FEDERAL COURT OF AUSTRALIA

Tran v Minister for Immigration and Border Protection [2019] FCAFC 126

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the appellant to rely upon matters and grounds not advanced before the primary Judge.

2.    The appeal be dismissed.

3.    The appellant pay the respondent’s costs of and incidental to the appeal.

4.    The appellant’s interlocutory application filed 7 August 2018 seeking an adjournment of the appeal is dismissed.

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

REASONS FOR JUDGMENT

GREENWOOD J:

Background

1    This is an appeal from the whole of the judgment of Bromwich J (the “primary judge”) who made orders on 19 March 2018 dismissing the appellant’s application for judicial review of a decision made by the Parliamentary Secretary to the Minister for Immigration and Border Protection (hereafter called the “Assistant Minister”) not to revoke the cancellation of the appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (the “Act”): Tran v Minister for Immigration and Border Protection [2018] FCA 342.

2    The appellant is a citizen of Vietnam who arrived in Australia on 7 June 1990 at the age of 15 as the holder of a Funded Special Humanitarian (subclass K4B12) visa. Since arriving in Australia, the appellant has departed Australia only once when he travelled to Vietnam in 1994 to visit his parents. On 15 November 1994, the appellant was granted a Class BB Subclass 155 Five Year Resident Return visa (“visa”). The appellant thus became a lawful non-citizen under the Act.

3    On 26 April 2016, a delegate of the Minister for Immigration and Border Protection cancelled the appellant’s visa on character grounds pursuant to s 501(3A) of the Act (the “cancellation decision”). Section 501(3A) provides that if the Minister is satisfied that a person does not pass the character test because, relevantly in this case, the person has a “substantial criminal record” (as that term is defined by s 501(7)(c); that is, “the person has been sentenced to a term of imprisonment of 12 months or more”), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory, the Minister must cancel the visa.

4    In this case, the delegate was satisfied on (or as at) 26 April 2016, based on information before the Department of Immigration and Border Protection, that the appellant did not pass the character test on the following ground:

You have a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) of the Act. Under s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 13 September 2013 you were convicted of Aggravated Break and Enter a Dwelling House and sentenced to six years imprisonment.

[emphasis in original]

5    In the delegate’s letter of 26 April 2016, the delegate also said this:

The information based on which the decision maker was satisfied that you do not pass the character test is Sentencing Remarks in the District Court of New South Wales at Sydney on 13 September 2013.

6    The delegate was also satisfied, based on the “information available”, that the appellant was serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory having regard to a “Conviction, Sentences and Appeals report” from the New South Wales Department of Corrective Services dated 11 April 2016.

7    Section 501CA(3)(a) casts a mandatory obligation on the Minister to give the appellant in respect of a cancellation decision under s 501(3A), written notice that sets out the original decision and particulars of the “relevant information” (as defined). Section 501CA(3)(b) casts a mandatory obligation on the Minister to invite the appellant to “make representations to the Minister” within the relevant period (and in the manner set out in the Migration Regulations 1994 (Cth)) “about revocation of the original decision”. Section 501CA(4), at the date of the Assistant Minister’s decision, provided that the Minister may revoke the original decision if the person “makes representations” in accordance with the invitation and the Minister “is satisfied” that the person passes the character test (s 501CA(4)(b)(i) of the Act) or there is “another reason why the original decision should be revoked”: s 501CA(4)(b)(ii) of the Act. As to the text of the relevant elements of the statutory provisions see [106] and [107] of these reasons. I will return to the integers of these provisions and questions of construction later in these reasons.

8    As to the making of representations as to revocation of the cancellation decision, the appellant was told this in the letter of 26 April 2016:

Under s 499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which identifies issues that are relevant to the revocation consideration [a copy of Direction 65 was enclosed with the letter]. You should address each paragraph in PART C of the Direction that is relevant to your circumstances.

Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa.

9    As to Part C of Direction 65, para 13(1) notes that where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation “given the specific circumstances of the case”. Paragraph 13(2) says that in deciding whether to revoke a mandatory cancellation of a non-citizen’s visa, the following considerations are the primary considerations: (a)  protection of the Australian community from criminal or other serious conduct; (b)  the best interests of minor children in Australia; (c)  expectations of the Australian community.

10    As to the protection of the Australian community, para 13.1(1) provides that when considering that matter, decision-makers should have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Paragraph 13.1(2) provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

11    As to the nature and seriousness of the conduct, para 13.1.1(1) sets out a series of factors to be taken into account including the principle that violent crimes are viewed “very seriously”.

12    As to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, para 13.1.2(1) provides that in considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In considering the risk to the Australian community, decision-makers “must have regard to, cumulatively”, the “nature of the harm” to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct (para 13.1.2(2)(a)) and the “likelihood” of the non-citizen engaging in further criminal or other serious conduct (para 13.1.2(2)(b).

13    Paragraph 13.2 addresses the topic of the best interests of minor children in Australia affected by the decision (the second of the primary considerations). As to that matter, decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke (or not to revoke) the mandatory cancellation decision is expected to be made: para 13.2(1) and (2).

14    Paragraph 13.2(4) provides that in considering the best interests of the child, the following factors must be considered, where relevant:

(a)    The nature and duration of the relationship between the child and the non-citizen. …;

(b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18. …;

(c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

(e)    Whether there are other persons who already fulfil a parental role in relation to the child;

(f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

…

15    As to the third primary consideration concerning the expectations of the Australian community, para 13.3(1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 13.3(1) provides that non-revocations “may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa”. Paragraph 14 provides that in deciding whether to revoke the mandatory cancellation of a visa, other considerations “must be taken into account where relevant” and they “include (but are not limited to)” these considerations, (relevantly here): the strength, nature and duration of ties; the impact on victims; and the extent of impediments should the person be removed from Australia.

16    The appellant responded to the invitation of the Minister’s delegate and made representations within the required timeframe in the required manner. In making representations by his letter of 12 May 2016, the appellant elected to address these topics: the protection of the Australian community; the seriousness and nature of the appellant’s prior conduct; the risk that the appellant might re-offend; the best interests of the appellant’s children; the age when the appellant came to Australia and how long the appellant has lived in Australia; educational activities undertaken in Australia; family ties and other relationships; health; ties to Vietnam. In doing so, it seems clear enough that the appellant selected these topics having regard to Direction 65 enclosed with the cancellation letter of 26 April 2016 and the paragraphs of that letter quoted at [8] of these reasons.

17    In the appeal proceeding, the appellant appeared before the Full Court on his own behalf, assisted by an interpreter. It became apparent that the appellant has a reasonable degree of versatility in the English language (as his handwritten representations in support of revocation of the cancellation decision also make clear) and accordingly the Court invited the appellant to make his submissions directly. To the extent that the appellant needed assistance from the interpreter, he was, of course, free to seek that assistance. Nevertheless, the appellant was not assisted by legal advisers and it falls to the Court to examine precisely what the appellant is trying to say by way of challenge to the decision not to revoke cancellation of his visa and then examine whether the Assistant Minister stepped outside the limits of his decision-making power or not, having regard to that challenge.

Appellant’s representations for revocation of the cancellation decision

18    As mentioned, on 12 May 2016 the appellant by a handwritten letter made representations addressed to the National Character Consideration Centre (the “NCCC”) of the Department of Immigration and Border Protection in accordance with the invitation in the letter of 26 April 2016, “about revocation of the cancellation decision”. In that letter, the appellant made the following observation in relation to the topic of the protection of the Australian community:

1.    The Protection of The Australian Community

(a)    The Seriousness and nature of conduct. As can [be] seen from the material that you attached to your letter of 26/4/16 I have a long criminal record that I am not proud of. My earlier conviction[s] were drug related, and these were to feed my then drug dependency. I have been drug free since 2004.

19    The appellant also said this:

For my recent offence of aggravated Break and enter, I received a sentence of 6 years with a non parole period of 3½ years. This is at the lower end of the scale, and the judge took into account a lot of things that had happened in my life. The judge also took into account the comments of Probation and parole that I had responded well to supervision.

20    As to the reference to the recent break and enter offence, the appellant was found guilty on 21 June 2013 on a charge of “aggravated break and enter a dwelling house” after a trial at which the appellant pleaded not guilty. The charge was that “on 10 December 2010, the [appellant] did break and enter a dwelling house the property of Yan Gu … with intent to commit a serious indictable offence therein, namely, larceny, in circumstances of aggravation and namely that he, the [appellant] was in company with another unknown person”.

21    As to the appellant’s reference to the sentencing judge having taken into account “a lot of things” that had happened in the course of the appellant’s life, these observations of the sentencing judge should be noted:

I take particular note of the fact that his background included the traumatic experience of having been a refugee in a Hong Kong refugee camp for a number of years. There can be few experiences for anybody more likely to be damaging to a person’s conception about proper conduct than being dislocated and placed in the difficult circumstances of a refugee camp. There is an important decision of the New South Wales Court of Criminal Appeal called R v Fernando in which the Court talked about the significance in sentencing even for grave crimes of gross dislocation during childhood. In that case, although it dealt specifically with the problems of Aboriginal family and cultural dislocation, [the Court] made the point that such a factor is relevant in sentencing not only for people of an Aboriginal background but also for people of other backgrounds where corresponding desperate circumstances apply in the early years of an offender’s life.

22    As to the appellant’s “traumatic” and, in many ways, tragic, background, it should be noted that the appellant came to Australia with his brother from a refugee camp in Hong Kong. His parents had arranged for the appellant and his older brother to flee Vietnam to Hong Kong. The appellant was then aged only eight. He was 15 years (and two months) old when he arrived in Australia on 7 June 1990 having spent seven years in a Hong Kong refugee camp. The appellant was born on 2 April 1975. His only relative in Australia was his brother. Thereafter, the appellant sought to make a life for himself and his family in Australia.

23    As to the risk that the appellant might re-offend, the appellant said this in his written submissions (representations) of 12 May 2016:

My last offence [the conviction on 21 June 2013] is obviously not my first one, but having now been incarcerated for the last 3½ years I have had the opportunity to think through what I have done. I am ashamed about the way I have behaved in the past and deeply regret the hurt I have caused my wife and children, as well as the various victims of my crimes.

If I am allowed to remain in Australia, I will not repeat the mistakes of my past. I am now in a much better position mentally and morally to where I was before, and with the love and support of my wife and children and extended family, I know I can succeed.

24    In the representations, the appellant asserts that he is now a more responsible person. In part, the expression of that responsibility is said to be that he worked in the local jail museum making handbags and engaging in woodwork with the result that he was able to send money on a regular basis to his wife for his children’s education, sport and other things. He says that on average he would send them about $500 per month. He also asserts that he will not re-offend “as if I do I will not see my children grow to become young adults, married and subsequent children that would follow”.

25    As to the topic of the best interests of his children, the appellant made these representations in the 12 May 2016 letter:

I have 3 children – 2 daughters 1 aged 18, and 16 and a son aged 13 [as at the date of the letter, 12 May 2016]. They are all Australian citizens and have lived their entire life in Australia. Before coming to prison, I lived with all my children and my wife.

