FEDERAL COURT OF AUSTRALIA

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed with costs.

2.    The order of the Court made on 11 May 2018 be set aside and in lieu thereof order:

(a)    A writ of certiorari be issued directed to the Assistant Minister for Immigration and Border Protection quashing the decision made on 9 October 2017 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the decision made on 16 February under s 501(3A) of the Migration Act 1958 (Cth) to cancel the appellant’s absorbed person visa.

(b)    The matter be remitted to the Minister for the making of a decision under s 501CA(4) according to law.

(c)    The respondent pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an appeal from orders made by a judge of the Court dismissing an amended application for review of a migration decision made by the Assistant Minister for Immigration and Border Protection under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the decision made by a delegate of the Minister under s 501(3A) of the Act to cancel the appellant’s absorbed person visa.

2    The appeal should be allowed and the matter remitted to the respondent for determination in accordance with law. The reason that the decision has been affected by jurisdictional error was the making of an important finding of fact without any underlying material or evidence to support it. It may be that that error discloses such a failure to appreciate the gravity of the consequences of the decision that one can conclude that there has not been the required reality of consideration of Mr Hands’ circumstances by the Assistant Minister. It is unnecessary to go so far.

3    By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

Factual and legal background

4    Mr Hands was born in New Zealand in 1971. He came to Australia with his parents when he was an infant, as a three year old. (Mr Hands said on a number of occasions that he was one year old when he arrived.) He remains a citizen of New Zealand. When asked, he said that he had not applied for Australian citizenship because he thought his mother had when he was small. By operation of law he was granted an “absorbed person visa” on 1 September 1994. The circumstances that led to the decisions about his removal from Australia so long after arriving and that set out his personal circumstances come from the material that was before the Minister.

5    The immediately relevant events are that on 16 October 2016 Mr Hands pleaded guilty to charges in the New South Wales Local Court at Batemans Bay involving property damage, stalking, intimidation and assault, all being part of a domestic violence incident involving his partner and one of his step-grandchildren. He was sentenced to 12 months’ imprisonment, with a non-parole period of five months.

6    The sentence of 12 months engaged s 501 of the Migration Act. By s 501(3A), the Minister must cancel a visa if the Minister is satisfied, relevantly, that the person does not pass the “character test” because the person has a “substantial criminal record” as set out in s 501(7)(a), (b) or (c), that is, the person has been sentenced to death, or to a term of imprisonment for life, or to a term of imprisonment of 12 months or more; and if the person is still serving a full time custodial sentence.

7    On 16 February 2017, about two weeks before he would have been released on parole, Mr Hands received notification that his absorbed person visa had been cancelled under s 501(3A). He was advised of the consequences of removal, and that he could make representations to the Minister as to why the Minister should revoke the cancellation of the visa.

8    In August and September 2017, after Mr Hands had been released from prison and placed into immigration detention at Villawood, and later on Christmas Island, he was given a letter (twice) which said that the Department had information relevant to the question of revocation being the National Police Certificate (containing his criminal record), the sentencing remarks on 10 October 2016, and earlier sentencing remarks on 1 October 2015. He was invited to comment on this information.

9    Mr Hands’ representations were made in a number of ways. He wrote in handwriting on the form supplied to him the barest outline of his life: “a 14 year de facto relationship with plans to marry – Mariah Walker (aboriginal); five children to the above mentioned Mariah Walker aged 1 to 10; [the children were named]; Mariah will be supporting me with accommodation; I came to Australia in 1971 @ 1 year old. I have worked from the age of 15 years up until incarcerated.”

10    In answer to a question in a form asking for details of his relationship with his partner:

Please describe your relationship with your partner (e.g. how you met, how long you have been together) and describe the impact the cancellation of your visa would have, or has had, on your partner.

he wrote:

I met Maria down at the pub. I have been with her 14 years and I am planning to marry her once released. We have Maria’s 6 Grandchildren living with us.

Our relationship will fall apart if I am deported. I have no support in New Zealand as all my family are living in Australia.

