Vural v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Vural v Minister for Home Affairs [2020] FCA 667

Review of: Vural and Minister for Home Affairs (Migration) [2019] AATA 579
File number(s): VID 430 of 2019
Judge(s): ANDERSON J
Date of judgment: 19 May 2020
Catchwords:

MIGRATION – application for judicial review of decision by Administrative Appeals Tribunal under s 501CA(4) of the Migration Act 1958 (Cth) –Tribunal decided not to revoke cancellation of applicant’s visa – whether Tribunal misconstrued or misapplied para 14.5(1) of Direction No. 79 in relation to the extent of impediments that the applicant would face if removed to Turkey – whether the Tribunal overlooked country information about employment opportunities and access to medication and drug treatment in Turkey – whether the Tribunal erroneously found the applicant had failed to heed two warnings given to him by the Department of Immigration and Citizenship regarding the potential consequences of further offending

Held: application for judicial review dismissed – no jurisdictional error committed by the Tribunal – Tribunal did not misconstrue or misapply para 14.5(1) of Direction No. 79 – Tribunal did not overlook country information – Tribunal statement regarding the applicant’s failure to heed the Department’s warnings was not erroneous, or alternatively was immaterial to Tribunal’s decision
Legislation: Migration Act 1958 (Cth) ss 499(1), 499(2A), 501(3A), 501(6)(a), 501(7)(c), 501CA, 501CA(4)
Cases cited:

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

CHJK v Minister for Home Affairs [2019] FCA 1330

Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 230

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421

Navoto v Minister for Home Affairs [2019] FCAFC 135

Paszkiewicz v Minister for Home Affairs [2019] FCAFC 198

RZMW v Minister for Home Affairs [2019] FCA 1761

Vural and Minister for Home Affairs (Migration) [2019] AATA 579
Date of hearing: 13 February 2020
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 63
Counsel for the Applicant: Mr G M Hughan
Solicitor for the Applicant: Kerdo Legal
Counsel for the First Respondent: Mr W Mosley
Solicitor for the First Respondent: Clayton Utz

ORDERS

VID 430 of 2019
BETWEEN:

ERDAL VURAL

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

ANDERSON J

DATE OF ORDER:

19 MAY 2020

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application.

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


REASONS FOR JUDGMENT

ANDERSON J:

Introduction

  1. The applicant, a citizen of Turkey, seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) under s 501CA(4) of the Migration Act 1958 (Cth) (Act).  The Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (Minister) not to revoke the cancellation of the applicant’s Class BB Subclass 155…

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Details
Case
[2020] FCA 667
Decision Date

CaseChat Overview and Summary

The applicant in this case, born in Turkey in 1967 and having a history of criminal activity in Australia, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the Minister for Home Affairs' decision not to revoke the cancellation of his visa. The applicant argued that the Tribunal had misapplied relevant legislation and overlooked certain country information regarding his potential impediments if removed to Turkey. The Federal Court was tasked with determining whether the Tribunal had committed a jurisdictional error in its assessment of the applicant's case.

The court considered whether the Tribunal had misconstrued or misapplied Direction No. 79 in relation to the extent of impediments the applicant would face if removed to Turkey, and whether the Tribunal overlooked relevant country information about employment opportunities and access to medication and drug treatment in Turkey. The court also assessed whether the Tribunal's finding that the applicant had failed to heed warnings from the Department of Immigration and Citizenship was erroneous. The court found that the Tribunal had not committed any jurisdictional errors. The Tribunal had correctly applied Direction No. 79 and had not overlooked the country information provided. The Tribunal's statement regarding the applicant’s failure to heed the warnings was not erroneous, or alternatively, was immaterial to the Tribunal's decision.

The court concluded that the Tribunal did not commit jurisdictional errors as contended by the applicant. The application for judicial review was dismissed, and the applicant was ordered to pay the Minister's costs of and incidental to the application. This decision underscores the importance of the Tribunal properly applying relevant directions and considering all relevant information when assessing the impediments a non-citizen may face if removed from Australia.

Orders

Orders of the court

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application.

