FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The notice of contention is dismissed.

3.    The orders made by the primary judge on 6 July 2018 are set aside.

4.    In place of those orders, order that the further amended originating application for review of a migration decision dated 12 December 2017 be dismissed, with costs.

5.    The respondent pay the appellant's costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

RARES AND ROBERTSON JJ:

Introduction

1    This appeal is from the judgment of a single judge of this Court given on 6 July 2018. The primary judge allowed an application for judicial review of the decision of the Assistant Minister (Minister) made on 17 July 2017 not to revoke an earlier cancellation decision (the original decision) made on character grounds.

The statutory provisions

2    The terms of s 501CA of the Migration Act 1958 (Cth) are well-known and are as follows:

501CA    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.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

 (a)    would be the reason, or a part of the reason, for making the original decision; and

 (b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

 (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.

 (6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Note:    For notification of decisions under subsection (4) to not revoke, see section 501G.

3    The issue in this case is whether the primary judge erred in finding that the Minister made a jurisdictional error in not being satisfied "that there is another reason why the original decision should be revoked."

The representations

4    The terms in which the respondent put to the Minister the matters presently in issue were as follows.

5    In her 27 February 2017 representations, the respondent listed, under the heading in the form "Reasons for Revocation" (as written):

•    All my children are Australian citizens and currently living in Australia. The youngest is 3 years of age.

•    All my immediate family are living in Australia and provide me with emotional support and are currently the temporary caregivers for my children

•    I have no support from family in N.Z. and no friends all of my support comes from family and friends in Australia

•    I have not lived in N.Z. since I was a small child.

•    I will also have nowhere to live or no financial help in New Zealand

•    I need to be a part of my childrens lifes as I have 4 children under 12 years old here in australia.

6    A few pages later, under the heading "Impediments to Return" the respondent answered "Yes" to the question in the form "Do you have any concerns or fears about what would happen to you on return to your country of citizenship?". The respondent then provided answers to the form's questions as follows (as written):

If yes, please describe your concerns and what you think will happen to you if you return.

I will have nowhere to live no money and I'm scared I won't see my children for a long time.

Are there any other problems you would face if you have to return to your country of citizenship?

re establishing myself is a concern as I have no friends or other support as I have not seen other family members for over 20 years and my children are my main priority. and I would have nowhere to live or no money

The Minister's reasons

7    The relevant written reasons of the Minister are found under the heading "Extent of impediments if removed" and are as follows:

43.    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 Ms MAIOHA will face if removed from Australia to her home country of New Zealand in establishing herself and maintaining basic living standards.

44.    Ms MAIOHA is 38 years old. She has indicated that she suffers from depression and has a history of drug abuse. Ms MAIOHA currently takes medication for depression. Should treatment continue to be required I find New Zealand has a comparable health system to that in Australia, should she need access to such.

45.    Ms MAIOHA states that she is fearful that she will suffer hardship if returned to New Zealand due to leaving her parents, sister and six children behind. She states that her children are her life. She also states that she would have nowhere to live and no money.

46.    [One of the applicant's children] writes that he fears for his mother's 'safety, well-being and mental health if she was not to have the support she has had here'. He states that there is no one in New Zealand that will help his mother rehabilitate and 'get herself back together'.

47.    I note that Ms MAIOHA submits that she has no close family in New Zealand. I accept that Ms MAIOHA has an 'estranged' brother who would not be able to assist her due to his own circumstances and who plans to return to Australia in December 2017.

48.    I find that Ms MAIOHA will experience significant emotional hardship, due to leaving her children behind in Australia. Furthermore, she will undergo a period of adjustment due to her absence from New Zealand of over 28 years, as well as the practical changes to her life, such as accommodation and other familial and social networks.

49.    I find such hardships will not be insurmountable in light of New Zealand's similar culture, language and health system standards.

The following paragraph from under the heading "CONCLUSION" is also important:

91.     In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Ms MAIOHA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of her children as a primary consideration, and any other considerations as described above. These include her lengthy residence and bonds and the hardship Ms MAIOHA, her family and social networks will endure in the event the original decision is not revoked.