11    He described the effect on his family (being Mariah and the step-grandchildren):

My family will be devastated.

12    He described his work as a labourer.

13    He summarised his position as follows:

I would like to stay in Australia as I have been here since I was 1 year old.

I have a wife + 6 Step. Grandchildren I need to look after.

I have employed in Bega in building & construction industry & I have supporting accommodation with my wife to be.

My mother + Brother + wife + Grandchildren will be devastated if I was deported as I am there [sic] support as much as they are mine.

14    The brevity and simplicity of Mr Hands’ expression of his fears should be placed in a fuller context that can be taken from an overall appreciation of all the material placed before the Department and the Assistant Minister – from Mr Hands, Ms Walker and others in their community.

15    After coming to Australia as an infant with his mother and father, he left a violent or strict home in Warilla on the South Coast, as a young teenager at 12 or 13 and was taken in by the Aboriginal community at Wallaga Lake. He came to be accepted by the community as Aboriginal. He is culturally accepted and recognised by the Aboriginal community as a Koori man involving long term and family connections with five local Aboriginal families – the Walkers, the Campbells, the Thomases, the Henrys and the Stewarts. He has lived and worked in this community all his life since he was 12 or 13. The human aspects of this are revealed by the simple (intending no disrespect) letter of the woman who now considers herself to be Mr Hands’ sister:

Justin was adopted in to my large Indigenous family at the age of 12. Justin went to school with my family, lived with my family and is a part of my extended family that lives from Wollongong to Eden.

Justin has been adopted into my family and has been raised as a Koori in the eyes of our family and the wider Indigenous community.

Justin has worked for a local Indigenous Community project at Windang in Wollongong.

Justin played in the local Indigenous football team, representing our culture and country in the NSW Indigenous football tournament that is run each year where Koori’s from all over NSW celebrate their culture, their tribes and their country by getting together over 3 days of football and celebrations.

Justin has Indigenous children and grandchildren which live on the South coast, to take away their father and grandfather will cause distress to his children and his grandchildren growing up without their grandfather.

I am in support of Justin continuing to live in Australia; it would be detrimental to deport Justin to New Zealand where he knows no one. Justin’s parents’ [sic] live in Australia who are getting on with age, his children, young grandchildren and his large Indigenous family.

To send Justin to a country where he has not lived since he was a baby would be a heart breaking to everyone mentioned above.

16    Mr Hands has four children by his first partner, a woman from the same local Aboriginal community. He has grandchildren from these children. His current partner of 12 or 14 years has grandchildren who view him as their grandfather.

17    Mr Hands has worked all his life and has become, through his family connections (and so kinship), through his acceptance as being part of the community, and through his life as a Koori man in all the life of the community in the tradition or culture of the Aboriginal community, an Aboriginal or Koori man of the community.

18    Mr Hands is far from perfect. He has a criminal record. His police record at the time of his sentencing in October 2016 reveals offences from 1990: 1990 – offensive conduct (street fighting) – fine $100; 1992 – taking more than the permitted amount of abalone – two fines of $200; 1994 – taking fish of more than permitted quantity and stealing – three fines of $800, $200 and $800; 1996 – malicious damage – fine $150 and compensation $100; 1999 – assaulting a police officer, resisting an officer in execution of duty and use of offensive language near a public place or school – three fines of $200; 2000 – resist or hinder a police officer in the execution of duty and not leaving a registered club when requested – two fines of $250; 2001 – contravention of an apprehended domestic violence order and assault occasioning actual bodily harm – three sentences amounting to 6 months’ imprisonment; 2002 – break and enter and assault of an officer in execution of duty – two sentences of imprisonment amounting to six months’ imprisonment; January 2015 – common assault – four months’ imprisonment; October 2015 – common assault – four months’ imprisonment.

19    Many of these offences involved alcohol and an inability to control his temper. The Magistrate in 2015 said: “You have trouble, in effect, maintaining your composure.”