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

Background

Background to the litigation

For the reasons expressed below, the Tribunal did not commit jurisdictional errors as contended by the applicant. The applicant’s judicial review application is accordingly dismissed.Background The applicant was born in Turkey in 1967. He first arrived in Australia, with his parents and other siblings, in 1970. The applicant has a prolonged criminal history. His offending between 1982 and 2018 includes assault, assaulting police, intentionally causing injury, firearms and weapons offences, dishonesty offences, possession of drugs of dependence and trafficking drugs of dependence. The applicant has undertaken numerous terms of imprisonment in relation to these offences. The key prison terms are detailed below. On 21 April 2008, the applicant was given a formal warning by the Department to the effect that further criminal convictions could result in the cancellation of his visa. The Department’s letter relevantly expressed the following:It has come to this department’s attention that you have a criminal record. As you have a criminal record, I would like to advise you of the operation of section 501 of the Migration Act 1958 (the Act).…The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa. I note that the consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia, and, in certain cases, bars on re-entering Australia. On 15 February 2010, the applicant was convicted in the County Court of Victoria in relation to a series of offences, including possessing and trafficking drugs of dependence. The applicant received a total effective term of imprisonment of 2 years and 9 months. On 6 July 2010, the applicant was again notified by the Department that his visa may be liable to cancellation on character grounds. On 16 February 2011, a delegate of the Minister for Immigration and Citizenship determined not to cancel the applicant’s visa on character grounds. However, the Department’s written notice to the applicant relevantly expressed the following:… the delegate decided that you are to be given the following formal warning.Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered. The applicant acknowledged receipt of the Department’s written notice by way of a signed letter dated 23 February 2011. The applicant’s letter acknowledged that he understood that he could again be considered for refusal or cancellation of any visa granted to him if further information of relevance came to the attention of the Department. On 6 June 2018, the applicant was convicted in the Magistrates’ Court of Victoria of his most recent offences, including contravening a community corrections orders, driving whilst disqualified, attempted theft, theft and committing an indictable offence whilst on bail. The applicant was sentenced in relation to these offences to a total effective term of imprisonment of four months.

Evidence

Evidence Before The Court

As can be seen, this ground of review, like the first ground, concerns the Tribunal’s consideration of the extent of impediments that the applicant would face if removed to Turkey.Evidence allegedly overlooked The applicant submits that the Tribunal overlooked certain evidence about Turkey contained in a report dated 9 October 2018 entitled “DFAT Country Information Report Turkey” (DFAT Report), which was provided by the Minister to the Tribunal. The DFAT Report is 54 pages long, and contains wide-ranging information about Turkey, including its history, political framework and security situation. The applicant identifies various aspects of the DFAT Report that he alleges were overlooked by the Tribunal. The relevant aspects of the report are best identified by reference to the applicant’s written submissions:40. The Applicant claimed that he would be subject to Turkey’s conscription laws. In response the Minister provided the Tribunal with a DFAT Country Information Report for Turkey, dated 9 October 2018 (“DFAT Report”).41. The DFAT Report also included information about employment and the Turkish health system.42. Unemployment in Turkey is high and has risen steadily since 2012. It was anticipated to continue above 10% through to the end of 2018. The employment gap between young males and other groups, including older workers (the group to which the Applicant would belong if removed to Turkey) is the highest in the OECD.43. Access to medication is also covered by the DFAT Report, e.g.:While patients are no longer obliged to make contributory payments when visiting primary health care providers, they are obliged to make flat rate out-of-pocket payments when receiving medications and outpatient services in public hospitals. These payments inhibit access to health care by the poor.44. The DFAT Report also considered drug use and treatment:There is little data available on the prevalence of illicit drug use in Turkey. A general population survey conducted in 2011 found that the use of illicit substances among the general population appeared to be rare, with cannabis the most common drug used by adults aged 15 to 64 years. Nevertheless, widespread popular sentiment in Turkey, shared by law enforcement agencies, believes illicit drug use is reaching serious levels. Critics of the government’s approach towards illicit drug use have noted that authorities have focused on drug seizures and prosecutions of small-scale drug peddlers and users rather than harm reduction, and that drug policies are not effective, comprehensive or integrated. Most drug related treatment in Turkey takes place in outpatient settings. 79 drug rehabilitation centres are located in 49 of Turkey’s 81 provinces. In June 2017, authorities announced plans to establish 12 ‘rehabilitation and social adaptation’ villages in Istanbul, Izmir, Ankara, and Adana, to reintegrate recovering drug addicts into society. (Citations omitted.)Submissions The applicant contends, in summary, that an inference should be drawn that the Tribunal overlooked these matters from the Tribunal’s failure to mention any of these aspects of the DFAT Report in its reasoning, its conclusions on the extent of impediments, and its comments about the “scant information” before it. The applicant accepts that whilst this evidence is not extensive, it was directed to the issues that the Tribunal was required to consider. The applicant submits that the Tribunal’s failure to have regard to this evidence amounts to jurisdictional error.

Decision

Reasons for decision

On 3 January 2019, the Minister’s delegate decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa. For reference, s 501CA relevantly provides the following:Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person…(3)As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way that the Minister considers appropriate in the circumstances:(i) a written notice that sets out the original decision; and(ii) particulars of the relevant information; and(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.(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:(i) that the person passes the character test (as defined by section 501); or(ii) that there is another reason why the original decision should be revoked. (5) If the Minister revokes the original decision, the original decision is taken not to have been made.…Tribunal’s decision On 8 January 2019, the applicant sought review by the Tribunal of the delegate’s decision not to revoke the visa cancellation. The applicant did not have legal representation in the Tribunal. On 18 and 19 March 2019, the Tribunal conducted a hearing of the applicant’s review application. The applicant gave evidence and was cross-examined. The applicant’s father (who was assisted by an interpreter), sister and three adult children also gave evidence. The Minister provided a Statement of Facts, Issues and Contentions (Minister’s Statement) and tendered a volume of documents, including a report dated 9 October 2018 entitled “DFAT Country Information Report Turkey” and a document entitled “Republic of Turkey Social Security Institution, Social Security System 2016”. On 29 March 2019, the Tribunal delivered its decision and reasons for decision: Vural and Minister for Home Affairs (Migration) [2019] AATA 579 (AAT Reasons). The Tribunal affirmed the delegate’s decision not to revoke the mandatory cancellation of the applicant’s visa. The Tribunal acknowledged that s 499(2A) of the Act required the Tribunal to comply with relevant ministerial directions in relation to its decision, which, in this case, was “Direction No. 79 - Migration Act 1958 - Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation” (Direction No. 79). As discussed further below, Direction No. 79 expressly requires the Tribunal to consider particular “primary considerations” and “other considerations” in exercising its discretion under s 501CA(4) of the Act.