Proceedings before the primary judge

8    The ground of review which succeeded before the primary judge was ground 6. This ground was to the effect that the present respondent made a representation to the Minister that if she were required to return to New Zealand she would have nowhere to live and no money. The ground continued: the Minister failed to properly deal with this representation in a manner which resulted in the decision of the Minister being infected by jurisdictional error. The particulars supporting ground 6 were threefold: (1) the Minister failed to make a finding which addressed the present respondent's core point that she would have nowhere to live and no money; (2) the Minister did not give proper, genuine and realistic consideration to the representation; and (3) the Minister found that the hardship the present respondent may suffer "will not be insurmountable" but this finding was unsupported by probative material and as a result the decision of the Minister was legally unreasonable.

9    The primary judge held, at [32], that [44]-[49] of the Minister's reasons failed to engage in an active intellectual way with the present respondent's submissions as to her financial situation and accommodation and in failing to do so the Minister fell into jurisdictional error.

10    Her Honour found, first, that:

… in deciding whether there is another reason why the cancellation decision should be revoked under subs 501CA(4)(b)(ii), the Minister is required to consider any representations the applicant elects to make pursuant to subs 501(4)(a) of the Act "if in making representations, the applicant provided information to the Minister… and that information was critical and relevant to the applicant's case": Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55] (Robertson J).

11    Her Honour held that what she identified as "the basic living standards representations" (namely the respondent's representations that if returned to New Zealand she would have nowhere to live and no money) were a core aspect of the representations made by the present respondent in favour of revocation and "it was critical and relevant to her case."

12    Secondly, her Honour said, that being so, the Minister was required to give "the basic living standards representations" proper, genuine and realistic consideration. The three matters the Minister referred to at [49], that such hardships will not be insurmountable in light of New Zealand's similar culture, language and health system standards, did not address or respond to "the basic living standards representations" or explain why the hardship claimed by the present respondent in those respects would not be insurmountable.

13    The primary judge did not accept the Minister's submission that it could be inferred from the Minister's failure to address the matter in greater detail in his reasons that he found that it was not material. Her Honour said that even if it could be inferred that the Minister did not consider "the basic living standards representations" to be material, the question then arose as to whether the Minister fell into jurisdictional error in so finding.

14    The primary judge also held that, given the concerns raised by the present respondent about how she would live and how she would find accommodation if returned, against a complex background of disadvantage relevant to those concerns and a history which included a recent period of homelessness, it was not sufficient in this case for the Minister merely to assume (if in fact he did) as a broad proposition that the present respondent would have equivalent access to government benefits if returned to New Zealand and that this would suffice to give a proper, genuine and realistic consideration to "the basic living standards representations".

The notice of appeal and notice of contention

15    The Minister's notice of appeal contained two grounds, as follows:

1.    The primary judge erred in holding that the applicant's subjective fears to the effect that she would have nowhere to live and no money if she returned to New Zealand was a mandatory relevant consideration under section 501CA(4) of the Migration Act 1958 (Cth).

2.    The primary judge erred in holding that the Minister did not give proper, genuine and realistic consideration to the applicant's subjective fears to the effect that she would have nowhere to live and no money if returned to New Zealand.

16    The respondent relied on a notice of contention which originally contained two grounds. The second ground was not pressed. It was contended that the judgment of the primary judge should be affirmed, as follows:

1.    The Respondent contended before the primary judge that:

a)    The Appellant, in the course of making the decision on 17 July 2017 not to revoke the cancellation of the Respondent's visa ("the Non-Revocation Decision"), failed to give proper and genuine consideration to the Respondent's representation that she was a victim of domestic violence, and this was a reason why the decision to cancel the Respondent's visa should be revoked.

  b)    This was a jurisdictional error in the Non-Revocation Decision.

The submissions of the parties

17    The Minister submitted that there was no dispute that the respondent did not pass the character test. The question for the Minister was whether there was "another reason" why the original decision should be revoked.

18    As to ground 1, the Minister submitted the fundamental error was that the primary judge treated the respondent's submissions that she would have nowhere to live and no money if returned to New Zealand as a mandatory relevant consideration. It could be accepted that the representations advanced by an applicant "as a whole" were a mandatory relevant consideration, as it was in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55]-[56], but information advanced by an applicant to the Minister under s 501CA(4) which might be considered by the Court to be critical and relevant was not elevated in itself into a mandatory relevant consideration.

