Due to generality of appellant’s claim and absence of any supporting evidence, is the respondent Minister required to undertake quantitative or qualitative assessment of risk?

AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175 (3 November 2022)

Intro:-

This is an appeal from the Federal Court of Australia dismissing an application for judicial review of the Minister’s decision not to revoke the decision to cancel his visa.

Facts:-

The appellant was born in Samoa in 1990 and arrived in Australia in 1999. On 13 December 2012, he was convicted in the Supreme Court of New South Wales of murder committed in the course of a violent home invasion and is presently serving a lengthy term of imprisonment. On 19 October 2016, the appellant’s Class TY Subclass 444 Special Category (Temporary) Visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). By a decision dated 11 September 2019, the Minister was not satisfied for the purposes of s 501CA(4)(b)(ii) that there was “another reason” for revoking the original decision to cancel the appellant’s visa.

The appellant appeals from the decision made by a judge of this Court dismissing an application for judicial review of the Minister’s decision not to revoke the decision to cancel his visa: AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 130.

The appellant relies on one ground of appeal:

"The Federal Court failed to find that the Respondent’s decision is affected by jurisdictional error in that the Respondent failed to read, identify, understand and evaluate the relevant representations and failed to bring its mind to bear upon the facts stated in the representations and the arguments or opinions put forward, in respect of the Applicant’s claim that he would be unable to access effective protection if returned to Samoa. The Court also failed to find that this error was material."

Primary judgment

His Honour referred to the relevant authorities, before applying those to the issue before him. Given the focus of this appeal, it is useful to recite the impugned passages in full, in the context in which they appear:-

"In my view the way in which the Minister has dealt with the applicant’s claim that he was at risk of serious harm in Samoa because he had given evidence against his co-offenders reflects the generality of the claim made by the applicant. The applicant never advanced any specific claim that there was no “effective” witness protection or police protection available in Samoa. Instead, his claims were general statements to the effect that he would be killed because there was no family support available to him in Samoa and there would be no one there to take care of him. This is apparent from a review of the representations made by the applicant to the Minister which included the various statements previously set out.

The applicant did not provide any material to the Minister to support any representation to the effect that there would be either no, or no effective, witness or police protection available in Samoa on which he might rely if, as he feared, any of his co-offenders sought to kill him in Samoa. Nor did he provide the Minister with any evidence of any threats that he had received or any evidence that would substantiate his claim that he would suffer serious harm were he to be returned to Samoa or that the likelihood of him suffering such harm would be any greater there than it would be in Australia.

In relation to the evidence before the Minister relating to the witness protection available to the applicant in Australia, the evidence indicates (at its highest) that the applicant was being considered for witness protection in Australia upon his release, not that such protection had been granted, or that it would necessarily or was even likely to be granted. Nor was there any evidence as to the nature of the protection that would be afforded to the applicant or his family if he was granted witness protection upon his release from prison.

In the context of s 501CA decisions, this Court has held that it is incumbent on the applicant to put before the Minister any representations and material that he or she wishes the Minister to consider when deciding whether or not there was another reason why the original decision should be revoked. The Minister is, in turn, required to consider and take into account any such representations and evidence in considering whether to revoke the original decision: see Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14], Taualii v Minister for Home Affairs [2019] FCA 2013 at [96] and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic [2020] FCA 1434 at [6]- [9]. This accords with the approach taken by the High Court in Viane HC.

It is apparent from the Minister’s reasons that the Minister referred expressly to the applicant’s stated fear that he would be at risk of serious harm in Samoa. The Minister did not dismiss this fear, but found that the risk of harm would be reduced (which does not mean that it would be eliminated) by the availability of witness protection and police protection.

The applicant in his submissions argued that the Minister did not make any assessment of the extent of the risk that the applicant would be killed or would suffer some other harm if he were returned to Samoa and that this omission constituted jurisdictional error.