20    The circumstances of the 2016 offence were stated by his solicitor in his plea at the sentencing hearing:

Your Honour you can see following his record from 1989 down through to today that he is from the Wollongong area, he does have family in the Bega area. This is not his first matter of violence and I think it is about his third matter [of] domestic violence and third or fourth of other types of violence of which custodial sentences have been imparted. Your Honour they are all family members and he is deeply ashamed of his actions he was, being highly intoxicated from the night before, they were in the middle of a move, they were staying with their in-laws, Mrs Walker’s place waiting to move down to the Bega area to have a home down there and he was just getting stressed to the max over all the stress that that was causing and other matters that were going on in his life and your Honour is going to have to say something on sentence about alcohol doesn’t assist any of those sorts of problems but your Honour he’s no stranger to custodial sentences but I’d ask your Honour to find against special circumstances. He has been in custody now since I think Saturday, since 2 October. He readily admits the offences your Honour, he is deeply remorseful, ashamed and embarrassed because these were not strangers or whatever, these are intimate family members and the young person indeed was his grandchild.

21    The sentencing remarks of the Magistrate, and the brief, simply expressed letters and references of Mr Hands and the members of the local Aboriginal community, including of Mr Hands’ partner, tell in their fragmented way, the story of a young troubled boy, adopted into the local Aboriginal community, growing into a working man, marrying, having a family and living with his strengths and weaknesses in a community which views him as part of it, which appears to value him, and which wants him to remain as part of it, as a Koori man, as a partner and husband, as a father, and as a grandfather.

22    The materials that were before the Assistant Minister that came from Mr Hands, his partner, family and community members reveal with some evocative elegance from their modest understatement and their lack of hyperbole, the possibly (indeed likely for some) devastating human consequences that removal will have for Mr Hands, his partner, his children (adult), his grandchildren and his family; and the effect on the Aboriginal community itself of taking one of its members – an accepted Koori man – away from it.

23    It is against that background that the operations of the Migration Act and decisions of the Executive are to be understood. The mandatory operation of s 501(3A) can be undone by the revocation of the mandatory decision. The will of Parliament is that the evaluative assessment as to whether someone who is a non-citizen who has a “substantial criminal record” should remain is to be made by the Minister in this framework of revocation.

The decision

24    The decision by the Assistant Minister not to revoke was made against the background of a draft set of reasons prepared by members of the Department for his consideration.

25    There are a number of places in which the reasons state that all the information in the attachments has been assessed and taken into account.

26    In [12] of the reasons the following appears:

In the representations/document submitted by or on his behalf, Mr HANDS has articulated reasons why the original decision should be revoked, which include:

-    He has been in a de facto relationship with an Aboriginal Australian partner for some 12 years and they intend to marry formally.

-    He has five step-grandchildren who are in the custody of his de facto partner and whom he has helped to raise.

-    His family would be devastated if he were deported as he is their support as much as they are his.

-    He has been in Australia since he was a young child and would like to stay here.

-    On release, he has employment available in the building and construction industry in the community and accommodation with his partner.

27    There is no reference in this paragraph to the effect on the Aboriginal community of removing from it a man long-accepted as being Koori and part of it.

28    Between [13] and [21] detailed consideration was given to the five step-grandchildren and his grandchildren by his own children.

29    Between [22] and [31] consideration was given to the “strength, nature and duration of ties”. This should be set out in full:

22.     In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the strength, nature and duration of Mr HANDS’s ties to Australia.

23.     Mr HANDS has resided in Australia for some 43 years, having arrived as a young child of three years. Given Mr HANDS has lived In Australia for most of his life and from a very young age, I hold the view that the Australian community may afford a higher tolerance of his criminal conduct and I accept that his primary national identification is likely to be with Australia.

24.     I accept that Mr HANDS has immediate family members in Australia, including his mother, brother, six aunts, one uncle, two nieces, one nephew and two cousins. I also accept that Mr HANDS has four Aboriginal adult children with whom he has a good relationship and sees regularly.

