohn
Counsel for the Respondent: Ms R Francois
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

NSD 1244 of 2020
BETWEEN:

MARTIN TOKI

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

BURLEY J

DATE OF ORDER:

3 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The applicant be granted leave to amend the grounds of the originating application for review of a migration decision to include paragraphs 1(a), 1(b), 1(c)(i)-(vi) and (viii), 2(a) and 2(b) in…

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AGLC
Toki v Minister for Home Affairs [2022] FCA 44
Case
[2022] FCA 44
Decision Date

CaseChat Overview and Summary

The applicant, Mr Toki, sought judicial review of a decision by the Minister for Home Affairs to cancel his visa on character grounds. The case was heard in the Federal Court of Australia. The key issues for the court to decide were whether the Minister failed to consider whether New Zealand had comparable medical care to meet Mr Toki's needs, whether the cancellation of Mr Toki's visa would interfere with his treatment and prospect of release, and whether the Minister failed to consider evidence of family support.

The court held that the Minister's decision was not affected by jurisdictional error. The court found that the Minister had considered the relevant submissions made by Mr Toki, including his submissions regarding his mental health and the impact of his visa cancellation on his treatment. The court also found that the Minister had appropriately considered the availability of mental health services in New Zealand and the Cook Islands.

The court further held that the Minister's decision was not affected by any failure to consider evidence of family support. The court found that there was no evidence before the Minister to support Mr Toki's submissions regarding the availability of family support in Australia.

Accordingly, the court dismissed Mr Toki's application for judicial review of the Minister's decision. The court granted Mr Toki leave to amend his originating application but declined leave to adduce additional evidence. The court also ordered that Mr Toki pay the respondent's costs.

Orders

Orders of the court

1. The applicant be granted leave to amend the grounds of the originating application for review of a migration decision to include paragraphs 1(a), 1(b), 1(c)(i)-(vi) and (viii), 2(a) and 2(b) in the form provided to the Court on 6 October 2021.

2. The application be dismissed.

3. The applicant pay the respondent’s costs.

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

Background

Background to the litigation

After I refused leave to rely on the affidavit of Dr Pulley, Mr Toki indicated that he no longer pressed those grounds of his proposed amended originating application that relied on this evidence, being proposed particular 1(c)(vii) and proposed ground 2(c). 2. BACKGROUND2.1 The decision of the Minister The Minister noted that by reason of his criminal convictions, Mr Toki does not pass the character test within s 501 of the Act. The Minister was satisfied that Mr Toki had made representations in accordance with s 501CA(4)(a) of the Act and summarised those submissions as follows at [12]:ŸHis removal from Australia would result in his isolation from all his family and friends, as well as all support services currently in place for his mental health.ŸIf he returned to the Cook Islands there would be inadequate mental health services available to him there.ŸAt the time of his offences he was ‘not managing symptoms of major mental illness effectively, or having any interventions for personality disorder’.ŸHe is currently engaging with rehabilitation programs at the Forensic Hospital.ŸHe is at low risk of reoffending due to significant progress in his ‘own insight into mental illness, awareness of early warning signs and triggers, and transparency regarding previous environments that lead to offending behaviour’.ŸHe is regarded as polite and considerate by several corrections staff who have submitted letters of support.ŸHe is likely to remain in the Forensic Hospital until such time that the Mental Health Review Tribunal is satisfied that his level of risk can be managed in a medium security unit.ŸAs a forensic patient, upon release to the community he will be subject to a community treatment order with restrictions on matters such as conduct, medication, relationships and engagement with mental health. The Minister then considered the extent of impediments that Mr Toki will face if removed from Australia to his home country of the Cook Islands or New Zealand in establishing himself and maintaining basic living standards. The Minister found:[14]I have taken into account Mr TOKI’s submission that he would be isolated from all his family in Australia and that, as he has no family or friends living in the Cook Islands or New Zealand, he would be isolated from his current mental health supports. He also submits that mental health services in the Cook Islands are very basic and limited, which could lead to a deterioration in his mental health conditions.[15] I accept that Mr TOKI’s removal from Australia will leave him without familial support, which may in turn result in some difficulty in establishing himself in a country he has not lived in since his childhood, I do not consider he will encounter any significant cultural or linguistic issues, given he spent his childhood in the Cook Islands or New Zealand, and English is an official language in both countries.[16] I note that there is no evidence other than Mr TOKI’s own statements that he has family support in Australia, as no family members have provided submissions for the current consideration. Therefore I am not persuaded that he would be substantially worse off in the Cook Islands than Australia, in this respect.[17] I accept that, in respect of any needs for psychological treatment that he may have, and in light of a 2015 report by the World Health Organisation, which indicates that mental health treatment resources in the Cook Islands are very basic and limited, it is very unlikely that they would compare in standard to what Mr TOKI would receive in Australia, but I find that he will have access to mental health services commensurate with other citizens in similar circumstances. I acknowledge that these might not be sufficient to manage Mr TOKI’s particular mental health issues, which are very serious.[18] I note that Mr TOKI’s own statements indicate that he will not be released from criminal custody until the NSW Mental Health Review Board [sic, Tribunal] is satisfied that it is safe to do so. Accordingly it would seem that he would then present a lower risk of mental deterioration, though I acknowledge that this would be partly conditional on intensive follow up monitoring that is normal in such cases as his, in Australia.[19]Finally, I consider that as a New Zealand citizen, Mr TOKI would be able to live in that country, where he would have access to mental and other health services comparable with those available in Australia and would therefore have appropriate support in managing his mental health. (Emphasis added.)

