FEDERAL COURT OF AUSTRALIA

Navoto v Minister for Home Affairs [2019] FCAFC 135

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

THE COURT:

Introduction and summary

1    The appellant, a citizen of Fiji, appeals from the first instance decision of this Court in Navoto v Minister for Home Affairs [2019] FCA 295. The primary judge dismissed an application for judicial review of a decision of the Assistant Minister for Home Affairs (Assistant Minister) under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation of the appellant’s Class BC Subclass 100 (Spouse) visa.

2    The appellant contended that the primary judge erred in reaching various conclusions. The impugned conclusions of the primary judge were that: (a) the Assistant Minister’s finding that appropriate treatment and medication for the appellant’s depression and anxiety was likely to be available in Fiji was supported by evidence; (b) even if that finding was not supported by evidence, it did not constitute a jurisdictional error by the Assistant Minister; and (c) the Assistant Minister had not failed to give appropriate consideration to the appellant’s lack of ties or support in Fiji.

3    Our view, in summary, is that, even if the Assistant Minister’s relevant finding—that appropriate treatment and medication for the appellant’s depression and anxiety was likely to be available in Fiji—was unsupported by evidence, a matter which is unnecessary for us to decide, the failure to support that finding with evidence did not amount to a jurisdictional error by the Assistant Minister.

4    Moreover, having regard to the manner in which representations were made by, or on behalf of, the appellant, and the reasons of the Assistant Minister as a whole, our view is that the Assistant Minister did not fail to give appropriate consideration to the lack of the appellant’s ties or support in Fiji, including the threat of homelessness upon his removal to Fiji.

5    For these reasons, as are further explained below, the primary judge was correct to dismiss the appellant’s application for judicial review of the Assistant Minister’s decision. The appellant’s appeal must accordingly be dismissed.

Background

6    The appellant is a citizen of Fiji. He arrived in Australia in August 2000. He has three children from a relationship with a former partner, who are Australian born and hold Australian citizenship. The appellant has an Australian citizen partner who is referred to as Ms R in these reasons.

7    Since July 2009, the appellant has been convicted of a number of criminal offences. These include:

(a)    on 26 March 2014, a conviction for intentionally causing injury and contravening a family violence intervention order, resulting in a sentence of imprisonment for a period of 18 months, with 11 months suspended; and

(b)    on 7 October 2014, a conviction for various offences including recklessly causing injury, assault with a weapon, and contravening a family violence intervention order, resulting in a sentence of imprisonment for a period of 12 months to be served concurrently.

8    On 18 December 2014, a delegate of the Minister for Immigration and Border Protection decided to cancel the appellant’s visa under s 501(3A) of the Act. However, on 5 August 2016, the Minister decided to revoke that cancellation pursuant to s 501CA(4) of the Act. The letter notifying the appellant of that decision relevantly stated:

Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.

9    On 24 January 2017, the appellant was convicted of intentionally causing injury, making threats to kill and intentionally destroying property, resulting in a sentence of imprisonment of nine months to be served concurrently, and a community correction order for 12 months.

10    On 22 March 2017, a delegate of the Minister cancelled the appellant’s visa pursuant to s 501(3A) of the Act. That provision relevantly provides as follows:

Refusal or cancellation of visa on character grounds

…

(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)    …; 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 of a Territory.

11    It is not in dispute that, as at the date of the cancellation of his visa, the appellant met the conditions in s 501(3A). The consequence is that the Minister was required by the Act to cancel the appellant’s visa.

Request for revocation

12    The appellant was notified of the delegate’s decision and, in accordance with s 501CA(3)(b) of the Act, was invited to make representations about whether the decision to cancel his visa should be revoked.

13    On 5 April 2017, the appellant completed the relevant revocation request form. He relevantly stated the following in handwriting:

I HAVE BEING [sic] LIVING AND WORKING IN AUSTRALIA SINCE 2000 AND I HAVE 3 BEAUTIFUL CHILDREN …. I LOVED MY KIDS WITH ALL MY LIFE AND EVERY CHILDREN DESERVED TO BE AND HAVE PARENTS WHETHER FATHER OR MOTHER. AS A FATHER I WILL DO EVERYTHING AND ANY HELP I CAN GET TO BE A BETTER PARTNER, A BETTER FATHER AND A BETTER PERSON TO HELP COMMUNITY AND HELP ALOT [sic] OF PEOPLE IN NEED FOR BETTER LIFE AND LOOK AFTER OUR LAND OF OPPOTUNITY [sic] CALLED AUSTRALIA.

14    The appellant also completed a personal circumstances form on the same date which relevantly stated the following:

I STARTED HAVING A RELATIONSHIP WITH MY PARTNER [MS R] ON THE 9/1/2011 AFTER SEPARATED WITH MY WIFE …. ME AND [the appellant’s wife] SHARED THE RESPONSIBILITY OF BRINGING OUR 3 KIDS REGARDLESS OF LIVING IN TWO SEPARATED HOUSE. THROUGH OUT MY RELATIONSHIP WITH [MS R] I JUST FOUND OUT THAT SHE HAD MENTAL ISSIEUS [sic] WHICH I HAVE TO DEAL WITH AND LOOKING AFTER HER AS HER CARERER [sic] AND PARTNER. I HAVE REASONATLY [sic] (PREVIOUSLY) PROVIDE EVERY LETTERS AND DOCUMENT ABOUT MY RELATIONSHIP WITH [MS R] AND REGARDLESS TO OUR ISSUIS [sic] AND PROBLEM WE REALLY NEED EACHOTHER [sic].

15    In relation to his criminal history and the risk of offending, the appellant also expressed the following in the personal circumstances form:

Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?

THE ONLY PROBLEMS THAT I HAVE IS MY RELATIONSHIP WITH MY PARTNER [MS R], AND HOW TO DEAL WITH OUR ALCOHOL CONSUME [sic] AND ANGER MANAGEMENT.

I HAVE 12 MONTHS CCO AT THE END OF MY SENTENCE AND I WILL UNDERGO RELATIONSHIP COUNSELLING PROGRAM, ANGER MANAGEMENT AND ALCOHOL COUNSELLING AND GET HELP FOR DEPRESIONS [sic] AND ANXITY [sic] WHICH IM [sic] ON MEDIATION FOR IT.

…

If yes [in answer to the question “Have you ever previously received a warning from the Department or Minister?”], please indicate why you re-offended.

I HAD AGUMENT [sic] WITH MY PARTNER AND I WALK AWAY AND MADE A WRONG DECISION TO DRINK ALCOHOL AND GET DRUNK. BECAUSE MY TABLETS I TOOK AND MIX WITH ALCOHOL MADE ME ACT STUPID AND I DEEPLY REGRET.

What do you think is the likelihood that you may re-offend now? Please give reasons for your answer.

NONE, AND I STOP DRINKING ALCOHOL AND MY C.C.O PROGRAM WILL KEEP ME ALERT AND GET HELP FOR MY DEPRESION [sic] AND ANXITY [sic].

Have you completed any course or programs that will help you to avoid further offending and to make a positive contribution to the community? Please provide evidence e.g. course completion certificates.

MY CORRECTION ORDER WILL PROVIDE ALL THE PROGRAMS WHEN I GET RELEASE FROM PRISON.

16    The personal circumstances form also asked about any “health information” that may amount to an impediment to the appellant’s removal to Fiji. The appellant’s relevant responses were as follows:

Do you have any diagnosed medical or psychological conditions? Yes 🗹 No ☐ If yes, please provide details of the condition/s and explain what treatment you are receiving (e.g. if you are on any prescription medication or you are receiving counselling).