I do not accept the applicant’s submission that the Minister was obliged to quantify the extent of the risk. There was nothing that was placed before the Minister to indicate that the risk of the applicant being harmed was anything more than a possibility and the Minister approached his decision on that basis. There was no supporting material adduced by the applicant which the Minister was required to answer including, in particular, any material as to the existence of any credible threat posed to the applicant’s safety by any of the applicant’s co-offenders were he to be returned to Samoa or as to the effectiveness of the witness or police protection available there. Neither the letter from the Detective Sergeant nor the Departmental file note referred to any threat to the applicant’s safety whether in Australia or Samoa beyond indicating, in the case of the file note, that a change of name was being considered due to his co-operation with the police.

I also do not accept the applicant’s submission that he made representations to the Minister that there would be no “effective” or “comparable” witness or police protection available to him in Samoa. It is apparent that the applicant’s claims were expressed far more generally in terms of him not having anyone there to support or protect him. The Minister was entitled to approach the decision on that basis, including by relying on his personal knowledge or the knowledge of his Department, to find that witness protection and police protection were available in Samoa if required and that these would reduce the risk of the applicant suffering harm.

The applicant’s complaint is essentially directed to the generality of the Minister’s findings. Given the generality of the representations made in relation to the possible harm the applicant may face if he were returned to Samoa and, in particular, his claim that he would be killed because he had decided to become a witness, the Minister was not obliged to make any more specific or detailed findings than he did. In the circumstances, I am not persuaded that the Minister failed to adequately consider that claim or that he failed to engage in an active intellectual process in doing so. It follows that ground 2 fails."

The primary judge concluded that no error had been established, but, even if there had been, it could not have deprived the appellant of a realistic possibility of a different outcome

Issues:-

1) Did the Minister misunderstood or misconstrued the appellant’s claim that he fears for his safety if he returns to Samoa because he gave evidence against his co-offenders?

2) Did the Minister fail to engage with the claim?

Consideration:-

It is necessary to recall at the outset the nature of the appellant’s claim: he feared he would be killed if he returned to Samoa because he gave evidence in criminal proceedings in New South Wales against his co-offenders and that, in Australia, he had the protection of the police. The claim is limited to a subjective fear. The appellant did not claim that he would be “unable to access effective protection if returned to Samoa”. Nor did he claim that there was no form of witness protection available to him in Samoa. Moreover, those representations were not supported by any evidence which might have enabled the Minister to engage in any comparative analysis between Samoa and Australia concerning the risk of harm to the appellant or any analysis of the nature and extent of such risk. Nor was there any evidence of any threats of harm in Samoa, or who in Samoa would seek to harm him (the offending having occurred in Australia).

Although a claim containing a representation about revocation of a cancellation decision may enliven a duty to consider the content of it, the degree of engagement with that claim will necessarily vary depending on factors such as the length of the claim, the clarity with which the claim is expressed and whether any evidence in support of the claim has been proffered by the formal visa holder.

It suffices to refer to the recent statements by the plurality in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [24]- [25]:

"Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them."

Similarly, it was recently observed in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 AJLR 13 (Viane):-

"It finally remains to be observed, and emphasised, that an applicant's prospects of persuading the Minister to revoke a
cancellation decision will doubtless be all the greater if the applicant adduces evidence, or other supporting material, to make good the claims that she or he makes. The production of such evidence or material in the applicant's representations would engage the need for the Minister to consider such evidence and, if necessary, to answer it with further or different evidence, or other material, if the claims are to be rejected."

At [13]-[15], the Court summarised the operation of s 501CA in light of its statutory context:-

"The relevant statutory scheme mandated by s 501CA of the Act comprises: the giving of relevant information to a person whose visa has been cancelled; inviting that person to make representations about why that cancellation decision should be revoked; the receipt of representations by the Minister made in accordance with that invitation; and, thereafter, the formation of a state of satisfaction, or not, by the Minister that the cancellation decision should be revoked. That scheme necessarily requires the Minister to consider and understand the representations received. What is “another reason” is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case. It follows that there may be few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii). Thus, the Minister is not obliged to take account of any non-refoulement obligations, as expressed in the Act or otherwise, when determining whether there is another reason to revoke a cancellation decision where the materials “do not include, or the circumstances do not suggest, a non-refoulement claim”. The power must otherwise be exercised reasonably and in good faith.