25.     I note that Mr HANDS has been in a de facto relationship with Ms Maria Walker for some 12 years, that he intends to reside with her upon his realise Into the community and they have plans to marry formally. He states he would not ask Ms Walker to leave Australia because she has her own children and strong ties to the Aboriginal community and so his removal would be the end of their relationship.

26.     I have also considered Ms Walker’s submission that she has been upset and depressed since learning of Mr HANDS’s possible deportation. I note Ms Walker’s advice that they have been in a relationship for 12 years and in this time Mr HANDS has supported her in raising her five minor grandchildren, that he is a loving and caring person who will do anything for his family, he is always cleaning the house and helping with other household duties such as gardening and taking the grandchildren to school. She has advised further that since Mr HANDS’ incarceration her own health has deteriorated from the pressure of caring for her five grandchildren and that to deport him would destroy their family. I have taken this into consideration.

27.     I have considered the Judge’s remarks on 1 October2015 in the Batemans Bay Local Court, remarking that while Mr HANDS is in prison, his partner would be doing it rough as she would be without his support.

28.     I note Mr HANDS has lived and worked with Aboriginal families and communities in Wollongong and Wallaga Lakes since leaving his family home in his early teens, as well as his statement that he is acknowledged as one of their own and was accepted working in the communities on the Community Development Programs for the length of the time that program existed. I have also taken into consideration the letter of support from the Elders of the Yuin Nation which states that the signatories consider Mr HANDS to be a member of their community and advise that he has lived with and has been culturally accepted and recognised as a Koori man within their community. I accept that Mr HANDS has thus made a valuable contribution to the local Indigenous community and has close ties to it.

29.     I note Mr HANDS was educated in Australia to a year 9 level and worked as a labourer and with his father but he has not specified the type of work he performed with this father. I note as well that he played football for three years with a local club.

30.     Mr HANDS has submitted a ‘Constituent Enquiry Form’ from the office of Mike Kelly MP, Member for Eden-Monaro, which outlines Mr HANDS' background, including that he grew up with the Aboriginal community, he has never returned to New Zealand, he has served his time in prison and should be sent home to his family. I have taken this into account.

31.     I have considered the effect of non-revocation upon Mr HANDS’ immediate family in Australia and accept that those persons would experience emotional hardship, and that his de facto partner would suffer considerable practical hardship as well. I find that Mr HANDS has made a positive contribution to the community and I have taken this into account.

30    A number of comments can be made about this. First, there is a reference to acceptance by the local community, but as part of a “valuable contribution to that community”. The circumstances reveal far more than a contribution to that community. Mr Hands is accepted by the community as a Koori man; his deportation will remove a member of that Aboriginal community from it.

31    The reasons then go on to deal, at [32] to [35], with the “extent of impediments if removed” as follows:

32.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr HANDS will face if removed from Australia to his home country of New Zealand, in establishing himself and maintaining basic living standards.

33.     Mr HANDS is a 46 year old man. He has not listed any major medical conditions, but states that being made to leave Australia would impact his state of mind, and that as far as he knows he does not have any relatives in New Zealand nor contact with anyone. He has not travelled to New Zealand since he arrived in Australia in 1974 and would have no support in New Zealand.

34.     I note that in their letters of support, friends and family have submitted that Mr HANDS has a strong connection to Australia and deportation would have a ‘huge’ impact on his mental, emotional and physical wellbeing as he has does not have a support network in New Zealand.

35.     While I accept that Mr HANDS may experience some emotional and psychological hardship if removed from Australia and separated from his family, specifically his de facto partner, New Zealand is culturally and linguistically similar to Australia and has comparable standards of health care, education, social welfare and housing support. As a citizen of New Zealand, Mr HANDS will have access to these services equal to that of other citizens of that country, which would help to facilitate his integration back into its society. Whilst I acknowledge Mr HANDS may experience short term hardship, I find that over time he would be capable of settling In New Zealand without undue difficulty.

