WCJS v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

WCJS v Minister for Home Affairs [2021] FCA 1093

File number: NSD 111 of 2021
Judgment of: STEWART J
Date of judgment: 10 September 2021
Catchwords: MIGRATION – where the Minister personally exercised powers under s 501A(2) of the Migration Act 1958 (Cth) to set aside a decision of the Administrative Appeals Tribunal – where the Minister overlooked evidence and made multiple errors in respect of the visa applicant’s treatment of mental health issues – where the Minister overlooked evidence in forming a suspicion that the applicant was insincere in his mental health treatment – whether multiple factual errors in Minister’s decision amounted to legal unreasonableness – whether errors were material to outcome – decision quashed
Legislation:

Mental Health (Forensic Provisions) Act 1990 (NSW)

Migration Act 1958 (Cth) ss 476A, 501, 501A
Cases cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407

Anees v Minister for Immigration & Border Protection (No 2) [2020] FCAFC 28

Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321

Dalla v Minister for Immigration and Border Protection [2016] FCA 998; 70 AAR 141

DOY17 v Minister for Immigration and Border Protection [2019] FCA 1592

Duncan v Independent Commission Against Corruption [2016] NSWCA 143

Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; 202 FCR 417

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123

Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346

Minister for Border Protection v Makasa [2021] HCA 1; 386 ALR 200

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

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

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

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402

SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 130
Date of hearing: 18 May 2021
Counsel for the Applicant: O R Jones
Solicitor for the Applicant: Turner Coulson Immigration Lawyers
Counsel for the Respondent: G Johnson SC and N Swan
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

NSD 111 of 2021
BETWEEN:

WCJS

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

10 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The respondent’s decision dated 5 February 2020 be set aside.

2.The respondent pay the applicant’s costs.

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


REASONS FOR JUDGMENT

STEWART J:

INTRODUCTION AND BACKGROUND

  1. The applicant seeks judicial review under s 476A of the Migration Act 1958 (Cth) of a decision of the Minister for Home Affairs…

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Details
Case
[2021] FCA 1093
Decision Date

CaseChat Overview and Summary

The case of WCJS v Minister for Home Affairs involves a dispute concerning the cancellation of a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa. The applicant, WCJS, brought this application seeking to quash the Minister's decision to cancel his visa. The Federal Court was tasked with determining whether the Minister's decision was legally unreasonable and whether there were factual errors that amounted to legal unreasonableness.

The primary legal issues addressed by the court were whether the Minister's multiple factual errors in evaluating the applicant's mental health issues and the incident from 2014 amounted to legal unreasonableness, and if these errors were material to the outcome of the decision. The applicant argued that the Minister overlooked evidence and made multiple errors in his assessment, which rendered the decision legally unreasonable.

The court found that while the Minister did overlook some evidence and made several factual errors, these did not amount to legal unreasonableness. The court acknowledged the significance the Minister placed on the 2014 incident, but noted that it was within the Minister's purview to assess the risk of reoffending and to draw conclusions from the facts presented. However, the court held that the Minister's failure to properly consider the evidence regarding the applicant's mental health treatment and insincerity in addressing those issues did amount to legal unreasonableness.

The court concluded that the Minister's decision was legally unreasonable and set it aside. The respondent was ordered to pay the applicant's costs. The Federal Court’s decision underscores the importance of the Minister considering all relevant evidence and drawing appropriate conclusions to avoid legal unreasonableness in such cases.

Orders

Orders of the court

1. The respondent’s decision dated 5 February 2020 be set aside.

2. The respondent pay the applicant’s costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is thus apparent that the conduct in 2014 was of significance in the Minister’s reasons. He referred to it in support of his conclusion that there is an ongoing risk that the applicant would engage in criminal conduct in Australia and that he thus does not pass the character test and that the Australian community would be concerned about his risk of reoffending.The evidence The significance that the Minister placed on that conduct makes it necessary to identify the evidence before the Minister as to the nature of that conduct. In a statutory declaration in November 2016 the applicant explained the incident in question. It occurred on 18 November 2014. His partner was driving a car in which he was a passenger when someone in another car “started tailgating her”. The way it is told by the applicant, it was the driver of the other car who was the aggressor. The applicant swapped places with his partner and took over driving their car. There was further aggressive behaviour from the other driver. The applicant then pulled over, but the other driver also pulled over. The applicant got out of his car and confronted the other driver who was still seated in his car. The other driver grabbed the applicant’s hand and there followed a scuffle while the applicant tried to free himself. The applicant explains that he was charged with common assault, but the charge was dealt with under the Mental Health (Forensic Provisions) Act as explained. The applicant says that at the time of the offence his mental health was particularly bad. He was extremely depressed and had withdrawn to the point that he did not go out unless it was absolutely necessary. He was also dealing with the death of his uncle at that time. He says that he was so depressed that his partner had gone to fetch him from work because she was concerned about him, and the incident occurred when they were driving back after she had picked them up. The applicant’s partner also gave evidence by way of a statutory declaration dated November 2016 about the incident in question. Her description of the incident is consistent with the applicant’s description. She also tells of how it was the other driver who was the aggressor, including by throwing a bottle of water at their car and shouting abuse. She says that at no point did the applicant threaten or challenge the man in the other car. After they had pulled over and the other car pulled over behind them, she says the following occurred: [The applicant] got out of the car and walked over to the other man, who was still sitting in his car and making boxing fists aimed at [the applicant]. … I witnessed [the applicant] say something to the man and then point is finger at the other man. I then saw the other man grabbed his hand. At that point there was more shouting and [the applicant] reached into the car. There was a very brief struggle while, as it appeared to me, [the applicant] was trying to free his hand. I did not see either [the applicant] or the other man actually throw a punch. After a very brief period of arguing with the other man [the applicant] returned to our car.