My family visit me regularly in prison and I speak to them on average 3-4 times per week. …

While visits and telephone calls are great, it is not the same as seeing them everyday, going to the movies, sport, restaurants when you want to. I realise now more than ever that I have let them down by my behaviour and I will not do this again.

If I had to leave Australia, I would not see my children again, or at least for a very long time. Even though I came original[ly] from Vietnam, my children have never been there. My children do not speak Vietnamese. My wife would not be able to afford to fly there and my children to Vietnam to see me and as I would not be allowed to return to Australia, this would be the end of our relationship. I love my wife dearly, she is my soul mate. My children are my friends and pride and joy, I am so proud of them.

Due to the roots that my wife and children have established in Australia, I could not ask my wife and children to leave Australia with me. They have made Australia their home, it is all my children know, they are settled, and happily at school. They have lots of friends and support from my wife and immediate family.

My wife was also a refugee having fled Vietnam to Hong Kong, and then to Australia. Her father has passed away and she has no relatives in Vietnam.

26    The appellant says that he has lived in Australia since arriving in this country at the age of 15. He has not received any formal education in Australia although he has attended an English language school for a period of about 18 months. He says that in his early days in Australia he was a drug user and this resulted in his having committed crimes to “feed [his] habit”. As mentioned, he says that he has been drug-free since 2004.

27    As to the topic of family ties and other relationships, the appellant says this in the written submissions:

My primary relationship is with my wife, Thi Hong Le who I have been married to for over 22 years. I first met her when we were in the refugee centre in Hong Kong, she was also a refugee from Vietnam. We started going out when we were young. She is now an Australian citizen. Due to what I have done over the years life has not been easy for us … she is the glue that hold our family together. … My wife due to my prison spells has had to work on occasions two jobs per week to make ends meet. She has had to raise our children on her own. My father has passed away, my mother is 86 years old and live[s] with my brother in Vietnam and my sister. They are my only relatives in Vietnam and I do not wish to return to my country of birth. My brother has been in prison previously … I am closer to my wife brother and sister [which seems to be a reference to the appellant’s brother-in-law rather than his brother], all of which are in Australia. This includes her mother [the appellant’s wife’s mother], who I consider more of a mother to me, than my own. I have nine nieces/nephews in Australia. They with my wife and children are my family.

As I have said above, I have no ties to Vietnam. I do not know what I would do once I arrive there. I do not have a place to live, or to work. I don’t know my way around, I do not know anything about the services it offer[s] people. I again repeat I do not want to live with my brother [in Vietnam] due to his previous criminal record.

28    As to the previous warning concerning the risk to the appellant’s visa should the appellant engage in further criminal offences (mentioned later in these reasons), the appellant said this:

I hope and pray that you will allow me to stay in Australia. I know you warned me in April 2007, that if I committed any further criminal offences, that it may result in me losing my visa. I was stupid, I didn’t understand the seriousness of the situation. The reality has now hit me that what I did could result in me never seeing my wife and children ever again. The thought of that is something that I could not bear. My wife is my soul mate, I love her dearly. She deserves me staying in Australia more than I do. I need to repay her and Australia for what I have done. I will not reoffend. …

29    As to the society of the appellant’s children in the appellant’s life, the appellant said this:

I want to see my children grow into adulthood, become husbands and wives, have children, become a grandfather. I want to see them grow into people that respect the law, become community minded. Something I did not do. I want the opportunity to show my wife and my children that they can be proud of me. I want to show them that I am a changed man, and that what I have done was wrong and that I have to [leave] my old life behind me.

30    On 4 December 2016, the appellant sent a further letter to the NCCC. In that letter, he said this:

… I wish only to return to my family before it is too late and my children all grown and left home. I have missed too much time with them and I am desperate to support and provide for them as I should. I am desperate to help my dear wife of 22 years, Thi Hong Le, who has struggled on for too long without me. She deserves so much and a man who can be relied upon to protect and work for our family, and yet she wants me. I cannot ask my family to come to Vietnam if I am to go there. My [children] have their lives established here, their dear friends, their schools and university and they cannot speak Vietnamese. There would be nothing for them in Vietnam, as there is nothing there for me.

31    The appellant also further explained some aspects of his early life. He said that when he entered the refugee camp in Hong Kong he was without his mother and father and other siblings. He travelled by boat with his older brother who was then only 15. In the refugee camp, they were provided only with food and shelter. They received no schooling or other support and only very little basic English. They were there for seven years.

32    In the further submission, the appellant emphasises that his son, James, is at a time in his life when he really needs his father to be with him. He says that his daughters need their father to protect and encourage them.

33    Apart from these submissions, the appellant’s family also put letters before the decision-maker in support of the appellant’s submissions on revocation. The appellant’s wife, Thi Hong Le, submitted a letter dated 1 May 2016. In that letter, Ms Le mentions some of the background material already mentioned in these reasons and says this:

Despite being away for most of the years of his children’s lives [due to detention in Correctional Centres], he’s always been a positive fixture to our lives, and can only continue to be if he remains in Australia.

My husband is a man who greatly loves and adores his family, especially his children. There’s without a doubt he’s a dedicated and devoted family man, supporting his children and encouraging them always … He pushes them in the best ways and has all the best advice for them always. It’s heartbreaking, not only as a mother but as a loving wife – to see my husband possibly lose additional years from seeing his own children as a result of his VISA cancellation. As much as him being detained has cost us in valuable years from each other as a family, it’s extremely important to me [that] there aren’t many more years I’d have to endure knowing he can’t be with his family. It will probably feel like the longest years of my life before I see him again if his deportation becomes a reality, and as much as I understand the consideration of the decision, I do not understand the need for it.

… To cancel his visa and risk him never returning to Australia – to where his family and friends all reside – is a decision I truly cannot comprehend. I have known my husband for 27 years and I can safely say his time served in correctional facilities have made him a different man. …

34    Apart from that letter, the appellant’s wife wrote a further letter to the NCCC (Attachment 4). In that letter, she says this:

I’m a mother of three children, so I have a full time job as a parent. I work on a single income, eleven hours a day, six days a week. My job never stops, when I come home I have three children to feed …

I know my husband, he’s a family man through and through, heart of gold no matter what his mistakes. His detainment didn’t let him falter in his role as a father figure to my children. He was still there for them both when he was in and out of prison. …

As much as I need him home where he belongs, there is only so much I can do with the little amount of time I leave aside for myself each week. … I’ve postponed surgery I need for my foot as it would take months of recovery, months I do not have to spare as my work does not allow me that freedom. …

I’m writing to ensure that my husband will come home to me, as I am only one woman shouldering my whole family without the key support of my partner.

35    The appellant’s daughter, Joanna Tran, also submitted a letter dated 1 May 2016 in support of the appellant’s representations on revocation. Joanna Tran says this:

… I am his 19 year old daughter, the eldest of his three children. I am fully aware of his criminal record, and his time served at correctional centres. I am writing for the sake of my family, my father, and for myself – to appeal to your better judgement to annul the deportation.

His stay in Australia is very important for many reasons, as he is an integral part of many people’s lives here. My mother has been supporting three children for most of her life. … It’s an arduous lifestyle to lead, and quite stressful as you may imagine. I remember the years when my father was released for a short period of time, allowing him to become a supporting figure within our lives. Those years had the most stability. … I am currently studying at University of New South Wales while also working part time in order to support my mother’s mortgage, bills and family necessities. It’s a measly means of security.

He’s been a great help, both as a father figure and partner to my mother. Despite his long-term incarceration, his presence and frequent phone calls were grounding and reassuring to my family – a sureness that he was still in Australia and that he would eventually return to us.

As much as I understand the context behind [his deportation], I do not understand nor approve the point of it. He has been nothing but a positive influence to the lives of his family and friends, a person who has always been supportive and caring to people in need, despite his own situation and his own needs. Of course, I do not approve of his past decisions that have led to his incarceration. However, I do feel that he has served his sentence and has dealt with the consequences of his actions. He has the right to redeem himself as both an honest citizen and a family man, and in my opinion, I feel as though he already has. Even though his decisions have stolen him away from us for many years, it’s important that it’s not the decisions of the State that take him away from us forever.

36    Apart from that letter, Joanna Tran wrote a further letter to the NCCC (Attachment 3). In that letter, apart from emphasising some of the matters she mentioned earlier, she also says this:

It’s a fact that my family is struggling, but to be honest, it’s nothing we can’t deal with. As strong and independent [as] my mother and family has been, my father is an imperative step for moving forward with our lives. There’s so much that needs to be done, and so much he’s missing out [on]. Our family feels robbed every single day he’s not with us, he was meant to already be released and return home, however, him being sent away felt unfair and crippling.

37    The appellant’s son, James Tran, also submitted a letter dated 1 May 2016. By that letter, James Tran urged the decision-maker to revoke the cancellation. Apart from that letter, James Tran wrote a further letter to the NCCC (Attachment 1) in which he said this:

Not only is it challenging [that is, the circumstance that the appellant’s wife is currently caring for her three children and herself on a single income is challenging], but upon all of this she soon has to undergo surgery for her foot, and she currently cannot afford the surgery due to a single income and no time to spare for recovery. It would be extremely beneficial for our family if my father would return home to help support my mother for the sake of her health.

… Ever since my father left, my mother hasn’t been given any financial support, nor any emotional support. Watching my mother is tremendously stressful for not only me but my two older sisters. … I want to also share my achievements with my father and have him be proud and experience it with me. It would be tremendously helpful to bring my father back to help support my mother and my two sisters.

38    The appellant’s other daughter, Jasmine Tran, also submitted a letter dated 1 May 2016 in support of the revocation submissions. Jasmine Tran says this:

… I care for my mother as I care for my father, having him with us again will allow an opportunity to be with him again and will give our mother less of a physical strain on her health, especially since we have been living off her single income for as long as my father has been detained. Our father supports us as a family and it goes without saying that we support him also. I fully believe that my father is a good man and loves us very much, I strongly feel the need to resent sending him away from us, his family. It would be incredibly [beneficial] to have him with us, supporting us again. … We need him back in our lives. It would deeply sadden me if my father was to be sent away from his three children and loving wife and I know that everyone in my family feels the same way, especially my father. This is why I urge that you reconsider cancelling his visa and deporting him back to Vietnam because, as a family, we need his support back very desperately as we have been waiting for a long time now.

39    Apart from that letter, Jasmine Tran wrote a further letter to the NCCC (Attachment 2) in which she emphasises the difficulties, financially and emotionally, the family is facing without the support of her father and the difficulty her mother is facing in working regular 11 hour shifts often six days of the week. She emphasises the negative effects upon her in seeing her mother having to endure demanding work every day with the knowledge that she needs surgery. She concludes by saying this:

The fact is, our family needs the support of my father who has been missed very dearly for the many years he has been taken away. The years that he has been taken away from us is already starting to take a toll on our family’s situation. We are in a constant loop of unmanageable setbacks to our lives and are desperate for the support of our father. My mother loves my father, and so do my siblings and I, we miss him deeply and want to see him back in our lives, normally again.