32    The last sentence in [35] contains a finding of fact that was critical to the assessment. There is nothing in the material that could permit a rational finding that Mr Hands “may experience short term hardship”. To any person reading the material before the Assistant Minister, the only conclusion reasonably open would be that the removal of Mr Hands would in all likelihood be a crushing blow to him and his partner, deeply affecting him, his family and his community. The proposition that there would be short term hardship was unsupported by any material, and utterly at odds with any reasonable reading of the whole of the material.

33    This was not a peripheral finding by the Minister. It lies at the heart of his assessment of the effect of this decision on the people concerned, in this case Mr Hands.

34    From [36] to [60] the reasons deal with protecting the Australian community, concluding with [60]:

60.    Overall, while I acknowledge and accept Mr HANDS’ submission that he will not reoffend, intends to work and address the issues which led to his offending and not repeat his past mistakes, I note that he has had ample opportunity in the past to do so but has not done so effectively. Given his current rehabilitative efforts, or commitment to them, are yet to be tested in the community, I cannot rule out the likelihood of Mr HANDS succumbing to drug and alcohol use and external stresses in future and reoffending. I find, in view of his serious criminal history in Australia and Its recidivistic nature that there is a risk of further offending particularly in a domestic violence or violent context. Should he do so, it would be likely to result in conduct that could cause physical and/or psychological harm to a member or members of the Australian community.

35    Under the heading “Conclusion” the reasons for the decision were encapsulated at [61] to [70]:

61.    I considered all relevant matters including (1) an assessment of whether the person has made representations In accordance with the Invitation for the purposes of s 501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by s 501) for the purposes of s 501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original mandatory cancellation decision (original decision) should be revoked for the purposes of s 501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, Mr HANDS.

62.     I concluded Mr HANDS has made representations in accordance with the invitation.

63.     I am not satisfied that Mr HANDS passes the character test (as defined by s 501).

64.     In considering, in light of Mr HANDS’ 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 HAND’s minor grandchildren, step-grandchildren and child. I found that their best interests would be served by the revocation of the original decision.

65.     In addition, I have considered the positive contribution Mr HANDS has made to the Australian community through his employment and sporting activities, and to his local Aboriginal community and the consequences of non-revocation of the original decision for his other family members, especially his de facto partner.

66.     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 serious nature of the crimes committed by Mr HANDS, a number of which are of a violent nature involving domestic violence.

67.     Further, I find that the Australian community could be exposed to harm should Mr HANDS reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr HANDS.

68.     I am cognisant that where 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, even applying a higher tolerance of criminal conduct by Mr HANDS, than I otherwise would, because he has lived in Australia for most of his life and from a very young age.

69.     In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr HANDS represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of relevant minor children, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, his claims that he will suffer hardship and harm if returned to New Zealand, employment, volunteer and familial ties to Australia, and the hardship Mr HANDS, his family and social networks will endure in the event the original decision is not revoked.

70.     Having given full consideration to all of these matters, I am not satisfied, for the purposes s 501CA(4)(b)(ii), that there is another reason why the original decision under s 501(3A) to cancel Mr HANDS’ visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr HANDS’ Absorbed Person visa remains cancelled.

The primary judge’s reasons

36    The amended originating application before the primary judge had three grounds: (1) that the Assistant Minister did not give real consideration to the representations made to him; (2) that there were findings of fact for which there was no evidence, and indeed contrary evidence; and (3) that the decision was legally unreasonable.

37    As to the first ground, the argument focused on the representations concerning the Aboriginal community’s acceptance of Mr Hands as an Aboriginal person, the nature of his ties to the community, and the effect on the Aboriginal community if the decision was not revoked.

38    The primary judge carefully and fully discussed the authorities as to the need for the decision-maker to engage in an active intellectual process directed at the relevant circumstances and the nature of such an assessment – the need for a degree of clarity that real consideration has not been given; his Honour also recognised that statements of a formulaic kind or sweeping statements that all representations and documents have been considered will not shield from scrutiny whether in substance they have: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [43] to [47]; Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [40]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 [45] to[47].