19    In this matter, the Minister submitted, the respondent's assertion that she would have nowhere to live and no money was among a number of particular assertions advanced by the respondent articulating her fears concerning hardship she might suffer if returned to New Zealand. The Minister submitted that a person in the respondent's position would have all kinds of fears, some validly held, some perhaps not. The respondent was entitled to advance those fears to the Minister. However, it was entirely another step to characterise each expressed fear of an applicant for revocation under s 501CA(4) as a mandatory relevant consideration.

20    As to ground 2, the Minister submitted that if he was required to give proper, genuine and realistic consideration to the respondent's representation that she would have nowhere to live and no money, he did so and the primary judge erred in finding to the contrary. One of the impediments which the Minister acknowledged, at [43] of his revocation decision, as needing (and receiving) consideration was "maintaining basic living standards". The submission that the respondent would have nowhere to live and no money was expressly noted at [45]. This was an aspect of the "hardships" which, the Minister concluded at [49], would not be insurmountable.

21    The Minister submitted that he was entitled to recognise New Zealand's similar culture, language and health system standards. The Minister submitted that he did not require evidence to rely on a broad proposition as to the benefits available in New Zealand. The Minister referred to McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37]. The Minister submitted he was entitled to proceed on the understanding that New Zealand had similar culture, language and health standards to Australia. Financial hardship was only an impediment to the respondent establishing herself in New Zealand to the extent that it would be worse there than in Australia.

22    The Minister submitted that the issue of maintaining basic living standards did not emerge from the factual material as a central issue in the case that demanded extensive analysis. It was unsafe to infer that the Minister, having acknowledged the issue, excluded it from consideration. The Minister submitted his findings at [43]-[49] addressed adequately the respondent's contention that she would have nowhere to live and no money.

23    The Minister also addressed in chief the remaining ground in the notice of contention. In relation to domestic violence, the Minister submitted that the evidence before him was that both the respondent and her former partner were violent towards the other. The respondent had been convicted of a number of domestic violence related offences. However, whilst the Minister was on notice of the domestic violence history of the respondent (as a victim as well as a perpetrator), the extent of the representation expressly advanced by the respondent in relation to being the victim of domestic violence was that it was a reason for her offending. The respondent indicated in her representations to the Department that her "20 year domestic violent relationship" was a factor towards her offending. The Minister took into account her "deeply dysfunctional" relationship as a factor relevant to her risk of re-offending: [64] of the Minister's reasons.

24    In any event, the Minister submitted, to the extent it was contended by the respondent that her having been a victim of domestic violence was a matter to which the Minister needed to give proper and genuine consideration, the Minister repeated his submission that he was not required to consider every matter advanced by the respondent, let alone matters that were not advanced expressly.

25    The respondent submitted that a representation made by her to the Minister in support of revocation was that she, if deported to New Zealand, would have nowhere to live and no money. The representation appeared in a number of places.

26    The respondent submitted that the problems or difficulties with the statements in [48]-[49] of the Minister's reasons were that (1) he did not address the question or make findings as to whether the respondent on return to New Zealand would find accommodation or a source of money to live; (2) none of the standards referred to (culture, language and health system) concerned the provision of accommodation or money to the respondent and the Minister did not refer to New Zealand's social welfare system; (3) the finding that the respondent will "undergo practical changes to her life, such as accommodation" did not address whether or how the respondent would find accommodation and it was unclear to a reader of the reasons whether the Minister considered that the respondent would or would not be able to find accommodation; and (4) the submission that the respondent would have nowhere to live and no money was resolved was left unstated.

27    The respondent submitted there appeared to be a slight divergence of approach between Full Federal Courts in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 and Minister for Home Affairs v Buadromo [2018] FCAFC 151. On application of the reasoning in Viane at [30] (Rangiah J) and [68] and [75] (Colvin J), the respondent submitted her representation was "a substantial clearly articulated argument … which … could be dispositive of the decision" or "a significant matter". The primary judge at [33] made a finding to similar effect in the present matter. On application of the reasoning in Buadromo, the Minister was required to consider the respondent's representations as a whole.