40    The appellant’s brother-in-law, Dai Dinh Le, also sent a letter dated 2 May 2016 in support of the appellant’s revocation representations.

41    On 17 January 2017, the Assistant Minister decided not to revoke the cancellation decision. The Assistant Minister’s decision is in these terms:

Mr TRAN has made representations about revocation of the visa cancellation decision in accordance with the invitation and I am not satisfied that Mr TRAN passes the character test (as defined by section 501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, I have decided not to revoke the decision to cancel Mr TRAN's Class BB subclass 155 Five Year Resident Return visa. My reasons for this decision are set out in the attached Statement of Reasons.

Statement of reasons for decision not to revoke cancellation of the visa

42    Having regard to the Assistant Minister’s consideration of the National Police Certificate (“NPC”) of 18 April 2016 which recites that the appellant was convicted in the District Court of New South Wales of “aggravated break and enter in company” and was sentenced to six years imprisonment with a non-parole period of three and a half years, the Assistant Minister was satisfied that the appellant did not pass the character test. In addition, the appellant did not contest the information in the NPC.

43    The Assistant Minister then turned to consider whether there is “another reason why the original decision should be revoked” for the purposes of s 501CA(4)(b)(ii) of the Act.

44    At para 11, the Assistant Minister says this:

In undertaking this task, I assessed all the information set out in the attachments. In particular, I considered Mr TRAN’s representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked.

45    At para 12, the Assistant Minister observes that in the representations and documents submitted by or on behalf of Mr Tran, he has articulated reasons why the original decision should be revoked which include the “negative effects upon his minor Australian citizen children and adult child; the hardship his removal will cause his wife and extended family; the mitigating circumstances of his offending; his remorse and the rehabilitation he has achieved; and the hardship he will face if the cancellation is not revoked”.

46    At paras 15 to 26, the Assistant Minister considers aspects of the representations made by the appellant and aspects of the letters submitted by the appellant’s family members. At paras 27 and 28, the Assistant Minister says this:

27.    I note that Jasmine and James will be negatively affected should Mr TRAN be removed from Australia. I therefore find that it is in the best interests of Jasmine and James that Mr TRAN’s visa cancellation is revoked, to enable them to spend time with their father and be parented and financially supported by him.

28.    Mr TRAN states that he has nine nieces/nephews and one cousin residing in Australia. It is possible that some of them are minor children. I formed the view that the best interests of Mr TRAN’s minor nieces/nephews would be served by the revocation of the cancellation of his visa. However, I considered that the negative effects upon their best interests are mitigated to some degree given it is their parent/s that have the responsibility for their daily care and control.

[emphasis added]

47    At paras 29 and 30, the Assistant Minister considers further aspects of the submissions made by the appellant’s wife and by James Tran. The material matters, at this point, that the Assistant Minister refers to are the appellant’s wife’s observation that the appellant has “appropriately served his time and does not deserve the additional treatment of his visa” and her statement that cancellation of the appellant’s visa makes “no sense to her or to anyone else in his life”. As to the material matter drawn from the statement of James Tran, the Assistant Minister notes that James says: “I do not agree with his possible deportation, as his son, but I do know that many others feel the same as I do”. Having noted those two matters, the Assistant Minister then makes these findings at paras 31 and 32 in these terms:

31.    I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Mr TRAN has breached this trust as he has been convicted of criminal offences in Australia.

32.    Given the serious nature of these offences, I conclude that the Australian community would expect that Mr TRAN should not hold a visa.

[emphasis added]

48    At paras 34 to 45, the Assistant Minister considers some of the observations drawn from Mr Tran’s representations and the letters from his family members (noted earlier in these reasons) and at paras 46 to 49, makes these findings:

46.    I find that Ms Le [the appellant’s wife] will suffer significant emotional hardship if Mr TRAN’s visa cancellation is not revoked, in addition to suffering practical and financial hardship in raising their children without Mr TRAN’s support.

47.    Mr TRAN also lists his brother, sister in law, nine nieces/nephews and one cousin residing in Australia. As well as his brother in law and his mother in law who is “more of a mother” than his own.

48.    Mr TRAN’s brother in law Mr Dai Dinh Le states that he has known Mr TRAN for over 25 years and that Mr TRAN has treated him like his own brother and has supported him and his family when in need. Mr Le states that Mr TRAN has been a loving and caring husband to his sister and a supportive Dad to his three kids. He states, “at this moment of time his wife and kids need him more than ever. I believe he is a loving and caring person and deserve[s] a chance to be with his family”.

49.    I have considered the effect of non-revocation upon Mr TRAN’s immediate family in Australia and accept that those persons would experience emotional and practical hardship if his visa cancellation is not revoked.

[emphasis in bold added]

49    At paras 50 to 54, the Assistant Minister notes some of the educational limitations suffered by the appellant and the fact that Mr Tran has lived in Australia for 26 years from the age of 15 (that is, “for most of his life”; para 50). The Assistant Minister observes that he “hold[s] the view” that the long period of residence suggests the “Australian community may afford a higher tolerance of [the appellant’s] criminal conduct”. At para 54, the Assistant Minister notes that he has considered two factors: Mr Tran’s lengthy residence in Australia; and the effect of non-revocation upon his immediate family in Australia. At paras 55-64, the Assistant Minister also considers the extent of the impediments Mr Tran will face in establishing himself and maintaining basic living standards should he be removed from Australia to “his home country of Vietnam”. The reference to “his home country of Vietnam” can, of course, only be a reference to the appellant’s country of birth or country of origin. The appellant, for 26 years since 1990, has made his home and life (and family life) in Australia. Vietnam has not been “his home country” since he left Vietnam for a refugee camp when a boy of eight years of age, in 1983.

50    As to the factors going to possible impediments, the Assistant Minister: assumes that the appellant speaks Vietnamese; finds that notwithstanding the age of the appellant’s mother (86 years), social links to her and the appellant’s brother in Vietnam (notwithstanding the brother’s criminal record) offer “some limited assistance with reintegration back into his home country [country of birth]”; notes that Vietnam offers limited social welfare support to citizens; notes Mr Tran’s statement that the thought of not seeing his wife and children again is something Mr Tran could not bear: paras 59 to 64.

51    At para 65, the Assistant Minister finds that:

… Mr TRAN’s separation from his family in Australia will cause significant emotional hardship for him. Furthermore he would undergo a period of adjustment due to his absence from Vietnam of over 30 years, as well as the practical changes to his life, such as employment and accommodation, and other familial and social networks.

[emphasis added]

52    At para 67, the Assistant Minister notes that offences such as break and enter are serious. The Assistant Minister then examines the relevant facts related to Mr Tran’s conviction on 13 September 2013.

53    As to that, the Assistant Minister notes each of the following matters. The offence occurred in December 2010 when Mr Tran broke into a house with intent to commit larceny in company with another unknown person: para 69; DNA linked to a set of gloves was sufficient to link Mr Tran individually but beyond reasonable doubt to the offence: para 69; the adult occupants of the house Mr Gu and Ms Tao confronted the intruders; Mr Gu, suffered superficial cuts to his stomach and Ms Cheh (Mr Gu’s mother) suffered a cut to the wrist: para 70; as to this physical violence, the sentencing judge observed that it was not clear “who it was who did what in the house” and “the presence of a weapon (a knife) such as was found at the scene indicates, in my view, a willingness to terrorise the occupants of the house if necessary if a confrontation occurred”: para 70; the sentencing judge also said: “although [Mr Tran’s] criminal history and the retreat of the offenders when they were confronted suggests that there was never going to be any slaughter or devastation wrought in the house, the fear of that must have been very real for those caught in the early hours of the morning as this family was”: para 71; the sentencing judge also said: “objectively this is a serious offence. It is always disturbing when criminals enter private houses in the early hours of the morning for criminal purposes” and “nothing other than a significant sentence of imprisonment is appropriate in this case”: para 72; the sentencing judge also said this: Mr Tran has “a history of burglary, break and enter and the like, but it is not a history of intentional personal violence” [emphasis added]: para 73.

54    At para 74, the Assistant Minister notes these matters:

Mr TRAN’s criminal history in Australia commenced in 1993 at age 18 with a conviction for breaking and entering with intent. Mr TRAN has a number of dishonesty offences including more than five break and enter offences, a number of drug related offences (prior to April 2002) including ‘trafficking, bring/introduce prohibited drug into place of detention and possesses prohibited drug’. Mr TRAN also has two counts of ‘assault officer in execution of duty’ (in 2002), and a range of driving related offences. Mr TRAN’s criminal history also includes breaches of judicial orders.

55    At para 75, the Assistant Minister expresses this opinion and makes the following finding:

I have formed the opinion that Mr TRAN has been a frequent offender commensurate with a ‘drug addict who committed offences in order to fund his addiction’. I find that the sentences Mr TRAN received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious. I consider that the cumulative effect of his offending conduct has imposed a significant cost upon the Australian community, through the expenditure of police and court resources.

[emphasis added]

56    Against that background, the Assistant Minister considered the risk to the Australian community posed by Mr Tran’s presence in the community. As to that, the Assistant Minister began that assessment by taking into account “mitigating factors”. As to that, the Assistant Minister notes each of the following matters: Mr Tran was born into rural poverty in North Vietnam; he fled Vietnam when he was eight with his 15 year old brother and spent the next eight years in a Hong Kong refugee camp receiving only food and shelter, no schooling and was taught very little basic English: paras 78 and 79; when Mr Tran arrived in Australia aged 15 or 16, he felt alone and “still a child, with no education and no one to guide me” particularly as his older brother was either 22 or 23 and was “going his own way”: para 78; although Mr Tran does not want to make excuses for his conduct, he wanted to explain his experiences and now “understand[s] the meaning of mental health and the effects of trauma [and] I see why I turned to drugs to cope with those years”: para 79; the sentencing remarks of 2013 quoted at [21] of these reasons: para 80; sentencing remarks from 2004 that state that Mr Tran began injecting heroin in 2001 having previously smoked heroin; Mr Tran funded his habit through illegal activities: para 81; Mr Tran is “contrite” about his past conduct and its effect upon his victims and his own family: para 82; Mr Tran wants to make “recompense”: para 83.

57    The Assistant Minister also notes the 2013 remarks of the sentencing judge that a period of four and a half years has elapsed from Mr Tran’s release from custody and the date of the 2013 offence, and that in that period, a parole report “shows that he responded well to supervision [while on parole]”: para 84.

58    The Assistant Minister notes that Mr Tran states that he has been drug-free since 2004 and finds that Mr Tran has “sought treatment for his drug addiction”; para 85.

59    The Assistant Minister notes these matters at paras 86 to 89 as to Mr Tran’s conduct since 2006; his work to address his drug addiction; support to train inmates; and coursework education he has undertaken:

86.    A 2006 pre-sentence report states that Mr TRAN worked consistently toward addressing his drug addiction issue by way of participation in Drug and Alcohol programs. The report stated that Mr TRAN’s prison file contained ‘favourable work performance reports, commenting positively on his good work attitude, pride in his workmanship, high productivity and his willingness to train other inmates’.