39    The primary judge also observed the similar points made by Robertson J and Flick J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56] and Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [42], respectively, that whilst the representations as a whole were a mandatory consideration, caution is required in parsing and analysing the reasons for the absence of some weight to one aspect of the representations. Applying this approach, the primary judge said at [32] to [34]:

32.    Applying those general principles to the particular circumstances here, I reject Mr Hands’ submission that the Assistant Minister failed to give real consideration to his claims concerning his ties to the Aboriginal community and the effects of non-revocation not only on his extended Aboriginal family, but also on the broader Aboriginal community. I find that these matters were considered by the Assistant Minister as being matters that favoured revocation of the original decision, as is reflected in [28], [31], [65] and [68] of the statement of reasons. In particular, I consider that [31] and [65], fairly read, indicate that the Assistant Minister appreciated and took into account that non-revocation would affect other members of the Aboriginal community and not merely his immediate family. Having referred to the best interests of children at [64] and the positive contribution Mr Hands had made to the Australian community and to his local Aboriginal community at [65], the Assistant Minister expressly stated at [68] that the “strong countervailing considerations” were insufficient for him to revoke the visa cancellation. Furthermore, at [69] of his statement of reasons, the Assistant Minister referred again to the matters favouring revocation of the original decision, but reasoned that they were outweighed by the conclusion that Mr Hands posed an unacceptable risk to the community.

33.    I accept the Assistant Minister’s submission that the statement of reasons reveals that Mr Hands’ claims concerning his links to the Indigenous community, both personally through family connections and also through community engagement and the recognition of Mr Hands as a Koori man, were considered, but they were viewed by the Assistant Minister as being outweighed by other relevant considerations.

34.    For completeness, it might be noted that no submission was made on behalf of Mr Hands that, having regard to the fact that he had been accepted by the Elders of the Yuin Nation as a member of their community and was recognised as a Koori man, this necessarily gave him particular rights and interests, including, for example, under the Native Title Act 1993 (Cth), which needed to be taken into account. It appears that any such submission would have had to be rejected, having regard to the recent observations of the Full Court in Minister for Immigration and Border Protection v BHA17 [2018] FACFC 68 at [136]-[139].

40    As to the second ground, the primary judge rejected the submission at [38]:

38.    The Assistant Minister submitted that he had taken into account Mr Hands’ representations concerning the impediments which he said he would face if he had to return to New Zealand. The Assistant Minister was entitled to proceed on the basis that those representations provided a broad framework for his consideration of that topic. I accept the Assistant Minister’s submission that, having considered the material provided by Mr Hands (and there is no reason to doubt in the particular circumstances here that it was in fact considered), the Assistant Minister rationally reasoned that, while Mr Hands would experience some short term hardship, over time he would be capable to settling in New Zealand without undue difficulty. No specific evidence is required to underpin the Assistant Minister’s conclusion that there was a comparable system of healthcare and social support in New Zealand (see generally McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [35]-[37] per McKerracher J and Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [69] per Robertson J). Moreover, it was open to the Assistant Minister to reason, as he did in [38] of his statement of reasons, that New Zealand is culturally and linguistically similar to Australia and that Mr Hands would have access to services in that country which would help facilitate his integration in the longer term into New Zealand society.

41    As to the third ground, legal unreasonableness, the primary judge dealt with the matter succinctly but comprehensively at [40] to [42] of his reasons:

40.    Mr Hands contended that the non-revocation decision was unreasonable in the legal sense as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li). In particular, he contended that the decision was “arbitrary or capricious” and lacked an evident and intelligible foundation. It was submitted that these features were particularly exposed in the Assistant Minister’s statement of reasons concerning the section titled “risk to the Australian community” and in the Assistant Minister’s reasoning as to why this outweighed the best interests of relevant minor children and other considerations favouring revocation.