28    The respondent submitted that the Minister failed to properly or adequately consider the representation. The Full Court should affirm the finding of the primary judge at [32] that the Minister's decision "fails to engage in an active intellectual way" with the representation. First, the representation was clearly made by the respondent to the Minister. Second, the representation concerned a matter which was critical to the respondent's case that there was a reason the original decision should be revoked. Third, for reasons already explained, the Minister's decision did not include a finding dispositive of the representation. The respondent submitted that a reader of the Minister's decision is "left to guess" (Lafu v Minister of Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1 at [49]) as to whether the Minister considered that the respondent would be able to find accommodation and money to live if required to return to New Zealand.

29    In relation to the remaining ground in the notice of contention, the respondent submitted that a representation made by her to the Minister in support of revoking the original decision was that a cause of, or contributing factor to, her criminal offending was domestic violence by her former partner/father of their children, and this matter should be taken into account as a mitigating factor in favour of revoking the original decision. The respondent submitted the representation appeared in a number of places and forms:

 a)    in a document at AB 98.1 provided by the respondent to the Minister in a section titled "Criminal history and risk of re-offending" and in response to the question "Do you believe that there are any factors that help to explain your offence which should be taken into account by the decision-maker?":

"I was in a 20 year domestic violence relationship with the father of my children which caused most of my reasons for offending as well as a severe drug addiction …"

b)    in a typed statement by the respondent at AB 155 provided by her agent to the Department with a submission dated 8 June 2017 (see reference to "further statement" at AB 137 (item 6)):

17. After our second child was born we both started using drugs and our relationship became very violent for many years.

19. For years I hid my drug use and a lot of other things from my family, including my violent relationship with Lucas Johnson.

20. I was too ashamed to tell them that my children's father had become abusive and controlling towards me.

21. We continued our relationship even though the domestic violence and drug use had escalated …

22. We were both violent towards each other …

c)    in a handwritten statement by the respondent at AB 162 provided by her agent to the Department at the same time (see reference to "statement" at AB 137 (item 5)), which handwritten statement says the same at AB 162.6 as in the typed statement in (b) above;

d)    in a document written by the respondent's mother at AB 198 in which the mother stated:

"Lucas Johnson continually baited/taunted [the respondent] beat upon her so she would retaliate … Lucas would beat her up in front of the children and she would retaliate …"

e)    in a submission by the respondent's agent to the Minister at AB144.3 in a section "The nature and seriousness of the conduct":

"Whilst it is conceded that Ms Maioha has a relatively long history of domestic violence related offences, these were committed in context of her previously long-standing (and only) relationship to her former partner and father to her six children … There is evidence that the relationship was volatile on account of behaviour from both parties to the relationship and that this behaviour was exacerbated by drugs and alcohol. These factors are particularly relevant in terms of being mitigating factors to her offending …"

30    The respondent submitted that the Minister did not refer to this representation. The respondent submitted the question was whether this involved a jurisdictional error. On application of the reasoning process in cases such as Goundar, Viane and Buadromo, the respondent submitted the answer was "Yes".

Consideration

The appeal

31    In relation to mandatory relevant considerations there is perhaps a tension in the reasoning between Minister for Home Affairs v Buadromo [2018] FCAFC 151 and Hay v Minister for Home Affairs [2018] FCAFC 149, Hooton v Minister for Home Affairs [2018] FCAFC 142 and Viane v Minister for Immigration and Border Protection [2018] FCAFC 116. Buadromo did not consider Viane, perhaps because of the way the case was argued.

32    In Viane it was held that the representations the Minister failed to consider concerned the hardship the appellant's partner would suffer if she had to relocate to Samoa and that those representations were substantial and significant such that the Minister's failure to consider them should be characterised as jurisdictional error: see the judgment at [2] per Reeves J, at [31]-[32] per Rangiah J and at [75] per Colvin J.