87.    I note that a 2007 pre-release report states that Mr TRAN has not had any breaches since his release in May 2006 and that he had been ‘a model parolee reporting as required and there has not been any negative illicit drug testing reports’.

88.    Mr TRAN states that he has studied many courses which have helped him to be a better husband, father and responsible man. He states that he ‘wants one more chance to give back to them and the community I betrayed’.

89.    Mr TRAN submits that he has completed the following courses: OHS policies and procedures, maintain chainsaws, cut materials with a handheld chainsaw, trim and cut felled trees, use hygienic practices for food safety, install, maintain and repair fencing, perform routine manual metal arc welding, perform routine gas metal arc welding, managing emotion program and National Work Health & Safety for general construction training (white card). I also note that Mr TRAN worked while in prison and was able [to] regularly send money to his family.

60    The Assistant Minister notes the pleas of Mr Tran concerning his commitment to reform his conduct and life, the opportunity to support his family and make them proud of him, the opportunity to re-engage with the workforce and be able to see his children become young adults, marry, have children and enjoy that which follows: paras 90-94. The Assistant Minister also briefly notes two matters drawn from Ms Le’s letters.

61    The relevant conclusions and findings on the issue of the risk posed to the Australian community by Mr Tran’s presence in the community are set out at paras 97-99 as follows:

97.    In relation to Mr TRAN’s risk of recidivism, I have considered his lack of respect for Australian laws. In April 2007 Mr TRAN was sent notice of a decision not to cancel his visa and a warning that if he engaged in future offending a visa cancellation may be re-considered. He sent back a signed acknowledgement dated 23 June 2007. He states, I know you warned me ‘I was stupid, I didn’t understand the seriousness of the situation’.

98.    I take into account Mr TRAN’s remorse and progress towards rehabilitation, the significant support he has from his family, his desire to work upon his release, the salutary effects of his imprisonment and visa cancellation. Notwithstanding this, I also note his history of drug addiction, and that his rehabilitation has not been tested in the community. I find there is a likelihood that Mr TRAN will re-offend.

99.    I find that Mr TRAN’s past offending with dishonesty, drug and driving offences have the potential to result in significant harm to the community. His offending has had a significant cost to the community through policing, legal, court and detention costs. Should Mr TRAN re-offend with similar property offences, the financial and psychological impact of his offending will continue to negatively impact the Australian community.

[emphasis added]

62    The decisive factors on this issue of risk are these.

63    First, Mr Tran exhibits a lack of respect for Australian laws.

64    Second, Mr Tran was warned in April 2007 that should he engage in further offending a visa cancellation may be reconsidered and he acknowledged that warning.

65    Third, notwithstanding the collection of matters in the first sentence of para 98 quoted above, the “history” of Mr Tran’s drug addiction and the circumstance that his “rehabilitation” has not been “tested” in the community gives rise to a “likelihood” that Mr Tran “will re-offend”.

66    Fourth, Mr Tran’s past offending with elements of “dishonesty” and “drug offences” and “driving offences” have the “potential” to result in “significant harm” to the community.

67    Fifth, his offending has imposed “significant cost” on the community (policing, legal and court costs).

68    Sixth, should Mr Tran re-offend in relation to similar property offences (which must be a reference to the break and enter offences), the financial and psychological impact of that offending will continue to “negatively impact the Australian community”.

69    As to the statutory question under s 501CA(4) of whether the Assistant Minister “is satisfied” (or has been able to reach a “state of satisfaction”) that there is “another reason” why the original decision should be revoked (recognising that the Assistant Minister could clearly not be satisfied that the appellant passes the statutory character test), the Assistant Minister recites at para 100 that he has “considered”, relevantly for present purposes, “an assessment” of whether he is satisfied that there is another reason for revocation and has considered “all evidence available to me, including evidence provided by, or on behalf of, Mr Tran”. It is not clear whether the reference to “an assessment” is a reference to the Assistant Minister’s own evaluative processes or a reference to an assessment document prepared by a public sector officer (such as the Case Officer) being the “Statement of Reasons for Decision” instrument. It seems to be a reference to the Statement of Reasons for Decision.

70    In any event, at para 103, the Assistant Minister says that he has given “primary consideration to the best interests of Mr Tran’s children and [has] found that their best interests would be best served by the revocation of the mandatory visa cancellation decision”. At para 104, the Assistant Minister says that he has considered “the consequences of my decision for his other family members”. The Assistant Minister then returns to the finding that the Australian community “could” be exposed to “harm” (which is a reference to, although expressed differently, the “potential” for “significant harm” mentioned at para 99), should Mr Tran “re-offend in a similar fashion”. That phrase seems to be a reference to the elements of the offending reflected in the break and enter offence sentenced on 13 September 2013 and at para 105 the Assistant Minister says: “I could not rule out the possibility of further offending by Mr Tran”.

71    Importantly, the Assistant Minister says this at paras 106 and 107:

106.    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 TRAN represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other, minor family members, as a primary consideration, his residence in Australia for over 26 years, the significant hardship Mr TRAN and his family will endure in the event the original decision is not revoked.

107.    Having given full consideration to all these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision to cancel Mr TRAN’s visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel Mr TRAN’s Class BB Subclass 155 Five Year Resident Return visa.

[emphasis added]

72    The statement of reasons for decision was prepared by a public sector officer for the consideration of the Assistant Minister. The document recites three possible “revocation outcomes” and requests the Assistant Minister to: “(Please circle the option you select)”. Option (c), (non-revocation), is “circled”. The front sheet is signed and dated 17/1/17 and so too is the end sheet signifying the Assistant Minister’s consideration of the reasons document and his Option (c) selection: see Schedule 1 (there is no “sensitive personal” information recited in these two sheets). By letter dated 17 January 2017, the Case Officer advised the appellant of the Assistant Minister’s decision not to revoke the cancellation decision.

Application for judicial review

73    On 3 February 2017, the appellant filed an application for judicial review in the Federal Circuit Court of Australia. On 17 February 2017, the proceedings were transferred to the Federal Court of Australia.

74    The appellant’s grounds of review were:

(a)    I was granted Parole and states I am not a risk of re-offending and threat to the Australian community.

(b)    I have lived in Australia for 27 years. My entire family resides in Australia.

(c)    I have done numerous courses in my rehabilitation.

75    The appellant was not legally represented before the primary judge.

76    At the hearing before the primary judge on 17 May 2017, the appellant did not rely on written submissions except for a letter of 26 April 2017 which advanced reasons in support of a “possible revocation” of the cancellation decision. The appellant asserted in that letter that he was a “changed man” and expressed a desire to atone for his behaviour. That letter is not part of the appeal papers. The primary judge describes the content of it in this way at [16]:

16.    [The appellant] expressed his desire to provide for his wife and children, and his fear that his wife and children would be the ones to pay for his actions. He said that there is nothing for him, or his family, in Vietnam. He said that he has a better understanding of mental health and the effects of trauma, and why he has turned to drugs to help cope with his inner demons. He said he has not touched drugs for more than 15 years, and has used his time in prison and detention centres to better himself, working towards a number of qualifications in horticulture, agriculture, tourism, hospitality, automotive repair, retail, Occupational Health and Safety, food handling and anger management. The letter also annexed a number of statements of attainment and transcripts of academic record issued by the TAFE NSW in respect of the [appellant].

77    The primary judge then referred to the appellant’s oral submissions, made with the assistance of an interpreter, at the hearing. These oral submissions were in substantially the same form as the letter of 26 April 2017.

78    At [18], the primary judge observes that “the applicant has not identified any jurisdictional error in the decision of the Parliamentary Secretary and his case does not rise higher than inviting the Court to consider the merits of revoking the cancellation of his visa”. Plainly enough, this particular appellant, having regard to his background life circumstances, was not capable of framing coherent grounds of challenge to the non-revocation decision under challenge. However, as to the three grounds of review, the primary judge made these observations at [20] to [22]:

20    By ground 1, the applicant states that he has been “granted parole” and is not a risk of re-offending or a threat to the Australian community. This ground must fail. It does not more than invite consideration of the merits of the decision. It may also be observed that the applicant’s representations to the Parliamentary Secretary did not include any submission raising the issue of parole as a matter to be considered. In those circumstances it is to be seriously doubted that the issue of parole was of any great significance to the Parliamentary Secretary’s decision warranting explicit reference, especially given the different legislative and factual context in which any parole decision would have been made.

21    By ground 2, the applicant makes the assertion that he has lived in Australia for 27 years and that his entire family resides in Australia. This ground must also fail. It also does no more than invite consideration of the merits of the decision. Moreover, there can be no suggestion that the Parliamentary Secretary failed to take these matters into account, given his detailed consideration of the applicant’s ties to Australia and the express statement at [54] that the he had “considered [the applicant’s] lengthy residence in Australia for some 26 years and the effect of non-revocation upon his immediate family”.

22    By ground 3, the applicant makes the assertion that he has done numerous courses in his rehabilitation. However, there can be no suggestion that these matters were not taken into account, given that the Parliamentary Secretary acknowledged the applicant’s participation of those courses at [89] of his reasons. It follows that this ground must also fail.

[emphasis in original]

Appeal

79    On 3 April 2018, the appellant filed a Notice of Appeal against the whole of the judgment of the primary judge.

80    The grounds of appeal are:

Grounds of appeal

1.    The learned primary judge erred in finding that the Assistant Minister for Immigration and Border Protection (Assistant Minister) failed to give proper consideration to certain matters identified in the statement of reasons as steps in the decision making process.

Particulars

(a)    The learned primary judge did not conclude that the Assistant Minister was “required” to make “an assessment as to whether what was put forward had factual merit” after the case Falzon S31/2017 was unsuccessful.

(b)    The learned primary judge did not identify a range of claims (Claims) that the Assistant Minister was required to take into account after the amended application was filed on 12th February 2018.

(c)    The learned primary judge should have found that, on evidence, it could be established that the Assistant Minister had failed to give proper consideration to the Claims. Indeed, the learned primary judge should have found that the Assistant Minister had not sufficiently addressed those Claims.

2.    The learned primary judge erred in finding that the Assistant Minister’s assessment pursuant to s 501 CA(4)(b)(ii) of the Migration Act 1958 (Cth) misapplied.

Particulars

(a)    The particulars to Ground 1 are repeated and relied upon.

3.    The learned primary judge erred in concluding that the [Assistant] Minister’s reasoning process was fundamentally flawed by reason of jurisdictional error.

Particulars

(a)    The grounds of the amended application.

(b)    Further, the learned primary judge erred in finding that the [Assistant Minister’s] assessment as to the potential for any further offending by the appellant to cause physical harm to members of the [Australian] community was an assessment without any rational foundation.

81    The appellant seeks orders for the grant of the constitutional writs in relation to the Assistant Minister’s non-revocation decision (although the relief claimed by the appellant acting on his own behalf is not framed appropriately).