CONTACT FULHAM MEDICAL

…

Do you authorise DIBP to contact these persons to discuss relevant information?

Yes 🗹 No ☐

17    The reference to “Fulham” in the appellant’s response is a reference to the correctional facility at which the appellant was being held.

18    Notwithstanding the appellant’s authorisation for the Minister to contact the correctional facility to obtain further details about the appellant’s “diagnosed medical or psychological conditions”, there is no evidence of any such inquiries being made by the Minister or on his behalf.

19    The appellant expressed the following answers on the personal circumstances form in relation to his imminent return to Fiji:

… please describe your concerns and what you think will happen to you if you return.

MY PARENTS ARE BOTH DIED [sic] AND I DON’T HAVE ANYBODY OR ANYTHING TO LIVE FOR.

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

NOT BE ABLE TO SEE MY KIDS OR HAVING PHYSICAL CONTACT WITH THEM AND ALSO MISSING OUT ON LOTS OF THINGS LIKE SCHOOL, SPORTS AND THE MOST OF ALL IS BE CLOSE TO THEM WHEN THEY NEEDED ME.

20    On 3 September 2017, the appellant participated in an interview at the Melbourne Immigration Detention Centre during which he was required to assist in the completion of a form relating to various personal information of the appellant. The appellant responded to one question in that form as follows:

Do you have any known medical issues the Department should be aware of?

Medical issues: Depression/Anxiety…

21    However, the same form later records, in relation to the criteria for “Rapid Removal”, the satisfaction of the following criterion:

Determine streaming into RAPID REMOVAL or CASE MANAGEMENT

If detainee is confirmed to be eligible for Rapid Removal, they must satisfy all of the following criteria.

The detainee:

…

🗹    has no known (or has not indicated) any significant health or medical reasons preventing their removal

…

22    On 28 December 2017, the Department invited the appellant to comment on particular information which the Department said may be taken into account by the Minister in considering whether or not to revoke the visa cancellation, being:

(a)    the appellant’s National Police Certificate dated 23 March 2017;

(b)    the sentencing remarks of the Dandenong Magistrates Court dated 24 January 2017; and

(c)    the warning about future conduct dated 5 August 2016, as extracted above at [8].

23    On 8 January 2018, the appellant responded to the Department via email. The substantive aspects of the email are set out below in full:

I accept that I have substantial criminal record and do not pass the character test. I would like you to exercise your discretion and not cancel my visa. Please take the following information into consideration when you make your decision.

I acknowledge that I have committed offences of a serious nature. My criminal record is relatively long and it includes some offences which are considered as “Serious Offences”, and some which also have some aspect of violence. The most recent offence is one of family domestic violence, which occurred on the 5th of December of 2017 at a place where my partner and I resided. Before 2017 I had been convicted of a number of other offences, all of these connected somehow to my alcohol dependence. I started committing offences when I was 32 years of age and I have been convicted of a few offences since then. Some were less serious, such as a drink driving charge in 2011.

For the most recent offence of family violence I received a sentence of 9 month [sic] imprisonment and 12 months community correction order. This is at the lower end of the scale of sentences and the Judge took into account a lot of things that were happening in my life at the time of the offence and reduced my sentence. The Judge also said that Her Honour with some rehabilitation I would improve my chances of staying out of trouble.

At that time I was 4 months into living back into the community and me and my partner [Ms R] were looking for a new place to stay. We were living in one of the local motel [sic] for about 2 weeks before we found a place where we paid rent and finally settled in. My partner and I had individual issues that needed to be addressed and also get help in order to resolve it.

Around this time on the 5th of December my partner and I had an argument and I decided to walk away and left our place. I haven’t touched alcohol for about 3 years but on that very day, emotionally stressed and depressed I decided to have a drink of alcohol, which did not bode well and later resulted in me having a conflict with my partner once I returned home.

When I was arrested I knew I had done the wrong thing by my partner, who I love and the one person that is there for me when I needed her the most. I naively took upon touching alcohol on that very day to ease my depression and anxiety, and I was wrong. I did not fully comprehend the consequences of my actions for me, my partner or my family. I feel ashamed about the way I treated my partner.

: Risks that I might reoffend:

This offence is clearly not my first one but all of them are related to my own problems, some with alcohol, some of them being personal problems that have come about because of my own background.

I now feel ashamed about the way I have behaved in the past and deeply regret the hurt I have caused to my partner, my kids and other families. I haven’t been able to see my kids because of the time I spent in Gaol and while being in Detention centre and that also play a large part for my stress and depression. I am also making an effort to sort out my life and to become a person and a dad that my kids use [sic] to know and be proud of.

If I permitted to remain in Australia I will not repeat the mistakes of my past. I am now in a different position to where I was before and with the help of counselling, work, and getting to see my kids again, it will make me a more mature and noble person and hopefully be the better dad that my 3 lovely children deserve.

I have been in contact with my partner [Ms R] everyday via telephone and also talked about how we can improve and better our future, and also in terms of seeking relationship counselling if needed. I couldn’t put a price on my family, and since the veil that alcohol had put over my eyes has been lifted, there is absolutely nothing I wouldn’t [sic] to have the opportunity to have a life with my partner and my children.

I have sought proper medication for my depression and I know with the support of my partner and my family in Melbourne, I will maintain my commitment to a better life an stay away from alcohol. I used alcohol impetuously as a means to deal with problems but I have learned so much within this time away from my family and completely rejected that notion ever again.

I hope you will take all of the above information into your consideration and find it within you to entrust upon me with a chance to be a better man, husband or father to my family.

24    In addition, on 19 January 2018, Ms R, the appellant’s partner, made the following written representations in support of the appellant’s request for revocation:

My name is [Ms R]. I am writing on behalf of my partner Lemeki Navoto. Lemeki and I are sincerely in love and want to spend the rest of our lives together. I have being [sic] strongly against us being separated, which has affected me both emotionally and physically all throughout this ordeal.

I miss him very much, considering his Goul [sic] time and in detention. It has been hard for me being separated from him. I do have daily phone contact with Lemeki and I’m very grateful to have him in my life during this very hard period. I’m very proud of him; he’s very fit mentally and physically.

I wish for both of us to receive the most professional relationship counselling in aspect of any relationship problems. Lemeki is a very important part of my life. Please consider your decision for him to reside with myself and his children in Australia and for us to continue our long term relationship. I adversely disagree upon the decision on the 6th of December 2017 which derived from a disagreement we both had and which was poorly misled by both of us.

I strongly believe, if given the opportunity for both of us to reunite, Lemeki and I will receive the utmost professional help and best advice to fulfil our love for one another in all aspect of our relationship, and pave the way for a beautiful future for us and our children.

Please take my request into consideration for your decision regarding Lemeki and myself to uphold our positive long term future relationship and for us to reunite once again. I sincerely request you take the mental and emotional trauma that would be inflicted upon me and our children if we are kept separated and consider in your decision to let us reunite, so we can live the rest of our lives together.

25    On 6 March 2018, the Department of Home Affairs invited further representations from the appellant on additional documents which the Department said may be taken into account. These additional documents all related to the appellant’s first request for revocation of a cancellation decision, which, as noted above at [8], was successful. The documents were as follows:

(a)    the appellant’s revocation request dated 9 January 2015;

(b)    an undated written submission by the appellant;

(c)    a Personal Details Form dated 13 January 2015;

(d)    written submissions from Victoria Legal Aid (VLA) dated 6 February 2015;

(e)    a letter of support from Ms Ilisapeci Davis (Ms Davis), being the appellant’s first cousin, dated 19 May 2015; and

(f)    further written submission from VLA dated 23 November 2015.

Some relevant aspects of these documents are highlighted below.