33    In Hooton, the Full Court considered whether risk to the Australian community was a mandatory relevant consideration where the Minister made a decision under s 501CA(4). The Full Court followed BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78; 252 FCR 82 and distinguished the cases decided under s 501(2). The Full Court held, at [58], that at least in the absence of representations in response to an invitation under s 501CA(3) raising the point as a significant issue, risk to the Australian community is not such a mandatory relevant consideration. The Full Court referred to Foster v Minister for Customs and Justice [2000] HCA 38; 200 CLR 442; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 per McHugh, Gummow and Hayne JJ at [73]-[74] and also NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 at [165]-[168].

34    Even if the Minister is obliged to consider a particular matter the question arises whether the Minister is under an obligation to evaluate that matter in a particular way: see BSJ16 at [43]-[44] and Folau v Minister for Immigration and Border Protection [2017] FCAFC 214; 158 ALD 394 at [32] and [62].

35    In the present appeal, it is not clear that the primary judge did proceed by reference to mandatory relevant considerations as such, although ground 1 of the notice of appeal proceeds on that basis. The reasoning of the primary judge was that the Minister made a jurisdictional error in failing to engage in an active intellectual way with the respondent's critical and relevant submissions as to her financial situation and accommodation if returned to New Zealand. This is not the language of mandatory relevant consideration as traditionally understood: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-41 per Mason J.

36    Perhaps the misconception in ground 1 of the notice of appeal stems from the reference by the primary judge, at [33] of her Honour's reasons, to Goundar at [55], although that was a reference to what had been said, in a procedural fairness context, by the Court in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42]. It was on that basis that Picard was distinguished in Goundar.

37    Nothing turns on this issue of legal characterisation for present purposes: no procedural point was taken. The present issue is whether the Minister made a jurisdictional error in the manner in which he dealt with the respondent's representations to him that she would have nowhere to live and no money.

38    In Viane, it was held that the consequences that the Minister considered in relation to Mr Viane's partner and his young daughter were confined to those that would arise from the separation of Mr Viane from them. It was held that the Minister did not consider the possibility that they may relocate to Samoa or New Zealand as part of the family unit and the impediments that would arise for them in living in either place. It was held that the Minister considered only the educational opportunities that would be lost to Mr Viane's young daughter and did not consider the other consequences for her in that event and did not consider the consequences for his partner at all (even though this was advanced as a reason that supported revocation).

39    It is to be noted that in the present case the representations were as to the position the respondent said she would be in if returned. The present case does not concern other members of the respondent's family but the position of the respondent herself.

40    More important than any factual distinctions is that, in our opinion, in the present case the Minister did consider the consequences for the respondent if returned to New Zealand. The Minister considered the impediments the respondent "will face if removed from Australia to her home country of New Zealand in establishing herself and maintaining basic living standards." The Minister's conclusion, at [49], was that such hardships would not be insurmountable. We construe this to mean that, although at present, because she has not been returned to New Zealand, the respondent has nowhere to live and no money in New Zealand, that hardship on her return would be temporary only in light of New Zealand's similar culture, language and health system standards. The Minister accepted at [91] that the respondent would endure hardship if returned to New Zealand.

41    In Buadromo, another s 501CA(4) case, the Full Court agreed at [41] with the observations in Goundar at [55]-[56], analysing the matter by reference to the language of mandatory relevant considerations. The Full Court said at [46] that a decision-maker was not required to make a finding of fact with respect to every claim made or issue raised by an applicant. A finding of fact may not be required if a claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality. In that case, the Full Court said at [58]-[60] that although the decision-maker did not make an express finding that Mr Buadromo will or will not find it impossible to obtain work in Fiji, the decision-maker addressed whether Mr Buadromo was likely to find employment in Fiji or sufficient employment in order to provide for his family. The decision-maker was not required, the Full Court held, to make a precise finding about Mr Buadromo's prospects of obtaining employment in Fiji. The decision-maker addressed the issue, finding that Mr Buadromo had work skills which may help him gain employment in Fiji and expressly found that his children would suffer hardship were Mr Buadromo to be in Fiji rather than Australia.