82    As to the grounds of appeal, there are essentially two contentions.

83    First, the Assistant Minister “failed to give proper consideration” to the claims of the appellant set out in the appellant’s “representations” with the result that the primary judge ought to have found that those matters were not “sufficiently addressed” by the Assistant Minister.

84    Second, the Assistant Minister’s assessment that the “potential” for further offending by the appellant to cause “physical harm” to members of the Australian community was an assessment “without any rational foundation”. However, I will return to the grounds of appeal later in these reasons.

85    It should be noted that the primary judge, on the application of the appellant, adjourned the hearing of the primary proceeding pending the determination by the High Court in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 (“Falzon”) of the constitutional validity of s 501(3A) pursuant to which the Minister was bound to cancel the appellant’s visa. In view of that decision, s 501(3A) is a valid law of the Commonwealth.

86    On 3 April 2018, the appellant filed an affidavit (the “first affidavit”) affirmed on 29 March 2018 in which he seems to assert a number of things (although the language of it is quite difficult). First, although the appellant had challenged the validity of the Minister’s cancellation of his visa on the basis ultimately rejected in Falzon, this was not the “entire application” and other claims of jurisdictional error were made. Second, the Minister’s decision must be quashed because the decision fails to “expose a path of reasoning” and this observation is probably intended to be a contended claim of error on the part of the primary judge (as framed by whoever may have been helping the appellant with this affidavit). Third, the appellant, being “without liberty and unrepresented” was not referred to pro bono legal assistance after previous pro bono counsel withdrew after the Falzon decision, without notice or warning. Fourth, the appellant seems to assert that he was not afforded procedural fairness by the primary judge.

87    The appellant also caused two other affidavits to be filed. The first of these was filed on 16 July 2018 (the “second affidavit”) and the second was filed on 7 August 2018 (the “third affidavit”).

88    The second affidavit recites a narrative and makes various assertions in the nature of submissions. At the hearing of the appeal, the Court enquired of the appellant as to whether he wished to rely upon the second affidavit. This enquiry was made because parts of the document do not appear to relate to the appellant (for example, the affidavit refers to the applicant being separated from his partner; which is not true of Mr Tran) and do not comply with the orders made by a Registrar of the Court with respect to the filing of submissions. The appellant ultimately elected not to rely on the second affidavit and for the Court to not consider any part of it in addressing his contentions on appeal: T, p 31, lns 30-39.

89    I will return to the relevance of the third affidavit shortly.

Adjournment of the hearing of the appeal

90    The hearing of this appeal was listed for 29 August 2018. On 7 August 2018, an interlocutory application was filed by the appellant to adjourn the hearing for three months.

91    In support of his adjournment application, the appellant filed the third affidavit which provided a “personal statement.” That personal statement was:

PERSONAL STATEMENT    Annexure “[AB1”, DOCUMENT NUMBER 2

I, Ba Giang Tran, am requesting from Honourable Justice an adjournment of my case due for hearing on the 29 of August.

I am requesting it because I am self-represented and I need time to prepare my case.

I have been returned from Christmas Island back to Sydney for medical reasons to see my psychiatrist and psychologist to help me deal with severe anxiety and stress.

I estimate a three month adjournment would be sufficient.

92    The adjournment application was listed before the Court (single judge) on 16 August 2018. Orders were made adjourning the hearing of the interlocutory application to the date of the appeal on 29 August 2018. Amongst other things, the appellant said he would use the adjournment in order to seek legal advice. The Court was told the appellant had approached a lawyer. At the hearing of the appeal on 29 August 2018, the Court asked the appellant to make submissions, through his interpreter, concerning the grounds for the adjournment.

93    The appellant said that he was unable to secure legal assistance and that he had attended a psychologist in the Villawood Detention Centre, Ms Emma McMillan. At the hearing, the appellant produced a clinical record (marked as “Exhibit 1”) concerning a mental health consultation held on 23 August 2018 with the appellant. The document recites a short background narrative and aspects of the appellant’s “current functioning”. The report suggests that the appellant was trying to “maintain positive thinking”; “turning to the family for support”; and seeking support from the “mental health team”. The report observes that the risk of “self-harm” is “low”.

94    Ms Rachel Francois, counsel for the Minister, made submissions with respect to the adjournment application and explained that whilst it is understandable that the appellant is anxious about the appeal, that is not a proper basis for the adjournment. The Minister submitted that the decisive factor telling against an adjournment is that further time would not assist the appellant as the grounds of appeal are “very weak and we say cannot succeed”. The appellant was invited by the Court to explain what he contends to be the central complaint he makes about the non-revocation decision in support of his appeal. The appellant relied upon the first affidavit and said that he requires legal assistance to “tell me what I need to do in this case”. The Court declined to adjourn the hearing and indicated that it would provide reasons for refusing the adjournment, in the final reasons for judgment. These are those reasons.

95    Central to considerations of whether a proceeding is to be adjourned or not is whether an adjournment is in the “interests of justice”, in the sense that the just determination of a matter requires a party to have a sufficient opportunity to prepare for and present their case. Prejudice to the other side is also an important consideration. Because the appellant could not point to steps he wished to take in order to further prosecute his appeal and nor could he explain how matters had changed such that his earlier unsuccessful attempts to secure legal representation would now be successful, it would make little difference to the prosecution of the notice of appeal as drafted, for the appellant to have further time to prepare his case.

96    Further, at the hearing of the appeal, the Court observed that the appellant’s “facility with the English language is quite strong – it’s commendably strong” (T, p 10, lns 16-19). The appellant then went on to accept that his grasp of English is sufficient to enable him to read and understand the case put against him concerning the Assistant Minister’s decision; the Assistant Minister’s evaluation of the appellant’s criminal record and the circumstances relating to the appellant’s past conduct. Indeed, the appellant, following these observations, conducted the appeal without the assistance of the interpreter and with clarity. Accordingly, the Court is not (and was not) satisfied that the appeal should be adjourned.

The relevant provisions of the Act

97    The decision not to revoke the cancellation decision was made on 17 January 2017. Section 501(3A) of the Act casts a mandatory obligation on the Minister to cancel a visa granted to a person if the Minister is satisfied that the person does not pass the character test because he or she has a “substantial criminal record” (s 501(6)(a)), which notion includes sentence to a term of imprisonment of 12 months or more (s 501(7)(c)), and the person is serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory: s 501(3A)(b).

98    Section 501(5) has the effect that the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under s  501(3A).

99    The statutory scheme of s 501(3A) and s 501CA(3) and (4) requires the Minister to give the person whose visa has been cancelled under s 501(3A), written notice that sets out the original cancellation decision, particulars of the relevant information (as defined), and to invite the person to “make representations” to the Minister within the period and in the manner determined by the Regulations, “about revocation of the original decision”: s 501CA(3).

100    The discretionary power to revoke the mandatory visa cancellation decision is engaged if the person makes representations in accordance with the invitation (s 501CA(4)(a)) and the Minister “is satisfied”, relevantly here, that “there is another reason why the original decision should be revoked”: s 501CA(4)(b)(ii).

101    In order to determine whether the Minister can or cannot reach a state of satisfaction about that matter, the Minister must necessarily engage with the “representations” made by the person (and in this case, which is uncontroversial, also engage with representations made by persons on behalf of the appellant), in response to the invitation to do so. The content of the representations about revocation of the original decision, properly made in response to an “invitation”, gives content to the Minister’s obligation to take factors (claims and assertions of fact) into account in determining whether the Minister can reach the relevant state of satisfaction by, for example, considering matters said by the affected person to be relevant to another reason why the cancellation decision should be revoked (as put to the Minister in the representations), and, for example, by not taking into account irrelevant matters.

102    Two things should be noted about this aspect of the statutory scheme.

103    First, the discretionary power to revoke a mandatory cancellation decision (predicated upon the giving of written notice and particulars of relevant information; inviting the person to make representations about revocation; and representations having been made), provides the person affected by the original cancellation decision with a measure of natural justice otherwise excluded, in relation to cancellation, by s 501(5) of the Act.

104    Second, s 501CA(4) is framed in terms of whether the Minister “is satisfied” that there is another reason why the mandatory original decision should be revoked, not in terms of an obligation “to consider” the representations.

105    Nevertheless, in determining whether the Minister can or cannot be so satisfied, the Minister must engage with the content of the representations.

106    As to the statutory provisions, s 501 of the Act relevantly provides:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:    Character test is defined by subsection (6).

 (2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

Decision of Minister—natural justice does not apply

 (3)    The Minister may:

   (a)    refuse to grant a visa to a person; or

   (b)    cancel a visa that has been granted to a person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

  (3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

  (3B)    Subsection (3A) does not limit subsections (2) and (3).

(4)    The power under subsection (3) may only be exercised by the Minister personally.

(5)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Definitions

(12)    In this section:

court includes a court martial or similar military tribunal.

imprisonment includes any form of punitive detention in a facility or institution.

sentence includes any form of determination of the punishment for an offence.

Note 1:    Visa is defined by section 5 and includes, but is not limited to, a protection visa.

Note 2:    For notification of decisions under subsection (1) or (2), see section 501G.

Note 3:    For notification of decisions under subsection (3), see section 501C.

107    Section 501CA of the Act provides:

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.

108    There is no dispute that the Assistant Minister has complied with the statutory procedure in s 501CA(3). Nor is it contested that by reason of the sentence imposed on 21 June 2013 concerning the 10 December 2010 break and enter offence, the appellant did not pass the character test due to the operation of s 501(6)(a) and s 501(7)(c).

General principles

109    It is convenient at this point to identify some matters of principle.

110    The statutory discretionary power conferred on the Minister by s 501CA(4), like any statutory discretionary power, is subject to a presumption of law that the legislature intends the power to be exercised reasonably: Minister v Immigration and Citizenship v Li (2013) 249 CLR 332 at 362 [63], Hayne, Kiefel and Bell JJ; Kruger v The Commonwealth (1997) 190 CLR 1 at 36, Brennan CJ.

111    In the case of the discretionary power conferred on the Minister by s 501CA(4), the exercise of the power rests on the Minister being satisfied of the relevant statutory matter: that there is another reason why the cancellation decision should be revoked. Because of the relationship between the invitation to make representations about revocation of the original decision, the making of representations about that topic and a conferral of discretionary power engaging a question of whether the Minister is satisfied that another reason subsists for revocation of the cancellation decision, the Minister has, as a matter of construction of s 501CA(3) and s 501CA(4), read together, a corresponding obligation to engage with representations that advance a contended reason or reasons for revocation.

112    Sometimes, the scope of such a statutory obligation is described as an obligation to give “proper, genuine and realistic consideration” to the relevant subject matter and that phrase is often used to give content to a textual obligation “to consider” relevant statutory subject matter although the phrase actually owes its origin to the particular issue in and circumstances of Khan v Minister for Immigration and Ethnic Affairs (1987)14 ALD 291 at 292, Gummow J.