Decision

Reasons for decision

Consequently, the applicant’s New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa was cancelled upon the Minister’s decision on 5 February 2020.THE MINISTER’S DECISION The Minister decided that the applicant did not pass the character test (on the grounds of s 501(6)(d)(i)), and that it was in the national interest to refuse his visa. The Minister’s statement of reasons cover a range of considerations. Relevantly for this appeal, the Minister considered that the applicant’s assault conviction in October 2010 (which was subsequently appealed with the result that no conviction was recorded), the contravention of an apprehended violence order in December 2011, a road rage incident in November 2014 and “some 21 or so entries” regarding the applicant recorded by New South Wales police in its Computerised Operational Policing System (COPS) report supported the Tribunal’s finding that there is “something of a tendency that the applicant has displayed in the past with regard to his reactions to situations against a background of perhaps some mental health problems, in particular, depression”. The Minister then concluded that the applicant was at risk of reoffending because the applicant had not undertaken any “significant treatment” of the mental health issues that have been the primary cause of his criminal offences. The Minister further noted that “the instances where he has undertaken treatment have been in the context of his visa application, giving little confidence in the sincerity of this commitment to addressing these issues.” Whilst the Minister accepted that the applicant’s current relationship was a significant stabilising influence – as were his personal social networks, employment, study and future ambitions – the Minister considered that the applicant’s unaddressed mental health issues, lack of insight or remorse into his behaviour, and lack of regard for the laws of Australia amounted to a “real risk” that he would engage in further criminal conduct. THE GROUNDS OF REVIEW In February 2021, the applicant brought the present application to quash the Minister’s decision. The applicant sought to rely on an amended application. There was no objection to the amendment by the Minister. I therefore granted leave to the applicant to rely upon the amended application. The applicant relies on four grounds of review in the amended originating application. Ground 1 contends that the Minister failed to give proper, genuine and realistic consideration to the evidence before him, and ground 2 contends that the Minister’s decision was legally unreasonable. Both grounds are particularised as follows:a) The Minister failed to identify the nature of the criminal conduct that the Applicant was supposedly at risk of committing.b) The Minister’s conclusion in relation to the Applicant’s supposed failure to take medication to address his mental illness lacked any proper basis.c) The Minister’s conclusion in relation to the Applicant’s supposed insincerity in treating his mental illness lacked any proper basis.d) The Minister’s reasons were drafted more than a year before the Minister made his decision, resulting in the Minister failing to consider and/or take into account events subsequent to the drafting of his reasons but prior to his decision.e) The Minister failed to adequately take into account the Applicant’s change in character since the date of his convictions.f) The Minister took into account the Applicant’s charge with common assault in 2014 contrary to the Applicant’s entitlement to the presumption of innocence.

Ratio Decidendi

Legal Principle Established

There was no formal record before the Minister as to how the charges were dealt with under the Mental Health (Forensic Provisions) Act. The evidence is that “the charges were dismissed”, “no conviction was recorded or punishment imposed” and “the charge was resolved … with no finding being made in relation to whether [the applicant] committed an offence at all.” The result is that other than the fact of the charge itself, from which one can infer that the complainant gave a statement to the effect that there was an assault, there is no evidence of any conduct amounting to an assault beyond the minor “scuffle” that the applicant and his partner attest to in their statutory declarations.Consideration The Minister never treated the 2014 incident as a conviction. The submissions about the presumption of innocence accordingly miss the mark. The Minister took the fact of the incident and Professor Woods’s report as evidence of the applicant having gotten into a situation of conflict because of his mental health issues. The Minister then placed significant reliance on this to discount factors relied on by the Tribunal to conclude that the applicant was at no risk of reoffending, and to reach the opposite conclusion. In particular, the Minister relied on the 2014 incident to discount the significance of the fact that the applicant’s last offence had been in April 2010, and that both his offences had been in the context of a volatile previous relationship whereas he had subsequently entered into a long-term, stable relationship. Thus, the minor incident more than five years before the Minister’s decision played a significant part in the Minister finding against the applicant. Although, at least on one view, it is a harsh assessment by the Minister that this incident shows that there is a risk of the applicant reoffending, I do not consider it to be so beyond reason as to amount to jurisdictional error. It was the Minister’s responsibility under the relevant provision to assess the risk of the applicant reoffending. In making that assessment the Minister had to act reasonably, logically and intelligibly, but it was for him to give weight to particular facts and draw conclusions from them. I do not consider him to have fallen into error in his approach to the 2014 incident. However, it is to be observed that the Minister gave the matter significance because of his assessment of the applicant’s mental state, i.e., because the applicant suffered a psychotic episode he got himself into a situation of conflict that might otherwise have been avoided. Thus, if the assessment of the applicant’s mental health had been that it improved thereafter, the significance of the incident would diminish.Resolution of review grounds 1 to 3 The applicant places significant reliance on SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986. That case (at [85]) stands for the proposition that a factual error by the Minister in matters informing his consideration of something which is a mandatory relevant consideration may result in jurisdictional error. The Minister had relied on the fact that the applicant in that case had entered Australia on a friend’s passport, when in truth he had entered on his own passport, to conclude that the applicant had engaged in other serious conduct which demonstrated a pattern of fraudulent conduct. On that basis, the Minister concluded that the applicant posed a risk to the Australian community and it was therefore in the national interest to deny him a visa.