Ratio Decidendi

Legal Principle Established

As discussed below, the applicant challenges particular aspects of the Tribunal’s assessment of the extent of impediments to the applicant if he was removed to his home country, Turkey. For reference, the Tribunal’s consideration in this regard in the AAT Reasons was as follows:CONSIDERATION…Other considerations…Extent of impediments if removed (paragraph 14.5)[84] The Direction requires the Tribunal to take into account the extent of impediments a person may face if repatriated, taking into account Mr Vural’s age and health, any substantial language or cultural barriers and any social, medical and/or economic support available to him in Turkey.[85] Mr Vural submitted that he suffered from depression and anxiety, and high blood pressure, and took medication for each of these conditions. The Respondent submitted (Exhibit R3) that Mr Vural would have access to the social security system administered by the Turkish Government’s Social Security Institution which includes universal health insurance. The Tribunal notes that this document states “The system does not include the entire population and [does] not have adequate safeguards against poverty.”[86] However, the Direction requires that a decision-maker must consider the extent of impediments that a non-citizen may face in settling and maintaining basic living standards through the lens of what is available to the person in the context of what is generally available to other citizens of that country. Thus, the requirement on a decision-maker in considering paragraph 14.5(1)(a) and (c) of the Direction is not to measure what the Australian welfare system may provide, or have provided to an individual, compared with what may be available in the welfare system of a country to which a non-citizen is repatriated. The correct approach is to assess what is generally available to citizens of the other country and would be available to a person, who is a citizen of that other country (who is broadly of the same age and with similar medical needs), if the person were repatriated.[87] The Tribunal has already discussed that Mr Vural speaks Turkish and finds that there would be no substantial language or cultural barriers if he were removed. The Tribunal also notes that Mr Vural provided evidence of his training as an auto-mechanic and that he had had periods of employment in that trade; as well as, for a time, operating his own car mechanic business. These skills would be readily transferable if Mr Vural was repatriated. The Tribunal also notes that Mr Vural provided evidence of certain other skills courses he had undertaken in prison, which is to his credit, and which also would enhance his employability. Mr Vural is, at the age of 51, not, as he submitted “elderly”, but the Tribunal acknowledges that as an older person re-entering the labour force, especially a person who has spent the greatest proportion of his life in another country, these factors would make job-seeking more difficult.[88] In terms of Mr Vural’s submissions regarding obligations for national service, the Tribunal notes that the DFAT Country Brief for Turkey (Exhibit R2) states (at 3.92):Article 72 of the Constitution states that national service is the right and duty of every Turk. Males are required to register at age 20 for service that commences once they turn 21. University students can defer their service until they have completed their studies. Males aged 20 to 41 are eligible for conscription and must undertake military service of six months for university graduates and 12 months for non-graduates.[89] Mr Vural in his own submissions conceded that, as he is over the age of 41, he would not be conscripted if repatriated. Exhibit R2 states (at the end of 3.94):In January 2016, the government passed a law allowing Turkish citizens over the age of 38 who had lived or worked outside Turkey for at least three consecutive years to obtain exemption from military service for TRY5680 (then AUZD1580)[90] The Tribunal concludes that, as Mr Vural is self-evidently aged over 38 and fulfils the other criterion of having lived or worked outside Turkey for more than three consecutive years, he would, on the basis of this information, be able to obtain exemption. Mr Vural states in his written submissions that he could not afford to pay the exemption fee. He provided evidence of mortgage payments for his residence. It was not clear whether he still has that residence but it would seem probable that he may be able to arrange his financial affairs to pay the requisite amount, if required. The Tribunal does not accept Mr Vural’s assertion that he would be ‘persecuted’ for not undertaking national service when he was not resident in Turkey for almost all of the period when he would otherwise have been eligible to be called up.[91] The Tribunal accepts that Mr Vural is on courses of medication for his medical conditions, as well as undergoing methadone treatment. On balance, the Tribunal finds, given Mr Vural’s various health conditions, and that there was scant information before the Tribunal about his access to this medication and to a methadone programme in Turkey, this consideration weighs in favour of restoring Mr Vural’s visa, but only very lightly so.Applicant’s submissions