113    Section 501CA(4)(b)(ii) does not adopt the language of “consider” as a form of expression of an obligation on the part of the Minister to engage with representations made pursuant to the s 501CA(3)(b) invitation. There can be little doubt, however, that the Minister in deciding whether he or she can reach a state of satisfaction about whether there is another reason why the mandatory cancellation decision should be revoked, must, as a matter of substance, have regard to the representations. That obligation requires the Minister to have regard to the representations as a whole and where particular claims are made, to address those claims. Where particular findings are made or emphasis is given by the Minister to particular matters which, as a matter of substance, can be seen to be significant and thus material in the exercise of the discretion, those matters must have a foundation in fact. If those matters are expressions of opinion or postulations about future events, those opinions or postulations must also have a proper basis to support them otherwise the opinion or postulation may just be arbitrary or capricious or mere speculation.

114    Sometimes, the scope of the decision-maker’s obligation to engage with the representations is described in the authorities as an obligation on the part of the Minister (or the Minister’s delegate) to “apply his or her mind to the issues” raised by the representations or to “bring his or her attention to all material facts” raised by the representations or to undertake “an active intellectual exercise” in addressing the representations. As to the last phrase, its origin, as an explanation of notions inherent in the word “consider” owe their origin to Tickner v Chapman (1995) 57 FCR 451, Black CJ at 462.

115    The task of identifying the scope of the decision-maker’s statutory obligation always begins and ends with the language of the statute in the context of the statutory purpose.

116    Many of the descriptive phrases thought to give explanatory content to the text of a statutory duty or obligation can unhelpfully cause the statutory text to slip its moorings and enter upon the high seas where the forensic search for a “proper, genuine and realistic consideration” of a particular subject matter, or consideration of just how “actively and intellectually engaged” the decision-maker really was, improperly and impermissibly puts a Ch III Court into the stormy waters of the merits of decision-making. As to these dangers, see Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at 421 [51] Gageler J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-37, Brennan J; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30], French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Swift v SAS Trustee Corporation (2010) 6 ASTLR 339, Basten JA (Allsop P agreeing) at [45]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, Griffiths, White and Bromwich JJ at [32]-[36].

117    In Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216, Rares and Robertson JJ said this at [45] about the content of the obligation arising under s 501CA(4) having regard to s 501CA(3):

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 … 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.

[emphasis added]

118    The reference in that passage to an assessment “in a qualitative way” of whether the decision-maker has, as a matter of substance rather than form, actually had regard to the representations made in response to the invitation to do so, is to be understood as an examination of the legality of the exercise of the power: Craig v South Australia (1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ at 351 [82]; Re Patterson; Ex parte Taylor (2001) 207 CLR 391, Gaudron J at 419 [82].

119    If the decision-maker has failed to have regard to the representations in the sense described at [113] of these reasons, the decision-maker has failed to exercise the power for the statutory purpose.

120    Plainly enough, the reference by their Honours to an assessment “in a qualitative way” is not intended to invite an examination of the merits of the decision but rather an examination of whether the Minister has had regard to the representations in the way required by the statutory provisions (as described at [113] of these reasons) in the exercise of the statutory power. The scope of the “task” arising under s 501CA(4) was put this way in Omar v Minister for Home Affairs [2019] FCA 279 at [46], Mortimer J: “... the task of considering whether there was “another reason” to revoke the visa cancellation required consideration of all other “reasons” put forward in the representations made by the applicants’ representatives (or at least, all those seriously and substantively advanced)” [emphasis added].

121    Representations made in response to an invitation “as a whole constitute a mandatory relevant consideration under s 501CA(4)”: Goundar v Minister for Immigration and Border Protection (2016) ALD 123, Robertson J at [56]; Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198, Jagot, Rangiah and Banks-Smith JJ at [47]; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216, Rares and Robertson JJ at [49] adopting the observations in DRP17 at [47]; Minister for Home Affairs v Buadromo (2018) 362 ALR 48, Besanko, Barker and Bromwich JJ at [41].

122    However, in Goundar, Robertson J did not accept that “any particular statement” contained in the representations should be characterised as a mandatory relevant consideration. Robertson J’ view was adopted by Full Courts in Buadromo at [41], DRP17 at [47] and Maioha at [49].

123    The statutory reason why that is so is this. Section 501CA(3)(b) obliges the Minister to invite the person to make representations “about revocation” of the cancellation decision and s 501CA(4) casts a corresponding obligation on the Minister, in the exercise of the discretionary power to revoke or not revoke cancellation, to engage with those representations “about” revocation so as to be satisfied (or not) whether there is “another reason” why the original decision should be revoked. The statute suggests engagement with the “representations”, “about” revocation going to a “reason or reasons”, not every individual statement, line by line, set out in the representations although, plainly enough, the representations must be meaningfully read and considered as a whole (or, put another way, see [113] of these reasons). It may be, however, that in the relevant case one or two sentences in the representations may contain highly material information said to support “another reason” for revocation in which event, the repository of the power would need to engage, as a matter of substance, with that information in those sentences. The extent to which the repository of the power must engage with the information depends upon the centrality and significance of the particular issue identified in the representations as the basis for a claim of another reason for revocation. Alternatively, if the repository exercises the power having regard to particular factors or considerations, the repository must have regard to information contained in the representations relevant to those matters. The matters discussed at [111] to [123] constitute the statutory text, context and purpose for the consideration of the “legality” of the Assistant Minister’s non-revocation decision. Although Charlesworth and O’Callaghan JJ place emphasis upon whether the ground of unreasonableness is engaged (relying at [173] of these reasons on observations in Muggeridge v Minister for Immigration and Border Protection (2017) 225 FCR 81 of Charlesworth J at [32] to [36]; Flick J agreeing at [1]; Perry J agreeing at [2]), the question of whether the non-revocation decision lacks legality, in the sense that the Assistant Minister failed to act within the limits of the statutory scope of the decision-making power sought to be exercised, is, in my respectful opinion, not a function of unreasonableness but rather a function of the particular considerations at [111] and [113] of these reasons, and contextually, [111] to [123] inclusive. These paragraphs concern the scope of the statutory obligation to be discharged in exercising the discretionary power in question. The relevant body of principle engages the considerations at [29] to [31] in Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1, Kiefel CJ, Gageler and Keane JJ. The matters the Assistant Minister failed to engage upon in the appellant’s response were material and thus the breach was a material breach.

Consideration of the grounds of appeal

124    The grounds of appeal are set out at [80] of these reasons. Those grounds are, as described at [86] of these reasons, supplemented by aspects of the first affidavit. However, there are two principal matters upon which the appellant relies although the grounds are largely unclear and, no doubt, influenced by the help the appellant obtained from someone assisting him.

125    The first essential ground is that the Assistant Minister failed to give proper consideration to the claims set out in the appellant’s representations (and related material) with the result that the Assistant Minister constructively failed to exercise the power, and the primary judge ought to have so found.

126    The second essential ground is that the assessment made by the Assistant Minister that the potential for further offending by the appellant causing physical harm to members of the Australian community was an assessment without any rational foundation and thus the exercise of the power miscarried, as unreasonable.

127    Although the second ground relies upon unreasonableness as a separate ground of jurisdictional error in the exercise of the power not to revoke, both grounds overlap to the extent that the appellant contends the Assistant Minister, in making the assessment that the appellant’s “likelihood” of further offending has the potential to cause “significant harm” to the community (paras 98 and 99 of the statement of reasons), failed to have regard to an important claim made by the appellant in his representations. That claim was that the appellant had been drug-free since 2004 (a period of over 12 years prior to the non-revocation decision on 17 January 2017). It is necessary to examine the centrality of that matter or claim to the legality of the exercise of the power not to revoke.

128    At para 98 of the reasons, the Assistant Minister says that notwithstanding Mr Tran’s progress towards rehabilitation, the significant support he has from his family, his desire to work upon release and the salutary effects of his imprisonment, two particular matters are to be noted: the “history” of the appellant’s drug addiction and the notion that the appellant’s rehabilitation has not been tested in the community. Those two matters are immediately followed by a finding that there is a likelihood that Mr Tran will re-offend. The Assistant Minister also finds that Mr Tran’s past offending involving dishonesty, drug and driving offences, has the potential to result in significant harm to the community. At para 105, the Assistant Minister says that the Australian community could be exposed to harm should Mr Tran re-offend in a similar fashion. The Assistant Minister observes that he could not rule out the possibility of further offending by Mr Tran.

129    As to the history of the appellant’s drug offences, the National Police Certificate which was before the Assistant Minister reveals these matters. On 6 June 1996, the appellant was convicted of possession of a prohibited drug and fined $300.00. On 9 October 1996, the appellant was convicted of trafficking in heroin with a sentence of periodic detention of three months. On 1 November 2000, the appellant was convicted of introducing a prohibited drug into a place of detention with a sentence of 21 days imprisonment. On 12 April 2001, he was convicted of a similar offence and seems to have entered into a bond for a period of eighteen months. On 17 April 2002, he was convicted of being in possession of a prohibited drug. The sentence is not entirely clear. On 17 April 2002, he was also convicted of certain break and enter offences.

130    In Mr Tran’s representations of 12 May 2016, he says that his early convictions were drug related and these occurred “to feed my then drug dependency”. He asserts in his representations that he has been drug-free since 2004. He also says that in his early days in Australia he was a drug user and this resulted in his having committed crimes to “feed my habit”. In this context, he again asserts that he is “now drug free and [has] been since 2004”.

131    On 27 August 2004, the appellant was sentenced in relation to five separate offences contained on two indictments. The first indictment concerned events of 22 November 2000. The appellant pleaded guilty to having housebreaking implements in his possession. He also pleaded guilty to “driving a stolen conveyance [car]”. The other indictment alleged offences in the alternative. The appellant pleaded guilty to three offences of aggravated break, enter and steal on 26 January 2001, 31 January 2001 and 6 December 2001. In each case, the circumstance of aggravation was that there were people in the dwelling house at the time. As to the offence on 31 January 2001, a 68 year old woman in the house was woken by the appellant’s activities and when she attempted to apprehend the appellant, he took hold of her wrists and kicked her in the right ankle before fleeing. As to the relationship between these offences and the appellant’s then drug addiction, Judge Berman in this District Court of New South Wales said this:

[T]he offender does tell me [in 27 August 2004] that he has been able to overcome the drug addiction which led to him committing the offences I have shortly outlined. That is also backed up by urinalysis conducted whilst he is in custody which have revealed that he is no longer using drugs. These offences were committed at a time when the offender was intravenously injecting heroin. As is depressingly common, he was a drug addict who committed offences in order to fund his addiction. …

He commenced injecting heroin in 2001 having previously only smoked it. It was that decision to start injecting drugs which led inevitably to him committing the present offences. He had an expensive habit and the only way he could obtain money to fund that habit was through illegal activities.

Since going into jail on this occasion, as I have mentioned, the offender has given up using drugs so there is some hope for the future. I cannot say that his rehabilitation prospects are good but, as I say, there is some hope.

…

As I have said, I cannot find that he has good prospects of rehabilitation but I am satisfied that he is sorry for what he has done and recognises, belatedly it seems, the effect that his offences would have had on the householders. What stopped him recognising it before was clearly his drug addiction.