26    In the undated submission made by the appellant in advance of the first revocation decision, the appellant addressed his children, his attempts to hold employment, and his hopes to seek further counselling in relation to his alcohol abuse. His submission recounted how the appellant decided to leave Fiji after the death of his mother “cause I have nothing to live for in there [sic].” The submission also expressed the following plans:

As I have suffered separation anxiety, depression and grief over the last 14 years or so I also will seek an [sic] mental health plan with a phychologist [sic] and address this issues.

27    In the Personal Details Form dated 13 January 2015, the appellant expressed the following about returning to Fiji:

… please describe your concerns and what you think will happen to you if you return

I DON’T HAVE ANY IMMEDIATE FAMILY LEFT THAT I’M CLOSE TO. MY MUM AND MY FOSTER PARENTS ARE BOTH PAST AWAY [sic] AND MY CONCERN IS THAT I DON’T HAVE A LIFE OR ANYTHING TO LIVE FOR IN MY COUNTRY OF CITIZENSHIP. BUT TO BE IN AUSTRALIA WITH MY KIDS AND PARTNER.

28    In the written submissions dated 6 February 2015, VLA made various submissions on behalf of the appellant. In relation to the “Protection of the Australian community”, the submissions relevantly said the following:

Mr Navoto acknowledges the seriousness of his past offending, and does not seek to justify or excuse it. What is evidence however, is that his criminal past is clearly linked to his problem with alcohol abuse. Mr Navoto instructs that this problem with alcohol in turn is linked very much with his mental health issues, namely depression and anxiety. …

29    After recounting the appellant’s most serious offending, the same section of VLA’s submissions continued as follows:

… Once again, these offences occurred while he was drunk. He describes 2012-2013 as a particularly difficult period in his life: his ex-wife was being obstructive in letting him see his children, resulting in his sporadic contact with them ceasing altogether in 2012; he lost his job in October 2012 due of lack of available work; his depression continued but remained untreated; and he was experiencing problems and volatility in his relationship with Ms [R], who suffers from a mental illness and for whom he was essentially the primary carer. Throughout this period, Mr Navoto used alcohol as a form of escapism and self-medication, with disastrous consequences.

Clearly, the risk of Mr Navoto reoffending and endangering the Australian community in the future is intrinsically linked to his ability to address his alcohol addiction and his underlying mental illness. While he was apparently diagnosed with depression and anxiety in the past by his GP at Dandenong West Medical Centre, he declined treatment for it at the time as he was embarrassed by the diagnosis, and felt that he could just “tough it out”. During his current period of incarceration he has come to terms with the fact that he needs to accept treatment for his illness, and has commenced anti-depressants and anti-anxiety medication which he feels is slowly taking effect. Upon release from prison he is committed to continuing in his treatment, and hopes to go onto a mental health plan and seek the support of a psychologist.

Mr Navoto’s changed attitude towards medication and treatment for his illness bodes well for his rehabilitation, and his avoidance of alcohol as a means of self-medication. If Mr Navoto can indeed address his alcohol dependence, it is submitted that the Department ought to have confidence that the risk to the Australian community of his committing further offences is substantially reduced.

30    In a later section, VLA submitted the following in relation to the subject of the “Strength, nature and duration of ties to the Australian community”:

Despite his criminal past and the offences committed against her, Mr Navoto remains in a committed relationship with his partner, Ms [R]. Their relationship commenced around 2009. Ms [R] suffers from schizophrenia and depression, and Mr Navoto describes himself as her main carer prior to his incarceration, cooking and cleaning for her, ensuring her compliance with treatment, and taking her to appointments, etc. Somewhat ironically given the incidents that led to his incarceration, he describes Ms [R] as a very vulnerable person and that despite the problems in their relationship, he has a deep desire to protect her. Mr Navoto also instructs however that their relationship was extremely difficult, as Ms [R’s] illness at times manifested in erratic, suspicious and controlling behaviour that was a source of great frustration to him. His issues with alcohol and his inability to appropriately deal with his anger and frustration are what led to his very serious offending. Nonetheless, Mr Navoto and Ms [R] are committed to their relationship, and hope to have an opportunity to address their problems in a constructive way upon Mr Navoto’s release from prison.

31    VLA’s submissions finally noted the following about the appellant’s close relationships:

In addition to Ms [R], Mr Navoto enjoys a close relationship with his cousin, [Ms Davis] … Mr Navoto has had a number of family members in Fiji pass away in recent years, and Ms Davis is his main remaining contact with his family.

32    In her letter of support dated 19 May 2015, the appellant’s first cousin, Ms Davis, relevantly stated the following:

I now know the full extent of Lemeki’s depression and self medication with alcohol. If Lemeki was given the opportunity to remain in Australia, I would be here to fully support him in what ever capacity needs to be done. I would also encourage him to talk to me on a regular basis and also catch up on a regular basis. I would also take to him about seeking counselling.

…

I believe that the best way forward for Lemeki to overcome his depression, is to remain in Australia where he will get the full support of myself and my Husband. He would also get professional counselling here in Australia and be able to build his life back. Unfortunately, if he was to be sent back to Fiji, he would surely lose contact with his three children and would also not have the support or professional counselling that he could get here in Australia.

33    There is no record of the appellant making further representations in response to the Department’s further invitation on 6 March 2018.

Assistant Minister’s decision

34    On 23 April 2018, the Assistant Minister decided, pursuant to s 501CA(4) of the Act, not to revoke the delegate’s decision to cancel the appellant’s visa. The relevant terms of s 501CA are set out below for reference:

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.

…

35    The Assistant Minister’s statement of reasons for that decision (Minister’s Reasons) first explained that he was not satisfied that the appellant passed the character test for the purposes of s 501CA(4)(b)(i) of the Act: Minister’s Reasons at [4]-[9]. That aspect of the Assistant Minister’s decision is not in dispute.

36    The Assistant Minister then turned to whether he was satisfied for the purposes of s 501CA(4)(b)(ii) of the Act that there was “another reason” why the cancellation of the appellant’s visa should be revoked. This consideration was undertaken by reference to four broad subjects: “Best interests of minor children”, “Strength, nature and duration of ties”, “Extent of impediments if removed” and “Protecting the Australian Community”.

37    The Assistant Minister first considered the best interests of the appellant’s minor children: Minister’s Reasons at [13]-[19]. He found that it was in the best interests of each child that the cancellation of the appellant’s visa be revoked to enable the children to re-establish direct contact with their father should they wish to do so: Minister’s Reasons at [19].

38    The Assistant Minister secondly considered the strength, nature and duration of the appellant’s ties to Australia at [20]-[26]:

Strength, nature and duration of ties

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

21.     Mr NAVOTO has resided in Australia for some 17 years, having arrived as an adult, of 22 years.

22.     I have given more weight to this consideration as Mr NAVOTO contributed positively to the community through his employment activities from 2001 to 2012 and his volunteering activities, albeit limited. I find that until his offending, Mr NAVOTO had been making a positive contribution to the community through these activities and I have taken this into account.

23.     I accept that Mr NAVOTO has some family ties in Australia, in the form of his children, who are discussed above, and his current partner, [Ms R]. [Ms R] was the victim of his domestic violence offences. However he submits that their relationship is ongoing and that they need each other. [Ms R] has mental health issues, namely schizophrenia and depression, and Mr NAVOTO states that he was her main carer before being incarcerated. He adds that despite their past problems, they hope to address their issues in a constructive way.