Evidence

Evidence Before The Court

For the reasons set out below, I grant leave to Mr Toki to amend his originating application, decline leave to adduce additional evidence and dismiss his application as amended. 1.2 The application to adduce fresh evidence At the outset of the hearing Mr Toki sought leave to adduce fresh evidence in the form of an affidavit from Dr Rafe Pulley, consultant forensic psychiatrist. No affidavit from Dr Pulley was before the Minister at the time of his decision. The affidavit refers, inter alia, to the effect of the cancellation of Mr Toki’s visa while he remains in Australia, impediments to the likely progression of his mental health if the cancellation is not reversed, the rate of recidivism of people who are released from the Justice Health and Forensic Mental Health Network, and the availability of forensic medical assistance in New Zealand. Mr Toki relied on the reasoning of the Full Court in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [48] (Rares and Robertson JJ) and at [68]-[69] (Flick J) in support of the proposition that, if a visa holder raises a submission the facts of which are not within his own control but are in the control of the Minister, then it may be appropriate to admit evidence, relying in particular on Flick J at [69]. The Minister opposed the grant of leave on the bases first, that the proposed amended pleading does not raise any ground going to a failure on the part of the Minister to make any inquiry in relation to an obvious fact that is easily ascertainable, as contemplated by Maioha. Secondly, that there were real questions going to the admissibility and relevance of the further material. Thirdly, because the evidence could have been obtained and supplied prior to the decision of the Minister, and finally because the decision in Maioha was not in any event applicable. In this regard the Minister cited Minister for Immigration and Border Protection v Singh[2016] FCA 575 at [58] (Edelman J). At the hearing I refused Mr Toki leave to rely on the further evidence, substantially for the reasons advanced by the Minister. I was not satisfied that the limited exception contemplated in Maioha applied and considered that the reasons summarised in Singh at [58] demonstrated that such leave should be refused. After I refused leave to rely on the affidavit of Dr Pulley, Mr Toki indicated that he no longer pressed those grounds of his proposed amended originating application that relied on this evidence, being proposed particular 1(c)(vii) and proposed ground 2(c). 2. BACKGROUND2.1 The decision of the Minister The Minister noted that by reason of his criminal convictions, Mr Toki does not pass the character test within s 501 of the Act. The Minister was satisfied that Mr Toki had made representations in accordance with s 501CA(4)(a) of the Act and summarised those submissions as follows at [12]:ŸHis removal from Australia would result in his isolation from all his family and friends, as well as all support services currently in place for his mental health.ŸIf he returned to the Cook Islands there would be inadequate mental health services available to him there.ŸAt the time of his offences he was ‘not managing symptoms of major mental illness effectively, or having any interventions for personality disorder’.ŸHe is currently engaging with rehabilitation programs at the Forensic Hospital.ŸHe is at low risk of reoffending due to significant progress in his ‘own insight into mental illness, awareness of early warning signs and triggers, and transparency regarding previous environments that lead to offending behaviour’.ŸHe is regarded as polite and considerate by several corrections staff who have submitted letters of support.ŸHe is likely to remain in the Forensic Hospital until such time that the Mental Health Review Tribunal is satisfied that his level of risk can be managed in a medium security unit.ŸAs a forensic patient, upon release to the community he will be subject to a community treatment order with restrictions on matters such as conduct, medication, relationships and engagement with mental health.