132    In relation to those offences, the appellant was sentenced to a period of imprisonment, the non-parole period of which concluded on 2 May 2006.

133    Approximately four and a half years later on 10 December 2010, the appellant committed the break and enter offence which was the subject of the sentencing remarks of 13 September 2013. The history of the appellant’s criminal offences does not reveal any drug offence in those four and a half years and, in the course of the sentencing observations, Judge Woods observed that in the period of four and a half years since release from custody concerning those earlier offences, the appellant “responded well to supervision” according to the Probation and Parole Report.

134    As to the matters noted by the Assistant Minister in the reasons about the appellant’s criminal history, the Assistant Minister notes that Mr Tran’s criminal history commenced in Australia in 1993 at the age of 18 with a conviction for breaking and entering. He notes that there were also a number of dishonesty offences including more than five break and enter offences and there were “a number of drug related offences (prior to April 2002) including trafficking, bring/introduce prohibited drug into place of detention and possess prohibited drug” [emphasis added in bold]: para 74. I have emphasised the Minister’s observation that the drug offences occurred prior to April 2002, a very considerable period of time before the making of the revocation decision on 17 January 2017.

135    At para 75, the Assistant Minister observes that Mr Tran has been a frequent offender “commensurate” with a “drug addict who committed offences in order to fund his addiction”. Thus, the Assistant Minister recognises that the appellant’s offending directly corresponds in size or degree with his drug addiction.

136    Thus, an important question to be addressed by the repository of the power, expressly raised by the appellant’s representations and central to the Assistant Minister’s assessment of the potential for harm to the Australian community (a matter shown to be central to the exercise of the discretion), is whether the circumstance or claim of the appellant of having been drug-free since 2004 (if it be accepted) is correct. The question for the Assistant Minister is whether he can be satisfied about the accuracy of that claim.

137    The only present question for the Court on this topic is whether the appellant’s claim to have been drug-free since 2004 has been considered (in the sense described earlier) in reaching the conclusion that “past drug offending” relevantly informs a likelihood of current offending and thus informs the potential for harm to the community should the cancellation decision be revoked. This question is not examined here to determine whether the Assistant Minister “got it right” if the contention of the appellant was considered. Plainly enough, that would be to impermissibly enter upon the high seas of merits analysis.

138    One thing is clear, however. Simply “recognising” or “noting” a claim shown to be material to the exercise of the power is not sufficient to bear the characterisation of having been considered in the sense described at [113] of these reasons especially when the consequences of the exercise of the power to not revoke is so serious as the Assistant Minister recognises at paras 27, 28, 46, 49, 65 and 103 of the statement of reasons.

139    At para 81, the Assistant Minister notes the observation of Judge Berman on 27 August 2004 that the appellant began injecting heroin in 2001 having previously smoked heroin. However, the other observations of Judge Berman relevant to the appellant’s claim to have ceased or overcome drug use in 2004 are not noted: [131] of these reasons.

140    At para 86, the Assistant Minister refers to a “Pre Release Report” of the New South Wales Probation and Parole Service of 21 February 2006 and notes that the appellant worked consistently “towards addressing his drug addiction issue by way of participation in drug and alcohol programs”. That report, however, suggests a point in time in 2004 when the appellant’s drug use ceased. It says this:

Mr Tran recounted that he commenced recreational use of heroin at about twenty years of age, which developed into a daily intravenous habit of approximately $200. The offender’s claim to have last used heroin when on bail (prior to his custodial sentence) was challenged, as evidenced by a urinalysis screening resulting in the detection of morphine in September 2004. Mr Tran maintained that he has not used drugs in custody since that positive screening result. Inquiries with the Urinalysis Screening Unit revealed that since his admission into custody Mr Tran has undergone eight urinalysis screenings; the most recent was on 22 January 2006. With the exception of one urinalysis result of 29.09.04 when morphine was detected, screenings have yielded a “nil detection” of drugs.

Mr Tran has participated in the following drug and alcohol related courses:

•    One Day Drug and Alcohol Awareness Workshop

•    HHARD Programs

•    Narcotics Anonymous

In discussion the Alcohol and Other Drugs worker at Silverwater CC, confirmed Mr Tran’s monthly attendance at individual counselling and regular participation in the Narcotics Anonymous program. The worker indicated that Mr Tran had progressed well insofar as he had gained an understanding of his drug addiction and had developed a variety of relapse prevention strategies. Nevertheless, he felt that given the increased probability of relapse to drug use in the community, the offender would benefit from continued attendance at drug and alcohol programs and/or individual counselling in the community.

141    The Assistant Minister notes this observation from the report:

Perusal of Mr Tran’s Correctional Centre Case Management File garnered favourable work performance reports, commenting positively on his good work attitude, pride in workmanship, high productivity and his willingness to train other inmates.

142    That observation comes from a section of the report under the heading of “Employment” and the other paragraph introducing the above quoted paragraph is this:

Employment

Records indicated that Mr Tran has remained employed throughout his custodial sentence. Both at Cessnock and Silverwater CC, Mr Tran has maintained employment at the Upholstery Workshop. More recently Mr Tran was assigned the sweeper’s position in F Block at Silverwater CC leading up to his commencement of full time employment in the community.

143    The passage quoted by the Assistant Minister (at [141] of these reasons) may be consistent with a consideration of factors relevant to a consideration of whether this quoted conduct is consistent with the appellant’s claim to have been free from drug use since 2004.

144    At para 92, the Assistant Minister says this (speaking at 17 January 2017) in relation to what seems to be a reference to the appellant’s insight into his former “drug addiction”:

Mr Tran demonstrates good insight into his drug addiction, he states that when he was using drugs his shame and guilt would overwhelm him and he was “not strong enough”. He states that his wife and children have shown him how to be strong and given him reasons to change. Mr Tran submits that he will not repeat the mistakes of his past, he is now in a better position “mentally and morally” and with the love and support of his wife and children and extended family he stated “I know I can succeed”.

[emphasis in bold added]

145    At paras 93, 94 and 95, the Assistant Minister notes claims of Mr Tran about the factors and incentives he has to remain law abiding and not re-offend.

146    At para 92 quoted above, the Assistant Minister talks about the period “when [the appellant] was using drugs” and his then ability to overcome drug use. That period of drug use or drug addiction is said by Mr Tran to have ended in 2004 and it seems on the evidence the relevant date is by September 2004. The Assistant Minister notes Mr Tran’s claim that he will not “repeat the mistakes of the past”. At para 99, the Assistant Minister finds that Mr Tran’s “past offending” involving “dishonesty, drug and driving offences” have the potential to result in “significant harm to the community”.

147    To the extent that Mr Tran’s “past offending” involving “drug use” is material to a current or contemporary forward looking risk of harm to the community (assessed as at 17 January 2017 and looking forward), or that Mr Tran’s “history of drug addiction” (which is said by Mr Tran to have come to an end by September 2004), coupled with the notion that “his rehabilitation” (from drug addiction) has not been tested in the community, informs “a likelihood” that Mr Tran will re-offend, the Assistant Minister must consider (that is meaningfully address as a matter of substance), the claim that Mr Tran’s drug use ended in 2004 and at the latest, on the evidence, by September 2004.

148    The exercise of the discretionary power requires the Assistant Minister to consider that claim and make findings about whether he could be satisfied of a likelihood that Mr Tran’s drug use came to an end by September 2004 and then consider on the role of that finding (whatever it may be) to a likelihood of Mr Tran re-offending. Since the Assistant Minister regards the history of Mr Tran’s drug addiction and the extent to which his rehabilitation from drug addiction has not been tested in the community, as matters material to the exercise of the power, the claim that Mr Tran has been drug-free since September 2004 (a period of 12 years and four months prior to the exercise of the power) is a matter that must be addressed and not simply noted as a statement made by Mr Tran.

149    The failure to consider whether the Assistant Minister could be satisfied of that claim and the role of any finding on that topic to the matters recited at paras 98 and 99 is a failure to discharge the statutory obligation described at [113] of these reasons. As mentioned earlier, having regard to the seriousness of the consequences of the exercise of the power to not revoke the cancellation decision (as recognised by the Assistant Minister at paras 27, 28, 46, 49, 65 and 103), and the role the history of the appellant’s drug addiction played in the exercise of the power, the Assistant Minister was required to consider and make a finding about the appellant’s claim to have been drug-free since 2004.

150    In failing to consider that claim and its role (or otherwise) in the findings at paras 98 and 99 the Assistant Minister fell into jurisdictional error by failing to discharge the statutory obligation. It is not necessary to consider the further ground of unreasonableness.

151    Accordingly, the decision of the primary judge is to be set aside and in place of those orders, orders ought to be made setting aside the decision of the Assistant Minister and remitting the matter for determination according to law. The respondent is to pay the appellant’s costs of and incidental to the appeal and the costs of the proceeding before the primary judge.

Associate:

Dated:    7 August 2019

REASONS FOR JUDGMENT

CHARLESWORTH AND O’CALLAGHAN JJ:

152    We have had the benefit of reading the reasons of Greenwood J in draft. We gratefully adopt the narrative of background facts and the statements of legal principle set out in his Honour’s reasons.

153    The outcome of this appeal turns upon the proper interpretation of the grounds of appeal extracted at [80] of the reasons of Greenwood J and upon the proper interpretation of the reasons of the Assistant Minister.

154    For the reasons that follow, we have concluded that leave should be granted to raise an argument not advanced in the proceedings before the primary judge, notwithstanding that the argument was not clearly articulated on the notice of appeal.

155    We would nonetheless reject the argument on its merits and dismiss the appeal.

THE GROUNDS FOR JUDICIAL REVIEW

156    The grounds for judicial review are extracted at [74] of the reasons of Greenwood J.

157    The primary judge considered each of those grounds in the context of written and oral submissions made by the appellant at first instance. The primary judge concluded that the appellant had not identified any jurisdictional error in the decision of the Assistant Minister and that the case rose no higher than inviting the Court to consider the merits of revoking the cancellation of the visa. That conclusion was a discrete and sufficient basis for dismissing the application for judicial review. It was plainly correct.

158    The primary judge went on “for completeness” to make observations about the individual grounds. Those observations (extracted at [78] of the reasons of Greenwood J) are not affected by appealable error.

GROUNDS OF APPEAL

159    The appellant was self-represented on this appeal, as he was at first instance. His grounds of appeal reflect the special disadvantage faced by litigants with no legal assistance or training in cases of this kind. In some respects the grounds are incomprehensible.