24.     I note [Ms R] has submitted a letter of support in which she states that Mr NAVOTO is a very important part of her life, that they sincerely love each other and want to spend the rest of their lives together and that being separated from him has affected her emotionally and physically. I accept that [Ms R] is in some sense dependent on Mr NAVOTO and strongly wishes to resume their relationship, but I have some reservations about whether this is to her benefit, in view of the fact that he has inflicted serious violence on her on several occasions, as discussed above. Nonetheless, I accept her views as expressed.

25.     Other than [Ms R] and his children, Mr NAVOTO has not indicated any relatives in Australia, though a cousin, Ms Ilisapeci Davis, has written to support his revocation request.

26.     I have considered the effect of non-revocation upon [Ms R] and, to a lesser extent, his cousin Ms Davis, and accept that those persons would experience some emotional hardship and, in the case of [Ms R], some practical hardship also. I find that Mr NAVOTO has been making a positive contribution to the community through his employment and volunteer activities and I have taken this into account.

39    The Assistant Minister thirdly considered at [27]-[31] the extent of impediments to the appellant if he was removed from Australia. It is again relevant to extract those passages:

Extent of impediments if removed

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

28.     I note that Mr NAVOTO suffers from depression and anxiety and takes medication for such. I consider that appropriate treatment and medication for this condition is likely to be available in Fiji, though I acknowledge that it may not be of the same standard as that available in Australia and it may be harder to obtain, as indicated by Ms Davis in her letter.

29.     I note Mr NAVOTO submits that he does not have immediate family in Fiji, would not have anything to live for there and would not be able to see his Australian children if he were removed to Fiji.

30.     I accept that Mr NAVOTO may experience emotional hardship if he is removed from Australia and thereby separated from his children and partner. However, as a citizen of Fiji he will have access to government support service equal to that of other citizens of that country, though I acknowledge that these may not be of the same standard as available to him in Australia.

31.     Given Mr NAVOTO spent significant time in Fiji, I find that he would have developed an adequate knowledge of its cultural and social norms which would facilitate his reintegration to its society. I find that Mr NAVOTO’s English language skills would further assist his reintegration to Fijian society, given that English is one of Fiji’s official languages. Mr NAVOTO has consistently worked in Australia, and I find that he possesses work skills that would assist him in endeavouring to secure employment in Fiji in order to sustain a basic standard of living.

40    The Minister’s Reasons included a lengthy discussion of the protection of the Australian community at [32]-[48], where he considered the appellant’s criminal conduct and the extent of the risk that the appellant poses to the Australian community. The Assistant Minister found that the appellant’s criminal history was to be regarded as serious, and he remained at risk of further offending: Minister’s Reasons at [41] and [48].

41    The Assistant Minister finally turned to whether there was another reason why the cancellation of the appellant’s visa should be revoked. He expressed his conclusions as follows at [52]-[56]:

CONCLUSION

…

52.     In considering, in light of Mr NAVOTO’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr NAVOTO’s children …. I found that their best interests would be served by the revocation of the original decision.

53.     In addition, I have considered the positive contribution Mr NAVOTO has made to the Australian community through his employment and volunteering activities and/or the consequences of non-revocation of the original decision for his partner and cousin.

54.     On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr NAVOTO, some of which are of a violent nature.

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

56.     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 NAVOTO 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, as a primary consideration, and any other considerations as described above. These include his, employment, volunteer and familial ties to Australia, and the hardship Mr NAVOTO, his partner and to a lesser extend his cousin will endure in the event the original decision is not revoked.

42    The Assistant Minister, having given consideration to all of these matters, concluded that he was not satisfied that there was another reason why the original decision to cancel the appellant’s visa should be revoked: Minister’s Reasons at [57].

Application for judicial review

43    On 17 May 2018, the appellant applied to the Federal Court for judicial review of the Assistant Minister’s decision. By an amended application filed on 22 October 2018, the appellant sought to advance three grounds of review, one of which was later abandoned. The grounds of review advanced before the primary judge substantially overlap with the grounds that the appellant now raises on appeal.

44    On 8 March 2019, the primary judge dismissed the appellant’s judicial review application: Navoto v Minister for Home Affairs [2019] FCA 295. The relevant aspects of the primary judge’s reasons for that decision are addressed below by reference to the grounds of review advanced by the appellant.

45    The first ground of review advanced before the primary judge was that the Assistant Minister had failed to engage with the following representations made by the appellant:

1.1    Representations in relation to the mental health of the applicant’s wife namely that she has schizophrenia and depression and he was her carer

1.2     Representations in relation to the mental health hardship the applicant’s departure from Australia would have on his wife.

…

1.4     Representations that he could not get professional counselling for his mental illness in Fiji.

1.5     Representations that has no family ties or support networks in Fiji and would be left homeless if returned to Fiji.

46    The primary judge outlined at [33]-[51] the principles expressed in recent case law in relation to whether a decision-maker has given adequate consideration to representations made by a person seeking revocation. His Honour noted at [49] that the parties were in broad agreement as to those principles.

47    Applying these principles, the primary judge held that the Assistant Minister had substantively considered the relevant representations made by the appellant. This conclusion was explained in the following passages of his Honour’s reasons:

52    … it cannot be concluded that the Minister has not engaged with the representations in a way that reflects his taking into account and giving real consideration to the representations by the applicant, in particular in respect of the matters relied upon underground 1.

53     The focus of the argument was upon the asserted failure to engage with two areas: Ms R’s mental illness (grounds 1.1 and 1.2) and Mr Navoto’s absence of family ties or support, including counselling, in Fiji, resulting in homelessness (grounds 1.4 and 1.5).

54     As to Ms R’s illness, [Counsel for the appellant at first instance] had to confront [23]-[26] and [56] of the Assistant Minister’s reasons (set out above). In those paragraphs, there was an express recognition of her mental health issues, express reference being made to her schizophrenia and depression, of Mr Navoto having been her main carer, of their hope to address their personal and alcohol issues, and that the removal of Mr Navoto will cause “some emotional and practical hardship”.

55     [Counsel for the appellant at first instance] submitted that the decision failed to reflect any real engagement with the seriousness of the issue facing Ms R. With respect I cannot agree. There is a difference in language from the submission – “trauma” – to the decision – “hardship” – and there is not a reference to all the material in the representations which deals with the subject of ground 1. Nevertheless, one cannot conclude from that alone there was no real consideration of this issue. The reasons, on their face, reveal a real engagement. The Minister did not fail to consider properly Mr Navoto’s representations about his and Ms R’s mental and physical wellbeing. Rather, the Minister seems to have come to the view that the seriousness of Mr Navoto’s conduct towards Ms R and all the circumstances of the offending were a strong countervailing weight against revocation of the mandatory cancellation of the visa, even taking into account the hardship that would be suffered by Mr Navoto, Mr R and Ms Davis should Mr Navoto be removed from Australia.

56     As to Mr Navoto’s ties to, and support (including government support services) and possible homelessness in, Fiji, once again, the Minister adverted to his lack of family in Fiji: see [28]-[31]. In related findings (see [31]) the Minister commented upon Mr Navoto’s capacity to work. It was submitted that there was no qualitative engagement with the various matters. With respect, it cannot be concluded that real consideration was not given to Mr Navoto’s lack of ties in Fiji and the support he may or may not receive there. There was a finding about Mr Navoto being able to sustain a basic standard of living, which to a degree dealt with any homelessness issue. There was a sufficient confronting of the human reality of this hardship.

57     Once again, the determination of the question is one of evaluation of the reasons in the context of all the circumstances, in order to assess whether there was a qualitative failure of substance to engage with or take into account important representations made. I do not see in the reasons any ground to conclude that Mr Navoto’s lack of family ties or lack of support in Fiji and homelessness were not substantively considered.