41.    The application of the ground of unreasonableness in the context of ministerial decision-making concerning the grant or cancellation of visas on character grounds was discussed at some length by the Full Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 and in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158. The Full Court’s observations in both those cases also apply to the statutory scheme relating to the discretion under s 501CA(4) of the Act. The same may be said in respect of the Full Court’s observations concerning judicial review for unreasonableness in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh).

42.    Recently, in Griffiths v Minister for Immigration and Border Protection [2018] FCA 629 at [2]-[64], I made some general observations about the human dimension of the statutory scheme concerning the mandatory cancellation of visas on character grounds and the need for the Court to observe the boundaries of its jurisdiction. Some, perhaps many, people will view the Assistant Minister’s non-revocation decision in Mr Hands’ circumstances as harsh, but I accept the Assistant Minister’s contention that his decision was not unreasonable in the legal sense. The statement of reasons discloses an intelligible justification for the Assistant Minister’s decision. The statement of reasons indicates that the Assistant Minister weighed a range of competing considerations but ultimately decided, in the particular circumstances here, that the considerations which favoured revocation were outweighed by other considerations, including findings concerning the risk of Mr Hands reoffending and the need to protect the Australian community. As the Full Court observed in Singh at [47], it would “be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable”. If the decision be viewed as harsh or even “cruel” (as described by Dr Pritchard), it is within the Assistant Minister’s “area of decisional freedom” and is not arbitrary or capricious. Ground 3 is rejected.

The appeal

42    No complaint was renewed on appeal as to legal unreasonableness.

43    The first complaint was concerned the findings of fact made in [35] of the Assistant Minister’s reasons dealt with by the primary judge at [38] of his reasons.

44    No complaint was made on appeal about the view expressed by the primary judge that “[n]o specific evidence is required to underpin the Assistant Minister’s conclusion that there was a comparable system of healthcare and social support in New Zealand”. Nor was that the essence of the complaint of the submissions below. Rather, the complaint was about the whole finding expressed in the last sentence that whilst Mr Hands may experience short term hardship, over time, he would be capable of settling in New Zealand without undue difficulty. Whilst the first part of that sentence was expressed as an “acknowledgment”, it is all to be viewed as a finding that Mr Hands will only suffer short term hardship and will thereafter settle in without difficulty. This is reinforced by the first sentence of [35] of the reasons. I do not consider that there was any rational or probative evidence to support such a conclusion that his emotional and psychological hardship would be short term. All the material, if considered, would lead any reasonable person to a conclusion that this decision, unrevoked, will cause lifelong grief and psychological hardship to a number of people, including Mr Hands. The existence of the same language and similar culture in New Zealand and the standard of healthcare and social services there are matters hardly to the point.

45    This was a central and crucial consideration. The separation of Mr Hands from his community, his wider family, his partner, his children, grandchildren and step-grandchildren is a life-changing decision, potentially life-destroying. The statements that he “may experience some emotional and psychological hardship” and “may experience short term hardship, [but] would be capable of settling in New Zealand without undue difficulty” are findings of fact simply incapable of being reasonably made by any decision-maker, there being no evidence at all to support them, and all evidence being to the contrary to a reasonable decision-maker.

46    The making of the findings, without any material to found them, given their central importance in the reasoning, is a sufficient basis to conclude that there has been jurisdictional error.

47    The fact that this could be said raises doubt that those drafting the reasons and the Minister adopting them have considered the whole human consequences of the decision, and thus whether real consideration was given to the totality of the representations. It is sufficient to rest, however, on the conclusion that a central finding of fact was made without any probative foundation.

48    The second point argued on appeal was expressed in ground 4 of the notice of appeal:

The Court erred at [32]-[33] of the judgment in finding that the Assistant Minister gave real consideration to the appellant’s representations in relation to his identification and acceptance by the Aboriginal community as an Aboriginal person, and the nature of his ties to the Aboriginal community; and in relation to the effects of a decision not to revoke the original decision on his extended Aboriginal family and the broader Aboriginal community.