Decision

Reasons for decision

Mr Toki made representations to the Minister, and on 21 October 2020 the Minister determined that Mr Toki did not pass the character test and that there was not another reason why the original decision should be revoked. Because the decision was made personally by the Minister, it is not amenable to a merits review pursuant to s 476A(1)(c) of the Act. Mr Toki now seeks judicial review of the decision of the Minister on the basis that it is affected by jurisdictional error. He was represented pro bono by Anthony Krohn of counsel pursuant to a certificate issued under r 4.12 of the Federal Court Rules 2011 (Cth), who provided written submissions in advance of the hearing. The Minister was represented by Rachel Francois of counsel, who also filed written submissions. In this application Mr Toki:(1)Seeks leave to amend his originating application; (2)Seeks leave to adduce additional evidence in the form of an affidavit of Dr Rafe Pulley, consultant forensic psychiatrist; and(3)Contends by the content of his amended originating application that the Minister’s decision reflects jurisdictional error. The Minister opposes each of these. For the reasons set out below, I grant leave to Mr Toki to amend his originating application, decline leave to adduce additional evidence and dismiss his application as amended. 1.2 The application to adduce fresh evidence At the outset of the hearing Mr Toki sought leave to adduce fresh evidence in the form of an affidavit from Dr Rafe Pulley, consultant forensic psychiatrist. No affidavit from Dr Pulley was before the Minister at the time of his decision. The affidavit refers, inter alia, to the effect of the cancellation of Mr Toki’s visa while he remains in Australia, impediments to the likely progression of his mental health if the cancellation is not reversed, the rate of recidivism of people who are released from the Justice Health and Forensic Mental Health Network, and the availability of forensic medical assistance in New Zealand. Mr Toki relied on the reasoning of the Full Court in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [48] (Rares and Robertson JJ) and at [68]-[69] (Flick J) in support of the proposition that, if a visa holder raises a submission the facts of which are not within his own control but are in the control of the Minister, then it may be appropriate to admit evidence, relying in particular on Flick J at [69]. The Minister opposed the grant of leave on the bases first, that the proposed amended pleading does not raise any ground going to a failure on the part of the Minister to make any inquiry in relation to an obvious fact that is easily ascertainable, as contemplated by Maioha. Secondly, that there were real questions going to the admissibility and relevance of the further material. Thirdly, because the evidence could have been obtained and supplied prior to the decision of the Minister, and finally because the decision in Maioha was not in any event applicable. In this regard the Minister cited Minister for Immigration and Border Protection v Singh[2016] FCA 575 at [58] (Edelman J).

Ratio Decidendi

Legal Principle Established

Accordingly, for the reasons set out above, ground 1(c) has not been established. 3.2 Ground 2 – failure to consider relevant considerations In ground 2 of his amended originating application, Mr Toki alleges that the Minister fell into jurisdictional error for failing to consider three relevant considerations. In ground 2(a) Mr Toki contends that the Minister ignored key information about the nature of his forensic mental health status and the likely trajectory of his treatment. He contends that the Minister did not take into account that his rehabilitation and treatment as a Forensic Mental Health Patient without a visa would be paused once he transfers from the Forensic Hospital to a Medium Secure Forensic Psychiatry facility in that he would not be permitted to have any access to the community, although this is a major part of the treatment and progress to rehabilitation in the Medium Secure Forensic Psychiatry facility. He contends that if the cancellation of his visa is not revoked, then as an unlawful non-citizen he would not be permitted access to the community and so would not be able to complete his rehabilitation and accordingly would be detained longer than clinically indicated in a Medium Secure Forensic Psychiatry facility. The consequence would be that he may be detained for longer, and potentially indefinitely because he could not meet the goals of his mental health treatment. He submits that the Minister did not take this into account. The Minister submits that this ground is factually misconceived because there was no evidence before the Minister to support the proposition that Mr Toki would not be able to complete his rehabilitation in a Medium Secure Forensic Psychiatry facility if his visa was cancelled, and no such representation was made to the Minister. In Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 (Burley, Colvin and Jackson JJ), the Full Court observed at [27]:Considered within the statutory context, the Minister’s statutory power conferred by s 501CA(4) has been determined to have the following characteristics:(1)If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is ‘another reason’ why the original decision should be revoked.(2)The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.(3)The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.(4)However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.(5)Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.(6)If the state of satisfaction is formed that there is ‘another reason’ why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.As to these matters, see: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [66]-[68], [73]-[74] (Colvin J, Reeves J agreeing); Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [41]-[45] (Rares and Robertson JJ), [62]-[63] (Flick J); Navoto v Minister for Home Affairs [2019] FCAFC 135 at [85]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34]-[41] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 at [31]-[32] (Flick, Griffiths and Moshinsky JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 at [15] (McKerracher, Kerr and Wigney JJ); and Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [3]-[4] (Katzmann J), [100] (O'Bryan J), [51] (Derrington J in dissent).