48    The second ground of review advanced before the primary judge was that the Assistant Minister had made a finding of fact, for which there was no evidence and which was contrary to the evidence, about the availability of appropriate treatment and medication in Fiji for the appellant’s depression and anxiety. This ground was also rejected by the primary judge:

58    The second ground (ground 2.1) was that a finding of fact was made about the availability of appropriate treatment and medication in Fiji for Mr Navoto’s depression and anxiety, albeit perhaps not of the same standard as in Australia, without evidence.

59     It was submitted that Ms Davis’ letter ... was that he could not get counselling in Fiji – not that it would be of a lesser quality or standard.

60     There are two answers to the submission. First, even if there was an absence of evidence, the error was not jurisdictional. I accept the submission made by Mr Hosking, who appeared for the Minister, that the references in the representations to Mr Navoto’s anxiety and depression were never put as a representation that he would suffer harm or hardship in Fiji by reason of anxiety or depression that could not be treated there. Rather, his anxiety and depression were referred to throughout his submission as something that had contributed to, or explained, his offending in the past: … Thus, even if there was an absence of “evidence” for the finding, it was not a fact central to how the applicant had put his case to have the cancellation revoked. On this basis, on any view of the proper “test”, the point was not sufficiently central for there to be jurisdictional error …

61     In any event, there was no absence of evidence or material.

62     First, the letter of Ms Davis is capable of being (and is, in my view, better) construed as the Minister did implicitly in [28]. If a document included as part of the representation is reasonably capable of more than one construction, a decision-maker does not necessarily commit error in understanding it one way and acting on that understanding.

63     Secondly, it is a statement of a kind about which a Minister of the Australian Government could reasonably be expected to have some general knowledge. An absence of “evidence” should be understood as an absence of relevant material, including knowledge likely to be indirectly gained from accumulated knowledge of governmental affairs. The general economic and social condition of a familiar country in the region such as Fiji is something a Minister can be taken to be aware of.

(Citations omitted.)

Appeal to the Full Court

49    The appellant appealed to the Full Court by way of notice of appeal dated 21 March 2019 and filed on 25 March 2019. The appellant was unrepresented at the time of filing this notice of appeal.

50    On 29 July 2019, the appellant, by this time represented pro bono by counsel, filed an amended notice of appeal. The amended notice of appeal challenged the primary judge’s decision on two grounds, as are considered in turn below. The Minister consented to the appellant having leave to rely on the amended notice of appeal.

51    This appeal was heard on 8 August 2019. The appellant was represented pro bono by Mr Barrington of counsel and the Minister was represented by Mr Hosking of counsel. Both had prepared and filed detailed written submissions in support of their respective arguments.

Ground of appeal (1) – Finding as to availability of appropriate treatment and medication in Fiji

52    The appellant’s first ground of appeal contended the following:

The learned primary judge erred in holding that the Assistant Minister’s finding that appropriate treatment and medication for the Appellant’s depression and anxiety was likely to be available in Fiji was:

a.    based on evidence or material before the Assistant Minister (at [62]-[63]); and

b.     in any event, not a jurisdictional error (at [60]).

Appellant’s submissions

53    The appellant submitted that the primary judge erred in concluding that there was evidence or other material upon which the Assistant Minister could base his finding that appropriate medication and treatment for the appellant’s depression and anxiety was likely to be available in Fiji. The appellant advanced various contentions in support of this ground of appeal.

54    First, the appellant contended that this was a positive finding by the Assistant Minister, not a qualified statement as contended by the Minister. The word “likely” in the Minister’s Reasons was said by the appellant to mean “more likely than not”.

55    Second, the appellant contended, for the following reasons, that the primary judge erred in finding that Ms Davis’ letter supported the Assistant Minister’s finding:

(a)    the letter did not mention anxiety or medication at all;

(b)    Ms Davis did not hold expert knowledge of the availability and quality of these services in Fiji; and

(c)    the primary judge misconstrued the following sentence of Ms Davis’ letter by necessarily reading in the words “to the same standard”:

if [the appellant] was to be sent back to Fiji, he would surely lose contact with his three children and would also not have the support or professional counselling that he could get here in Australia.

56    Third, the appellant contended that the primary judge erred in finding that the Assistant Minister could take, in effect, “official notice” of “[t]he general economic and social condition of a familiar country in the region such as Fiji”. The appellant conceded that, in certain circumstances, specialist administrative decision-makers may be entitled to draw on their accumulated knowledge or experience in respect of particular countries. However, in the submission of the appellant, a “highly-specific factual finding about the availability of medication and treatment for depression and anxiety in Fiji sits well outside the accepted matters about which a decision-maker can take official notice”.

57    Fourth, the appellant contended that where an administrative decision-maker makes a finding, unsupported by any evidence, and that finding is a critical step in its ultimate conclusion, the decision-maker may fall into jurisdictional error. The appellant submitted that the Assistant Minister’s finding in respect of the availability of appropriate treatment and medication for the appellant’s depression and anxiety was critical to the Assistant Minister’s decision.

Minister’s submissions

58    The Minister submitted that the primary judge was correct to find that there was evidence before the Assistant Minister to enable him to infer that appropriate treatment and medication for the appellant’s condition was likely to be available in Fiji. The Minister argued that the Assistant Minister did not make a finding that appropriate treatment and medication would be available in Fiji. The Assistant Minister instead, in the characterisation of the Minister, made a qualified statement—that appropriate treatment and medication is likely to be available in Fiji, albeit not of the same standard and more difficult to access in Australia.

59    This finding of the Assistant Minister was, in the Minister’s submission, supported by the letter of support provided by Ms Davis. In the Minister’s submission, it is clear from the Minister’s Reasons that the Assistant Minister understood Ms Davis’ letter as expressing that the counselling available in Fiji would not be of the same standard as that available in Australia.

60    Moreover, in the Minister’s submission, the finding of the Assistant Minister that appropriate treatment for the appellant’s depression and anxiety was likely to be available in Fiji also reflected expertise of the kind that the Assistant Minister would be expected to have developed in the course of making decisions under the Act. Counsel for the Minister noted that this Court had previously made similar observations in relation to knowledge of the general economic and social conditions of New Zealand. In the Minister’s submission, there is no reason why the Assistant Minister should be taken to be aware of those conditions of one familiar country in the region, but not another.

61    Alternatively, the Minister submitted that, even if there had been no evidence capable of supporting the Assistant Minister’s finding in relation to the availability of appropriate treatment in Fiji, the primary judge was correct to find that this would not amount to a jurisdictional error. This is because, in the Minister’s submission, the Assistant Minister’s finding was not of sufficient importance to the Assistant Minister’s decision; it was not a fact that was a precondition to the exercise of the Assistant Minister’s jurisdiction nor was it a fact that constituted a critical step in the Assistant Minister’s ultimate conclusion.

Consideration

62    To succeed on this first ground of appeal, the appellant was not only required to establish that there was no evidence supporting the Assistant Minister’s finding regarding the availability of appropriate treatment and medication in Fiji. He also needed to establish that failure to support the finding with evidence amounted to a jurisdictional error. This ground of appeal may be determined solely by reference to that latter issue.

Importance of the Assistant Minister’s finding

63    The submissions of the parties drew the Court’s attention to two competing approaches that have been adopted to determine whether a finding of fact made in the absence of evidence will amount to a jurisdictional error. These approaches may be described as follows:

(a)    a finding made with no evidence will only amount to jurisdictional error where the relevant finding is a precondition to the exercise of jurisdiction; and

(b)    a finding made with no evidence will only amount to jurisdictional error where the finding is a critical step in the ultimate conclusion of the decision-maker.