42    In our opinion resort to the language of "proper, genuine and realistic consideration" is to be avoided where possible. As Flick J noted in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [45], in respect of this term:

But it has also been recognised that "[t]aken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review": Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]; (2010) 6 ASTLR 339 at 351 to 352 per Basten JA (Allsop P agreeing). See also: Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171 at [76]; (2007) 153 LGERA 450 at 467 per Basten JA. These words of caution have also themselves been oft-repeated: see, e.g., Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [30]; (2010) 243 CLR 164 at 175 to 176 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Tewao v Minister for Immigration and Citizenship [2011] FCA 1515 at [41] per Katzmann J. Indeed, Perram J has queried whether the phrase adds much to the analysis: Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22]. The formula of "proper, genuine and realistic consideration", it has also been said, "has the very real danger of creating 'a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised'": Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [24]; (2015) 231 FCR 513 at 520 per Flick, Griffiths and Perry JJ (applying Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [65]; (2001) 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ). However, whether these criticisms be correct matters not; the phrase "remains a useful touchstone to ensure that consideration given to a particular matter is such consideration as is required by law": Islam v Cash [2015] FCA 815 at [14]; (2015) 148 ALD 132 at 135 to 136 per Flick J.

43    To this list may be added Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [32]-[35]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [35]-[38] and Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [75]-[83].

44    The Full Court in Buadromo also referred to some of these authorities at [44].

45    What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put: compare Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] per Perram J. Additional adjectives do not assist that analysis and indeed tend to distract from it by being "apt to encourage a slide into impermissible merit review": Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] citing Swift v SAS Trustee Corporation [2010] NSWCA 182; 6 ASTLR 339 at [45]. Because the Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. Neither does the Court ignore such a statement.

46    In our opinion the Minister did have regard to the respondent's representations in the present case and it could not be said that he had not had regard to the representations that the respondent would have nowhere to live and no money if returned to New Zealand. Indeed, he found that the risk of harm that the respondent posed to the Australian community and the need to protect it from that risk outweighed the factors in favour of restoring the respondent's visa, including "the hardship Ms MAIOHA… will endure….": see [91] of the reasons set out at [7] above.

47    We would therefore, with respect, disagree with the primary judge at [32] that the passages from the Minister's reasons "failed to engage in an active intellectual way with the applicant's submissions as to her financial situation and accommodation and in failing to do so, the Minister fell into jurisdictional error."

48    It should again be emphasised that the issue for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked. It was for the respondent to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made. In the present case, in our opinion, the Minister was not required to give more extensive consideration to the representations put, such as investigating and making further findings, in particular findings as to how the respondent "would be able to manage those practical changes" as the primary judge appears to have held at [34]. The Minister found that there would be hardship for the respondent but that it would not be insurmountable.

49    We agree with the analysis in Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 where the Full Court recently said, at [47]:

… There was only one question that the Minister ultimately had to answer under s 501CA(4)(b)(ii) of the Act. It was whether he was satisfied that there was another reason why the original decision should be revoked. In the course of answering that question, the Minister was required to consider the representations as a whole as a mandatory relevant consideration: see Buadromo at [41]. If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the Minister may commit jurisdictional error: Viane at [30]. However, even though he considered that no submission had raised such obligations, the Minister did consider whether Australia owes any international non-refoulement obligations to the respondent. The primary judge held that "the right question" was whether non-refoulement obligations arose on account of what would happen to the respondent (being a person who had applied for a protection visa in Australia) if he were returned to China. As we have held, that claim was not raised in the representations and the Minister was not required to consider it. There was no error as a result of the Minister's failure to answer that question…

50    It follows, in our opinion, that the Minister did not make a jurisdictional error by failing to make a finding, beyond those he made, that the respondent would suffer hardship that would "not be insurmountable in light of New Zealand's similar culture, language and health system standards", which addressed in greater detail the respondent's representation that she would have nowhere to live and no money if returned to New Zealand. It was for the respondent to satisfy the Minister that her prospective hardship was another reason why the original decision should be revoked. The Minister was not legally required to analyse the representation in order to negate it, the Minister not having been satisfied by what the respondent asserted. It was also not necessary for the Minister's conclusion that the hardship that the respondent may suffer "will not be insurmountable" to be supported by probative material outside what the respondent had put by way of representation.

The notice of contention

51    The remaining ground in the notice of contention concerned the issue of the representation that the respondent was a victim and not merely a perpetrator of domestic violence.