160    The grounds of appeal are otherwise problematic in at least the following respects:

(1)    the grounds do not allege that the primary judge erred by dismissing the application for judicial review for the reasons given at first instance in connection with any one of the grounds for judicial review;

(2)    the opening words of the first ground refer to “certain matters identified in the statement of reasons”, without identifying the “certain matters”;

(3)    the second ground alleges that the Assistant Minister’s “assessment” under s 501CA(4)(b)(ii) of the Migration Act “misapplied” without identifying any jurisdictional error affecting the Assistant Minister’s application of the statutory provision to the facts as the Assistant Minister found them;

(4)    the opening words to the third ground attributes a finding to the primary judge that his Honour did not make, namely that the Assistant Minister’s reasoning was fundamentally flawed by reason of jurisdictional error; and

(5)    the particular in [3(b)] also attributes a finding to the primary judge that he did not make, namely that there was a rational foundation for the Assistant Minister’s assessment as to the potential for any further offending by the appellant to cause physical harm to members of the Australian community.

161    Subject to observing the rules of procedural fairness, this Court may interpret the grounds of appeal generously and in the context of the written and oral submissions made in support of them. It is the substance of the complaint that is to be identified, especially on an appeal commenced by a self-represented litigant. It is not necessary for an allegation of jurisdictional or appealable error to be drafted in a manner that semantically conforms to a recognised category of error discussed in the decided cases: BPI17 v Minister for Immigration and Border Protection [2019] FCA 637 at [22] – [28].

162    Reasonable minds may differ as to the latitude that may properly be extended to a self-represented litigant in respect of grounds that are poorly cast. Ultimately, however, the question is one of fairness. If a particular interpretation of an alleged appealable error appears to the Court to be open, the respondent to the appeal should be afforded the opportunity to be heard both in relation to the suggested interpretation and in relation to the substantive merits of the ground, so interpreted.

163    In this case, the grounds of appeal are to be considered against the appellant’s affidavit sworn on 3 April 2018. However, that affidavit does not overcome the difficulties with the grounds identified at [160] above.

164    In our view, [1] and [2] of the grounds of appeal do not raise any question capable of consideration and determination by this Court in the exercise of its appellate jurisdiction. The same may be said of the opening words of [3] and the particular in [3(a)].

ALLEGATIONs OF LEGAL UNREASONABLENESS

165    A different consideration arises in relation to [3(b)]. Although cast as a “particular”, that sub-paragraph appears to contain a discrete allegation of appealable error by the primary judge.

166    Interpreted favourably, [3(b)] alleges legal unreasonableness affecting a particular finding attributed to the Assistant Minister. The finding complained of is to the effect that there was a potential for any further offending by the appellant to “cause physical harm” to members of the Australian community. To the extent that the alleged finding is said to lack a rational foundation, [3(b)] may fairly be interpreted to allege jurisdictional error of the kind identified by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. See also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 and Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81. No such error was alleged in the proceedings before the primary judge.

167    The difficulty for the appellant is that the ground in [3(b)] attributes to the Assistant Minister a conclusion that he did not draw. The Assistant Minister made no specific finding to the effect that any future offending by the appellant had the potential to cause physical harm. The Assistant Minister’s findings as to the particular harm that might result from future offending are expressed at [75] and [99] of his statement of reasons, which bear repeating here:

75.    I have formed the opinion that Mr TRAN has been a frequent offender commensurate with a ‘drug addict who committed offences in order to fund his addiction’. I find that the sentences Mr TRAN received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious. I consider that the cumulative effect of his offending conduct has imposed a significant cost upon the Australian community, through the expenditure of police and court resources.

…

99.    I find that Mr TRAN’s past offending with dishonesty, drug and driving offences have the potential to result in significant harm to the community. His offending has had a significant cost to the community through policing, legal, court and detention costs. Should Mr TRAN re-offend with similar property offences, the financial and psychological impact of his offending will continue to negatively impact the Australian community.

168    Although the appellant’s offending in 2010 involved the use of a weapon, the sentencing remarks (to which the Assistant Minister had regard) confirmed that the weapon was employed for the purpose of terrorising the victims if necessary should a confrontation occur. The sentencing judge said that the fear experienced by the victims must have been very real and that persons who have their homes broken into suffer from a feeling of insecurity thereafter. The material before the Assistant Minister suggested that the harm caused by the offending in 2010 was predominantly psychological. The Assistant Minister did not conclude otherwise.

169    Read in the context of the statement of reasons as a whole, the risk of harm to which the Assistant Minister referred was a risk that outweighed considerations favouring revocation. The reasoning was not dependent upon a finding of a risk of physical harm. Accordingly, the argument raised in [3(b)], interpreted generously, should be rejected.

170    Importantly, the Assistant Minister’s written submissions dated 22 August 2018 address the complaint in [3(b)] of the notice of appeal in terms concerning the risk of reoffending per se, rather than by reference to any physical harm that might result. The Assistant Minister’s position is shortly stated at [21] of the written submissions as follows:

In so far as the appellant on appeal contends that the Minister’s assessment of his risk of reoffending was not rational, that suggestion must be rejected. The appellant’s significant criminal history demonstrated consistent recidivism over a period of 20 years and his last offence was committed after a warning from the Department about the consequences of further offending and while he claimed to be free from drug use.

171    The argument identified and addressed in that paragraph reflects the course of oral argument on the appeal and the Assistant Minister has been heard in respect of it. In our view it is appropriate to consider and decide the argument on its merits, notwithstanding that it finds no expression in the grounds of appeal.

CONSIDERATION

172    The sole question to be determined on the appeal is whether the Assistant Minister’s finding that there was a potential for the appellant to reoffend per se was irrational and therefore legally unreasonable. To the extent that the appellant requires leave to advance that argument, leave will be granted.

173    The principles of legal unreasonableness in their application to the cancellation of a visa on character grounds were summarised in Muggeridge as follows:

Unreasonableness

Context and principles

…

35    The alleged error is one affecting the process of reasoning adopted by the Minister in the exercise of a discretionary power. It is well settled that a discretionary power conferred by a statute is to be construed as subject to the condition that it be exercised reasonably. The principles to be applied are considered at length in the various judgments in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) and in the decisions of the Full Court of this Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton). They may be briefly summarised as follows:

(1)    the power conferred under s 501(2) of the Act is implicitly confined by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J);

(2)    as Allsop CJ explained in Stretton (at [11]), the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation:

    … the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

(3)    the Court is to look to the reasons given for the decision to understand why the power was exercised as it was: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh);

(4)    as the Full Court explained in Singh, the process of review of legal unreasonableness ‘will inevitably be fact dependent’. The Court continued (at [48]):

    … That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as ‘intelligible justification’ must involve scrutiny of the factual circumstances in which the power comes to be exercised.

(5)    in a different review context, Deane J spoke of the requirement that a statutory tribunal act rationally and reasonably: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367-368. His Honour’s explanation of the content of that obligation applies equally to the Minister in the exercise of the power conferred by s 501(2) of the Act (at 367):

    When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.

(6)    nevertheless, as Wigney J said (with respect correctly) in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (at [55]):

    … allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].

Consideration

36    It may be observed from the outset that the task of the Minister necessarily involved a degree of postulation as to what might occur in the future should Mr Muggeridge’s visa not be cancelled and should he remain present in the Australian community. The Minister was entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past. As the joint judgment held in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), ‘[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their occurrence.’ The adoption of a reasoning process that involved postulation or supposition cannot, in and of itself, therefore constitute jurisdictional error. It is nonetheless necessary that the hypotheses underlying the decision bear some rational connection to the evidentiary materials upon which the Minister is said to have relied.

174    In his oral submissions, the appellant emphasised the rehabilitative courses he had undertaken since his offending in 2010 and the traumatic experiences of his youth. He referred to the support he received from his long term partner and the effect of the cancellation of his visa on his family. He submitted that a person who had rehabilitated was deserving of a second chance. He confirmed that upon the completion of his custodial sentence in July 2016, he had been taken immediately into immigration detention. He said that he wanted a chance “to test me outside”. The appellant confirmed that it was his intention to argue that there was no rational basis for the Assistant Minister’s concern about future offending.

175    The appellant did not submit that his recovery from drug addiction was determinative of the question of whether he might reoffend. The material before the Assistant Minister neither required nor supported any such a conclusion in any event. The material showed that the appellant’s most serious offending occurred in 2010, some six years after the date upon which the appellant claimed to have become “drug free”. The submissions made to the Assistant Minister were to the effect that the drug addiction explained the appellant’s earlier criminal convictions. No such submission was made in relation to the offending in 2010.

176    In our view, the Assistant Minister’s conclusions at [98] of the statement of reasons (extracted at [61] above) should not be interpreted to include any finding that the appellant’s recidivism was wholly explained by his addiction to drugs. Nor should the Assistant Minister be understood as saying that the appellant’s history of offending directly corresponded in size or degree with his drug addiction. We respectfully disagree with the reasoning of Greenwood J in this respect.

177    The word “rehabilitation” as used at [98] of the statement of reasons should be understood as rehabilitation from offending behaviour and not to the narrower (albeit related) question of whether the appellant had recovered from his past drug addiction. The Assistant Minister’s chronology of events clearly recognises that the serious offence resulting in the visa cancellation occurred in 2010.

178    The Assistant Minister expressly acknowledged that the appellant had good insight into his drug addiction (at [92]) and his “progress toward rehabilitation” (at [98]). The conclusion that the possibility of reoffending could not be ruled out is to be understood as having been reached notwithstanding those favourable matters.

179    The Assistant Minister’s conclusion that the appellant’s rehabilitation had not been tested in the community was correct: the appellant had not been released into the community since his imprisonment in 2010 for the serious offending that led to the mandatory cancellation of his visa. The drug testing regime to which the appellant had previously been subject was undertaken in a correctional environment while the appellant was released on parole, during which time he was reported to have “responded well to supervision”.

180    In assessing the appellant’s risk of recidivism, the Assistant Minister took into account the lack of respect the appellant had shown for Australian laws, as evidenced by the offence that occurred after the appellant had received a warning that future offending might result in the cancellation of his visa.

181    In our view, these latter considerations provide an evident and intelligible basis for the Assistant Minister’s conclusion that the possibility of reoffending could not be ruled out. On the material before him, it was open to the Assistant Minister to find that there was a possibility of reoffending notwithstanding the appellant’s claim that he had recovered from his addiction to drugs in 2004.

182    In the factual circumstances described, it was not necessary for the Assistant Minister to make a positive finding as to whether or not the appellant’s claim to be drug free since 2004 was true. The conclusion that there was a possibility of future offending did not depend any assessment of whether or not the appellant had recovered from his drug addiction. That is because drug use was not put forward by the appellant as an explanation for his offending in 2010, nor could any recovery from addiction alter the circumstance that the appellant had disrespected Australian laws by committing a serious offence after receiving a warning that future offending might result in the cancellation of his visa.

183    We would not in any event accept the proposition that the Assistant Minister failed to properly consider the “drug free” claim. In considering the personal impact on the appellant of the non-revocation of the cancellation decision, the Assistant Minister concluded that if the appellant were to “relapse” into drug addiction after returning to Vietnam, there would be limited services available to him. The language of that conclusion acknowledges that the appellant had recovered from his addiction, whilst at the same time recognising that relapse might be possible.

184    There is no jurisdictional error of the kind alleged.

185    Accordingly, the appeal should be dismissed.

Associate:

Dated:    7 August 2019

SCHEDULE 1 [72], GREENWOOD J