64    Discussion of the nature and correctness of these approaches is found in, for instance, Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 at [16] per Besanko J, [64]-[67] per Jessup J and [108]-[117] per Bromberg J and Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; 242 FCR 65 at [33]-[38] per Bromberg J. We also note that a recent decision of the Full Court of this Court applied the latter approach—that a factual finding unsupported by evidence will amount to a jurisdictional where the finding was critical to the outcome of the decision: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 (Hands) at [32] per Allsop CJ, with Markovic and Steward JJ agreeing.

65    The appellant relied on Hands, amongst other authorities, to apply the “critical step” approach in support of his argument that the Assistant Minister’s finding in this case amounted to a jurisdictional error.

66    It is ultimately unnecessary to express a view in relation to the relationship between, and the correctness of, these two approaches. That is because, whichever approach is adopted in this case, the Assistant Minister’s finding in relation to the availability of appropriate treatment and medication in Fiji did not amount to a jurisdictional error. The Assistant Minister’s finding was clearly not an express precondition to the exercise of his jurisdiction under the Act. And, for the following reasons, neither was it a critical step in the Assistant Minister’s ultimate conclusion.

67    The first basis for the conclusion that the Assistant Minister’s finding was not a critical step underpinning the Assistant Minister’s conclusion is an inference drawn from the relatively subordinate position of that finding in the Minister’s Reasons. Other than the Assistant Minister’s finding now under consideration, there is no reference to the appellant’s conditions, or access to appropriate treatment or medication, operating as an impediment to the appellant’s removal. The only other references to the appellant’s depression by the Assistant Minister were in the context of factors contributing to his past offending, and the likelihood that he will offend again: Minister’s Reasons at [43], [44] and [46]. As such, the Assistant Minister’s finding in respect of the availability of appropriate treatment and medication appears on the face of his reasons to have played a relatively minor part in the totality of his decision.

68    The mere fact that the Assistant Minister determined that the relevant finding was sufficiently important to include in his reasons does not signify that the finding was a fact critical to his ultimate decision. If that was so, then any factual finding conveyed in the course of administrative reasons could be characterised as critical to the outcome. Depending on the context, a court upon review may be entitled in infer that any matter not included in the administrative reasons was viewed by the decision-maker as immaterial. But it does not necessarily follow that any finding of fact expressed in the administrative reasons may be characterised as critical to the ultimate decision.

69    The second basis for the conclusion that the Assistant Minister’s finding was not a critical step in his decision is the lack of emphasis placed on the availability of appropriate treatment and medication in Fiji in the representations made to the Assistant Minister as a matter constituting an impediment to the appellant if he was removed to Fiji.

70    We accept that Ms Davis’ letter of support of the appellant’s first revocation decision, as relevantly extracted above at [32], raised concerns about the availability and quality of appropriate treatment—in the sense of professional counselling services—in Fiji. However, first, her letter did not make any reference to the availability of appropriate medication in Fiji. And, regardless, it is difficult, in light of the entirety of the representations made by, or on behalf of, the appellant, to characterise the existence of these passages of Ms Davis’ letter as amounting in isolation to an advancement of the availability and quality of treatment and medication in Fiji as a reason why the cancellation of the appellant’s visa should be revoked.

71    We also accept that the appellant raised the existence of his depression, or at least the possibility of a psychological condition, with the Department on separate occasions in his personal circumstances form dated 5 April 2017 (see [16] above) and his interview form dated 3 September 2017 (see [20] above). However, these bare references do not amount to the advancement of an impediment to the appellant if he was removed to Fiji. And, as conceded by counsel for the appellant, there was no obligation on the Minister in the current circumstances to make further inquiries into the appellant’s conditions alluded to in these documents.

72    Importantly for the determination of this ground of appeal, the majority of references to depression and anxiety in the representations made by, or on behalf of, the appellant were expressed only in the context of factors contributing to his past offending or otherwise as background to him seeking counselling. These references are found in the appellant’s undated submission in advance of the first revocation decision (see [26] above), VLA’s submissions on behalf of the appellant dated 6 February 2015 (see [28]-[30] above), the appellant’s personal circumstances form dated 5 April 2017 (see [15] above) and the appellant’s email dated 8 January 2018 (see [23] above). However, none of these references characterise the existence of the appellant’s depression and anxiety, nor the availability of appropriate treatment and medication for such conditions, as impediments that the appellant would experience if removed to Fiji. Those matters were raised for different purposes. Indeed, on the other hand, the interview form completed on 3 September 2017 (see [21] above), suggested, albeit in the particular context of potential “Rapid Removal” of the appellant, that there was no known significant or medical reasons preventing removal of the appellant from Australia.

73    For these reasons, the Assistant Minister’s finding was not a critical step underpinning his decision not to revoke the cancellation of the appellant’s visa. Accordingly, even if that finding was not supported by evidence, and regardless of which approach outlined above at [63] was adopted, the failure to reach that finding did not amount to a jurisdictional error by the Assistant Minister.

Evidential support for the Assistant Minister’s finding

74    As the analysis above is determinative of this first ground of appeal, it is therefore unnecessary for us to determine whether the Assistant Minister’s finding was supported by evidence, either by Ms Davis’ letter of support or any accumulated knowledge of the Assistant Minister.

75    We note in passing, however, that the submissions of the parties in relation to the latter form of supporting evidence—the accumulated knowledge of the Assistant Minister—may require consideration in an appropriate future case. At the heart of those submissions was the issue as to what extent, if at all, an administrative decision-maker is entitled, in the absence of material presented to the decision-maker, to rely, where relevant, on knowledge about particular features of other countries, either as a matter of general knowledge or as specialist knowledge accumulated in the course of making similar decisions, to inform his or her decision. In the current statutory context, the issue is liable to arise where a particular feature of a receiving country is said to be a reason why a visa cancellation should be revoked.

76    As counsel raised with the Court, there are circumstances where administrative decision-makers are entitled to draw on knowledge accumulated or formed in the course of making similar decisions: see, for instance, in the context of specialist tribunals, Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 at [7] and [12] per Gleeson CJ, [116] per McHugh J, [263] per Hayne J, [300] per Callinan J and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [180] per Hayne J. See also Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223 at [40] and [43]-[44] per Rares and Jagot JJ.

77    There have been recent decisions of this Court in which administrative decision-makers in contexts similar to this case were entitled to rely on their knowledge of features of other countries: Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [69] per Robertson J and McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [39] per McKerracher J. Conversely, there was a recent decision of this Court where an administrative decision-maker was not permitted to rely on such knowledge: Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162; 162 ALD 495 at [25]-[34] per Burley J. See also Anaki v Minister for Immigration and Border Protection [2018] FCA 77 at [24]-[25] per Burley J.

78    Although we express no view on these decisions, our view, which may be subject to more detailed consideration in an appropriate case, is that it is unlikely that a precise test may be formulated to prescribe the circumstances in which an administrative decision-maker may rely on general knowledge or accumulated specialist knowledge: see Dekker v Medical Board of Australia [2014] WASCA 216 at [63] per Martin CJ, Newnes and Murphy JJA. That issue, where it arises, is likely to be determined by reference to all the circumstances of the case, including, amongst other factors, the nature of the decision-maker, the extent and character of the decision-maker’s specialisation, and the form of the particular knowledge relied upon by the decision-maker.

79    Regardless, it is not necessary to determine in this case whether the Assistant Minister could rely on general knowledge or his accumulated specialist knowledge to make his finding about the availability of appropriate treatment and medication for depression and anxiety in Fiji. As explained, even if that finding was unsupported by evidence, it did not amount to a jurisdictional error.