52    The first question is whether the respondent put to the Minister that although she had been violent to her partner, her partner had either provoked that violence or been violent to her on at least some occasions and that this should be taken into account as a mitigating factor in favour of revoking the visa cancellation decision. We accept that the respondent put, as relevant to the nature and seriousness of offending, that her partner had become abusive and controlling towards her and that they were both violent towards each other, but it was also put on her behalf by her migration agent as going to the nature and seriousness of the conduct "that the relationship was volatile on account of behaviour from both parties to the relationship…".

53    Having addressed, at [63], risk to the Australian community through re-offending having regard to any mitigating or causal factors in the respondent's offending, the Minister took into account, at [64], what had been said by the courts in sentencing remarks, her relationship being described in 2016 proceedings as "deeply dysfunctional". In addition, in our opinion, the Minister took sufficient account of the respondent's representation at [80], referring to the relevant relationship as a "volatile relationship", as it had been described by her migration agent. No jurisdictional error on the part of the Minister has been made out in this respect.

Conclusion and orders

54    We would uphold ground two and allow the appeal. We would dismiss the notice of contention. The respondent should pay the appellant's costs, as agreed or taxed.

Associate:

Dated:    5 December 2018

REASONS FOR JUDGMENT

Flick J:

55    The decision-making task of the Assistant Minister for Immigration and Border Protection ("Assistant Minister") in the present case arises in the statutory context where a decision has already been taken by a delegate of the Minister for Immigration and Border Protection pursuant to s 501(3A) of the Migration Act 1958 (Cth) to cancel the visa of the Respondent (Ms Rebecca Rewa Maioha). The cancellation of Ms Maioha's visa was mandatory because she failed the "character test" on the basis of her "substantial criminal record" and she was serving a term of imprisonment on a full-time basis.

56    Notice of the making of that decision was given to Ms Maioha pursuant to s 501CA(3) of the Migration Act and she made "representations … about revocation of the original decision" pursuant to an invitation given under that section.

57    Pursuant to s 501CA(4), the Minister has a discretion to revoke the original cancellation decision if the person makes "representations" and the Minister is "satisfied" either that the person passes the "character test" or that "there is another reason why the original decision should be revoked". Accordingly, the task of the Assistant Minister in the present case was to form a state of satisfaction as to whether there was "another reason why the original decision should be revoked".

58    The Assistant Minister gave reasons for his decision declining to revoke the "original decision". A Judge of this Court concluded that the Assistant Minister fell into jurisdictional error by failing to give proper consideration to a submission made by Ms Maioha that she would have "nowhere to live and no money" if she were to be returned to New Zealand: Maioha v Minister for Immigration and Border Protection [2018] FCA 1016.

59    The Minister now appeals. A Notice of Contention has been filed by Ms Maioha.

60    Concurrence is expressed with the conclusion of Rares and Robertson JJ that the appeal is to be allowed, albeit by a different path of reasoning. Concurrence is also expressed with the orders proposed by their Honours.

The discretionary power conferred by s 501CA(4)

61    The joint reasons of Rares and Robertson JJ set forth the terms of s 501CA, the terms of the "representations" made by Ms Maioha, and the reasons of the Assistant Minister. They need not be repeated.

62    An exercise of the discretionary power conferred by s 501CA(4) requires the consideration of "representations" which have been made by a visa holder: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55] to [56] per Robertson J; Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [41] per Besanko, Barker and Bromwich JJ; Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 at [47] per Jagot, Rangiah and Banks-Smith JJ. A proper consideration of "representations", however, does not require the consideration of all such matters as may be found to have been set forth in those "representations" by the visa holder. A visa holder is not to be permitted to pursue a course of parsing and analysing "representations" with a view to identifying some peripheral matter which has not expressly found its way into the reasons for a decision made under s 501CA(4) and to thereafter rely upon the absence of such a reference to establish jurisdictional error.

63    But there may be circumstances in which a failure to expressly take into account some discrete matter set forth in the "representations" may lead to – or assist in reaching – a conclusion that the "representations" have not been properly considered as a whole: Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [42].