49    The primary judge concluded that the references in [28], [31], [65] and [68] were sufficient. These paragraphs are set out above. The point sought to be made on appeal was that the reasons reflect only an acceptance that Mr Hands has contributed to the community with one reference (in [69]) to the “hardship … his family and social networks will endure”. There is barely a recognition, it was argued, of the effect on the community of taking someone away from it, someone considered to be Aboriginal. The appellant submitted that the primary judge misconstrued the ground of complaint. The complaint was not that there had been a failure to give real consideration to his claims concerning his ties to the Aboriginal community and the effects of non-revocation not only on his extended family, but also on the broader Aboriginal community ([32] of the primary judge’s reasons), but there had been a failure to take into account the representations in relation to his identification and acceptance by the Aboriginal community as an Aboriginal person, and the nature of his ties to the Aboriginal community.

50    A significant body of submission was put to the primary judge (and on appeal) about the nature or definition of Aboriginal status: by reference to descent, self-identification and community acceptance. There is no necessity here to deal with any legal question as to a definition of Aboriginality: cf Eatock v Bolt (2011) 197 FCR 261 at [188] to [189]; Attorney-General (Cth) v Queensland (1990) 25 FCR 125 at 148 and see Shaw v Wolf [1998] FCA 389; 83 FCR 113 at 122. That said, nearly 30 years after the Royal Commission into Aboriginal Deaths in Custody, two decades after the Stolen Generations Report (“Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families”), and after nearly forty years of recognition of land rights based on Aboriginal community of title (see Aboriginal Land Rights Act (Northern Territory) 1976 (Cth)), it is surely now part of Australian society’s cultural awareness and appreciation that kinship, family and community lie at the heart of Aboriginal society, underpinning its laws, rules, and social behaviour.

51    The representations to the Assistant Minister did not explore the legal and anthropological questions that may arise from this discourse. But they did put to him in simply and modestly expressed terms the fact of the acceptance of Mr Hands as a Koori man in the Wallaga Lake Aboriginal community. If modern Australian society’s cultural awareness and appreciation should be taken to be as I have stated, surely that should be at the very foundation of a decision which affects Aboriginal family and community. Mr Hands’ place in that community and the effect on the Aboriginal community of his removal were matters of significant importance. They were not considered or barely considered by the Assistant Minister. This was in circumstances where the countervailing consideration so heavily relied on by the Assistant Minister was the protection of the Australian community. That national conception and ideal, brought down to everyday human terms, is the community on the South Coast of New South Wales and, given the nature of Mr Hands’ offending, principally the local Aboriginal community.

52    Given that the decision should be set aside on the first ground, it is unnecessary to explore further this ground of appeal.

53    The orders that I would make are:

(1)    The appeal be allowed with costs.

    The order of the Court made on 11 May 2018 be set aside and in lieu thereof order:

(a)    A writ of certiorari be issued directed to the Assistant Minister for Immigration and Border Protection quashing the decision made on 9 October 2017 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the decision made on 16 February under s 501(3A) of the Migration Act 1958 (Cth) to cancel the appellant’s absorbed person visa.

(b)    The matter be remitted to the Minister for the making of a decision under s 501CA(4) according to law.

(c)    The respondent pay the applicant’s costs of the application.

Associate:

Dated:    17 December 2018

REASONS FOR JUDGMENT

MARKOVIC J:

54    I have read in draft the reasons to be published by the Chief Justice. I agree with the orders proposed by the Chief Justice and with his Honour’s reasons.

Associate:

Dated:    17 December 2018

REASONS FOR JUDGMENT

STEWARD J:

55    I have read the reasons for decision of the Chief Justice and respectfully agree with the conclusion his Honour has reached that the finding made by the Minister that Mr Hands “may experience some emotional and psychological hardship” and only “short term hardship” but would be capable of settling in New Zealand “without undue difficulty”, was not supported by any evidence at all. It follows that there has been jurisdictional error. I also agree with the orders the Chief Justice has proposed.

Associate:

Dated:    17 December 2018