80    For this reason, the first ground of appeal raised by the appellant must be dismissed.

Ground of appeal (2) – Consideration of ties or support in Fiji

81    The appellant’s second ground of appeal contended the following:

The learned primary judge erred in not finding that the Assistant Minister had failed to give appropriate consideration to the Appellant’s ties or support in Fiji, including counselling, resulting in immediate homelessness (at [56]).

Appellant’s submissions

82    The appellant highlights that the representations made by him, and on his behalf, to the Assistant Minister clearly framed his lack of family ties or support in Fiji as a central issue for consideration. The effect of the appellant’s representations was that he had nowhere to go in Fiji and nothing to live for. The appellant submitted that, notwithstanding the centrality of the risk that the appellant would not have a basic standard of living in Fiji until he could obtain employment, there was no apparent consideration in the Minister’s Reasons of the immediate homelessness and the human consequences which the appellant would suffer upon removal to Fiji. The appellant submitted the Assistant Minister never formed any conclusion in respect of these claims.

Minister’s submissions

83    The Minister accepted that the appellant made representations that he did not have any immediate family in Fiji or anything to go back to Fiji for. However, the Minister highlighted that the appellant did not in terms make a representation that he would be homeless if he returned to Fiji. Nonetheless, the Minister submitted that the primary judge was correct to find that the Assistant Minister had substantively considered the appellant’s representations about his lack of family ties or support in Fiji and homelessness.

Relevant principles

84    Representations made in response to an invitation by the Minister under s 501CA(3)(b) of the Act “as a whole constitute a mandatory relevant consideration under s 501CA(4)”: Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 at [121] per Greenwood, Charlesworth and O’Callaghan JJ, citing Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [56] per Robertson J; Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 (DRP17) at [47] per Jagot, Rangiah and Banks‑Smith JJ; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (Maioha) at [49] per Rares and Robertson JJ and Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 (Buadromo) at [41] per Besanko, Barker and Bromwich JJ.

85    Moreover, if a decision-maker under s 501CA(4) of the Act overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the decision-maker may, depending on the seriousness of the error, commit a jurisdictional error: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 at [30] per Rangiah J, cited in Hay v Minister for Home Affairs [2018] FCAFC 149 at [10] per Colvin J, with White and Moshinsky JJ agreeing and DRP17 at [47] per Jagot, Rangiah and Banks-Smith JJ; see also Maioha at [49] per Rares and Robertson JJ.

86    A number of these authorities were considered by the primary judge at first instance. Having surveyed the authorities, his Honour expressed at [47] the following summary of the key principles, which we respectfully adopt:

… it can be taken that a failure to consider or take into account matters of sufficient importance in the representations may amount to jurisdictional error either because it cannot be said that the required state of satisfaction has been reached in accordance with the section in all the circumstances, or because not to take such an important matter into account reflects a failure to take into account all the representations. One should be cautious about over reliance on textual taxonomical precision in this area. There will be jurisdictional error if material important in the representations has not been taken into account so as to make the purported exercise of the power not one that can be seen or characterised as being based on, or having taken into account, the representations as a whole. An evaluation of this will be context and circumstance specific. Textual formulae are of little assistance.

87    Moreover, in addressing a clearly articulated argument advanced by the person making representations, a decision-maker under s 501CA(4) of the Act is required to give active intellectual consideration to those representations: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 (Carrascalao) at [43]-[46] per Griffiths, White and Bromwich JJ and Buadromo at [42] per Besanko, Barker and Bromwich JJ. The person making the representations and submissions should not be left to guess what role material considerations have played in the decision: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1 (Lafu) at [49] per Lindgren, Rares and Foster JJ. This is particularly important where the consequences of these considerations have serious human consequences, such as deportation and exclusion from Australia: Hands at [3] per Allsop CJ, with Markovic and Steward JJ agreeing.

88    This, however, “does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant”: Carrascalao at [45]. And, importantly, decision-makers under s 501CA(4) of the Act are not required to consider a reason in favour of revocation not advanced by the person making representations to the decision-maker: Sowa v Minister for Home Affairs [2019] FCAFC 111 at [43] per Jagot, Bromwich and Thawley JJ, citing Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 362 ALR 9 at [79(3)] and [80] per Robertson, Moshinsky and Bromwich JJ.

89    Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall “on the wrong side of the line”, to quote Lafu at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons. What is required by a court upon judicial review is a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations made: Maioha at [45] per Rares and Robertson JJ.

Consideration

Representations advanced by appellant

90    The appellant clearly made various representations about the hardship that he said would arise as a result of lack of family ties or family support in Fiji. The appellant, or someone on his behalf, raised on a number of occasions in the material before the Assistant Minister that:

(a)    the appellant did not have any immediate family in Fiji (see representations extracted above at [19], [27], [31] and [32]); and

(b)    the appellant had nothing to live for in Fiji (see representations extracted above at [19] and [26]).

91    There is no point in the material before the Assistant Minister where the appellant expressly raised these matters as evidencing the possibility of immediate homelessness upon removal to Fiji. However, as considered further below, counsel for the appellant contended that, by inference from the above representations, the issue of immediate homelessness nonetheless arose squarely for consideration by the Assistant Minister.

Assistant Minister’s consideration of representations

92    For the purposes of determining whether the Assistant Minister gave appropriate consideration to these representations, salient principles may be drawn from the decision of the Full Court of this Court in not dissimilar circumstances in Maioha. In that case, the person seeking revocation of her visa cancellation—Ms Maioha—expressed in her personal circumstances form, amongst other things, the following about the threat of being removed to New Zealand:

… please describe your concerns and what you think will happen to you if you return.

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

93    The Assistant Minister decided not to revoke the cancellation of Ms Maioha’s visa. In relation the aspect of Ms Maioha’s personal circumstances form noted above, the Assistant Minister expressed the following in his reasons for that decision:

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

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

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

…

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

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

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

94    The Full Court in Maioha held that the Assistant Minister in these passages did have appropriate regard to Ms Maioha’s representations that she would have nowhere to live and no money if returned to New Zealand: Maioha at [46] per Rares and Robertson JJ and [70] per Flick J.

95    As raised by counsel for the appellant, there are some differences between the facts in Maioha and this case, both in relation to the manner in which representations were put and in the expression of the decision-maker’s reasons. Even so, what is most instructive for current purposes is not to examine the precise factual similarities and differences between the cases, but rather to highlight the principles underpinning the Full Court’s exercise of its judicial review function in Maioha. This may be done by reference to two key passages in the Full Court’s reasons.

96    First, Rares and Robertson JJ expressed the following in their joint judgment at [48]:

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

97    Then, Flick J, writing in a separate judgment, concluded as follows at [70]:

The Assistant Minister did give adequate and proper consideration to the submission advanced by Ms Maioha and did engage with that submission…. That conclusion is reached by reason of the fact that:

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

•    paras [44] and [49] of the Assistant Minister’s statement of reasons are to be construed as the Assistant Minister reaching a state of satisfaction by reference to each of the matters mentioned in those paragraphs – to read those paragraphs as a resolution of each of the matters mentioned, but as excluding from consideration the reference in para [45] to Ms Maioha having “nowhere to live and no money”, would be to interpret those reasons with an eye attuned to the detection of error rather than in a practical and common sense manner…

(Citations omitted.)

98    These passages illustrate three principles which also resonate in this case. First, in conducting judicial review of the reasons of a decision-maker, the court upon judicial review must retain an abiding appreciation of the ultimate statutory task that was faced by the decision-maker. Under s 501CA(4)(b)(ii), the issue for the decision-maker is whether he or she is satisfied that there was another reason why the original decision to cancel the visa should be revoked. Particular aspects of the reasons of the decision-maker must be viewed through that prism.