No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant. Based upon the representations made by an applicant, the cancellation decision and the “relevant information” given to the applicant pursuant to s 501CA(3)(a), the Minister must, when the Minister is not satisfied that an applicant passes the character test, then determine relevantly whether to be satisfied that there is “another reason” why the cancellation decision should be revoked. Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant's past offending.

If the representations made lack any substance altogether, then this of itself might justify a decision not to be satisfied that “another reason” exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made. Moreover, some of the topics that might be traversed might not lend themselves to be addressed by way of evidence. They may involve matters of judgment, especially when weighing factors for and against revocation. The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation."

Against that background, once the nature of the claim is appreciated, it is readily apparent that the primary judge’s description of the generality of the claim, and what flows therefrom, is unexceptionable. With that understanding, it is plain that the primary judge did not misconstrue or misconceive the appellant’s claim. We do not accept the submission that the primary judge misunderstood the claim and limited it to the appellant having no family support. The statement, read with the surrounding paragraphs, encompasses the appellant’s claim in respect of the police looking after him. Those paragraphs, and what follows, is an accurate recitation of the claim and the state of the evidence before the Minister. In that context, it is appropriate to mention concerning the scant nature of the evidence as to his position in respect of protection in Australia.

Despite the appellant accepting during the hearing the correctness of the propositions as to the nature of the claim, described above, this ground, as advanced, suggests otherwise. For example, the appellant’s repeated submission that the Minister was required to go further by quantifying the level of risk to the appellant in Samoa, and the degree to which that risk was reduced by the availability of police protection, fails to grapple with the nature of the claim, and the absence of evidence on which it was based. Although the appellant submitted that he was not saying that the Minister was obliged to quantify the extent of the risk, he contended that a meaningful qualitative assessment was necessary. However, the appellant never addressed how, in the absence of evidence, the assessment could be made.

Given the nature of the claim, the appellant has not identified any error in the reasoning of the primary judge. As his Honour recognised, the Minister referred expressly to the appellant’s stated fear that he would be at risk of serious harm in Samoa, but found that the risk of harm would be reduced (which does not mean that it would be eliminated) by the availability of witness protection and police protection. As the primary judge correctly concludes, in the circumstances of this case, the Minister was not obliged to quantify the extent of the risk, as contended for by the appellant. Indeed, given the paucity of the material, nor could he have done so. There was nothing in the evidence that the appellant placed before the Minister that indicated that the risk of him being harmed in Samoa “was anything more than a possibility” and, moreover, there was “no supporting material ... which the Minister was required to answer” pertaining to “the existence of any credible threat posed to the [appellant]’s safety” or “the effectiveness of the witness or police protection available [in Samoa]”: Given the generality of the claim, the primary judge concluded that the Minister was not obliged to make more detailed findings.

The appellant’s submission as to the Minister’s reasons  cannot be sustained on a proper reading of that paragraph in the context in which it appears. The Minister did not misconstrue or minimise the claim. Rather, read in light of [33] (and earlier passages) where the claims are expressly stated, the harm referred to  plainly is a reference to the fears of being killed. Moreover, the final sentence is a finding that the risk is reduced if he participates in witness protection and would have access to the police, in the event he requires it. That reflects the absence of evidence supporting any basis for the fear if he were in Samoa. As discussed above, given the generality of the claim and the absence of evidence, it has not been established that any such quantification was required, or indeed could be made. The consideration being made is not whether the appellant’s subjective fear is assuaged, but the issue of actual risk. The appellant’s submission repeatedly elided the two concepts.

We also note for completeness that, as the primary judge correctly observed at [43], in the context of s 501CA decisions, it is incumbent on the applicant to put before the Minister any representations and material that he or she wishes the Minister to consider when deciding whether or not there was another reason why the original decision should be revoked: see, for example, Pennie v Minister for Home Affairs [2019] FCAFC 129; Viane.

The primary judge delayed the resolution of this matter until the High Court handed down its decision in Viane, at which time the appellant’s solicitor indicated that he required time to consider whether to bring an application to re-open his case to adduce further evidence. Procedural orders were subsequently made to facilitate the making of any such application and for the provision of further written submissions. The appellant did not seek to adduce any further evidence.

Conclusion:-

The appellant has not established the ground of appeal. Accordingly, the appeal should be dismissed with costs.