64    On the facts of the present case, it is not Ms Maioha who seeks to impugn the reasoning of the Assistant Minister by reason of the absence in the reasons provided of an express reference to a discrete submission or assertion found within her "representations". On the facts of the present case, it is the Assistant Minister who has discerned from the matters addressed in Ms Maioha's "representations" a particular submission which has attracted his attention. This was Ms Maioha's statement that she would have "nowhere to live and no money". Had the Assistant Minister said nothing of this discrete submission, it may well have been the case that any failure to do so may not have assumed legal significance. But the Assistant Minister has incorporated within his written statement of reasons a specific reference to this discrete submission. In doing so, this submission of Ms Maioha is to be taken as forming part of the Assistant Minister's reasoning process and informing the exercise of the discretion conferred by s 501CA(4).

65    Having identified this discrete submission as part of the Assistant Minister's reasoning process, the two interrelated questions which arise are:

    what is the nature of the consideration which must be given to a particular submission advanced by a visa holder and which forms part of the reasoning process leading to a state of satisfaction for the purposes of s 501CA(4); and

    does such consideration as was given to this particular submission advanced by Ms Maioha that she had "nowhere to live and no money" lead to the conclusion that the Assistant Minister failed to properly consider Ms Maioha's "representations"?

66    As to the former of these questions, much depends upon the nature of the submission in issue. Some submissions may raise factual matters peculiarly within the knowledge of the visa holder; other submissions may raise matters beyond the knowledge of the visa holder but readily ascertainable by the Minister or an Assistant Minister.

67    Whatever the character of the submission under consideration, it may presently be accepted that it remains primarily the task of the visa holder to place before the Minister or Assistant Minister – at least initially – such material as enables the Minister or Assistant Minister to be "satisfied" that (relevantly) there is another reason why the original decision should be revoked.

68    A failure on the part of the visa holder to present factual matters for consideration which are peculiarly within the knowledge and control of the visa holder may well lead to the conclusion that the Minister or Assistant Minister cannot reach a state of satisfaction favourable to the visa holder. In such circumstances, the Minister or Assistant Minister may well conclude on the materials presented that he cannot be "satisfied … that there is another reason why the original decision should be revoked". In doing so, the Minister or Assistant Minister cannot be held to have failed to properly discharge the task of forming a state of satisfaction by not taking into account factual matters not advanced for consideration by the visa holder.

69    Different issues arise if a visa holder raises a submission which is partly within his own control and knowledge and partly within that of others or even a consideration which is totally beyond his own control and exclusively within the control of others. To place upon the person making the "representations" the sole responsibility for putting before the Minister or Assistant Minister such factual matters as are of relevance to the submission advanced may deny a real opportunity to respond to the invitation extended and a real opportunity to make "representations". To be "invite[d] … to make representations" in circumstances where it is beyond the ability of the visa holder to gather factual information of central relevance to the submissions being advanced for consideration may not be much of an invitation at all and not an invitation that satisfies the requirements of s 501CA(3)(b). For the Minister or Assistant Minister to simply acknowledge that the submission had been made, without more, may expose the decision-making process to judicial scrutiny by reason of failing to engage with a submission identified by the Minister or Assistant Minister as assuming relevance.

70    As to the second question, it is respectfully concluded that on the facts of the present case no such difficulties arise. The Assistant Minister did give adequate and proper consideration to the submission advanced by Ms Maioha and did engage with that submission: cf. Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [35], (2017) 252 FCR 352 at 361 per Griffiths, White and Bromwich JJ. That conclusion is reached by reason of the fact that:

    the character of the submission being made was one inherently within the control and knowledge of Ms Maioha – she was the one upon whom the primary responsibility lay to place before the Assistant Minister, as part of the "representations" she was making, such further facts as she considered would support the submission that she had "nowhere to live and no money"; and

    paras [44] and [49] of the Assistant Minister's statement of reasons are to be construed as the Assistant Minister reaching a state of satisfaction by reference to each of the matters mentioned in those paragraphs – to read those paragraphs as a resolution of each of the matters mentioned, but as excluding from consideration the reference in para [45] to Ms Maioha having "nowhere to live and no money", would be to interpret those reasons with an eye attuned to the detection of error rather than in a practical and common sense manner: cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

71    It follows that the appeal should be allowed.

Associate:

Dated:    5 December 2018