99    Second, and relatedly, the reasons of the decision-maker must be interpreted practically and with common sense, guided by the acknowledgment of the nature and context of administrative decision-making. Thus, in the words of the oft quoted injunction, “[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280 at 287 per Neaves, French and Cooper JJ, quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 66; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; see also Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] per French CJ, Bell, Keane and Gordon JJ.

100    Third, the reasons of the decision-maker must be construed consistently with a recognition of the minimal inquisitorial duties imposed on the decision-maker. The Minister is of course required to invite a person to make representations about the cancellation of his or her visa. But beyond that, a decision-maker, in the words of Rares and Robertson JJ in Maioha, has “no legal duty, referable to jurisdictional error, to ask for further representations … or to make inquiries into the representations”. As explained by Flick J in Maioha, the significance and characterisation of a representation is primarily within the control of the representor.

101    Applying these principles to the case now before us, our view is that, having regard to the manner in which representations were made by, or on behalf of, the appellant, and the Minister’s Reasons as a whole, the primary judge was correct to find that the Assistant Minister substantively considered the appellant’s representations about his lack of family ties or family support in Fiji, including the possibility that these may lead to homelessness.

102    The emphasis of the appellant’s submissions in respect of this ground of appeal, particularly those advanced at hearing, was the absence of any specific reference in the Minister’s Reasons to the possibility of imminent homelessness faced by the appellant upon return to Fiji as a result of the absence of any family ties or support in that country. Although counsel for the appellant accepted that the words of the appellant in his representations were few, counsel argued that the issue of immediate homelessness arose squarely for consideration by the Assistant Minister.

103    Although the appellant had pro bono legal representation before the primary judge and before the Full Court, the appellant was unrepresented at the time he was required to make representations in support of his request for revocation. And we accept that, where a person requesting revocation of a visa cancellation was unrepresented before the person or body determining the merits of that person’s request, a court upon judicial review may adopt a more relaxed approach to identifying and characterising the reasons advanced for revocation. This approach will correspondingly influence the identification and characterisation of the matters to which the decision-maker is required to have regard: see Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; 49 AAR 77 at [19]-[21] per Flick J. But the existence or not of legal representation will not be determinative of these matters, which “depend upon all of the circumstances of an individual case”: ibid at [19].

104    As noted, the appellant’s representations made no express reference to the threat of homelessness in Fiji. This may be contrasted, for instance, with the representations made in Maioha where Ms Maioha said she would have “nowhere to live” in New Zealand (see above at [92]). And we note that, even in those circumstances, the Full Court in Maioha held that the decision-maker in that case had given appropriate consideration to the matters raised by Ms Maioha.

105    Moreover, the representations made by, or on behalf, the appellant that may be argued to found an inference about the issue of homelessness in Fiji are sparse. Clear representations were made about the appellant not having any family members in Fiji but these representations were on their face primarily directed to the emotional burden of being removed to Fiji rather than a basis for highlighting the threat of homelessness. In these circumstances, it is unsurprising that the Minister’s Reasons failed to expressly refer to the threat of homelessness in Fiji.

106    Regardless, although the Assistant Minister did not refer to homelessness expressly, we agree with the primary judge’s view at [56] of his Honour’s reasons that the Assistant Minister’s finding at [31] of the Minister’s Reasons about the appellant being able to sustain a basic standard of living “to a degree dealt with any homelessness issue”. As such, our view is that the failure of the Assistant Minister to specifically refer to the threat of homelessness does not found a sufficient basis for concluding that the Assistant Minister failed to give appropriate consideration to the appellant’s lack of ties or support in Fiji.

107    Turning to the consideration of the lack of the appellant’s ties or support in Fiji more generally, the evidence of the Assistant Minister’s consideration of these matters is primarily derived from [28]-[31] of the Minister’s Reasons, as extracted above at [39]. At [28] of the Minister’s Reasons, the Assistant Minister discussed the relevance of the appellant’s depression and anxiety, as has already been discussed in the context of the first ground of appeal. The Assistant Minister recognised at [29] that the appellant does not have immediate family in Fiji, that he would not be able to see his Australian children if removed to Fiji, and that the appellant submitted that he “would not have anything to live for” in Fiji. The Assistant Minister acknowledged at [30] that this may lead to the appellant experiencing emotional hardship. However, the Assistant Minister expressed at [31] that several matters could mitigate this hardship: the appellant had knowledge of cultural and social norms in Fiji, spoke English, being one of Fiji’s official languages, and possessed work skills to assist him securing employment in Fiji “in order to sustain a basic standard of living”.

108    In concluding his decision, the Assistant Minister expressed that various factors weighed in favour of revocation of the cancellation of his visa. These included, as summarised at [56] of the Minister’s Reasons, the appellant’s “employment, volunteer and familial ties to Australia, and the hardship [the appellant], his partner and to a lesser extent his cousin will endure in the event the original decision is not revoked”. However, ultimately, the Assistant Minister determined at [56] that these matters were outweighed by the “unacceptable risk of harm to the Australian community and … the protection of the Australian community”.

109    These concluding remarks, in combination with the passages of the Minister’s Reasons relating to the extent of impediments to the appellant if removed to Fiji, reflect sufficient intellectual engagement with the appellant’s representations regarding his lack of family ties or support in Fiji. The Assistant Minister gave appropriate consideration to these matters but they were, in the Assistant Minister’s view, insufficient to tip the scale in the appellant’s favour. And, where the Assistant Minister acted lawfully and reasonably in the relevant sense, this Court is not entitled upon judicial review to impeach that balancing exercise.

110    Furthermore, as a final matter, we do not accept that, as contended by counsel for the appellant, the decision of Steward J in DFW18 v Minister for Home Affairs [2019] FCA 599 (DFW18) is a proper analogue to this case. The applicant in that case, who had a complex history of, amongst other things, substance abuse, mental illness, suicidality and other injuries, had advanced specific representations about, amongst other matters, the operation of Turkey’s social security system, his lack of family in Turkey, his lack of Turkish language skills, and his unfamiliarity with Turkish culture: see ibid at [43]. Having made cursory reference to these matters, the decision-maker concluded that the applicant would “face challenges in reintegrating with Turkish society, but these challenges are not insurmountable”: ibid at [11(3)]. In these circumstances, Steward J held at [54] that the decision-maker had failed to “make findings about material contentions”.

111    In short, the circumstances now faced by this Court on judicial review are materially different from those faced by Steward J in DFW18. To start, there are underlying factual differences which supported a potentially graver impact on the applicant in DFW18 than the appellant in this case. The appellant in this case did not make specific representations about social security entitlements in Fiji, the appellant does not lack language skills that could be used in Fiji and he is not unfamiliar with Fijian culture. Most importantly, however, is the manner in which the reasons of the respective decision-makers addressed the representations made. In essence, the quality of consideration by the decision-maker in DFW18 did not, in the view of Steward J, match the directness, specificity and depth of the representations made by the applicant in that case. In this case, our view, having regard to all relevant circumstances, is that the consideration by the Assistant Minister of the relevant matters appropriately corresponded with the character of the representations made by, or on behalf of, the appellant such as to evidence the requisite intellectual consideration by the Assistant Minister.

112    As such, the primary judge was correct to find that the Assistant Minister had substantively considered the appellant’s representations in respect of his lack of family ties or support in Fiji for the purposes of s 501CA(4) of the Act. The second ground of appeal raised by the appellant must accordingly be dismissed.

Conclusion

113    For the reasons set out above, the appellant’s appeal must be dismissed. The appellant will pay the Minister’s costs of and incidental to the appeal.

Associate:

Dated:        19 August 2019