Federal Court of Australia

Guclukol v Minister for Home Affairs [2020] FCAFC 148

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant, Mr Guclukol, arrived in Australia in 1971 as a seven year old and has resided here ever since. He did not obtain Australian nationality and, relevantly, his presence here has been pursuant to a Class BF Transitional (Permanent) Visa granted to him under the Migration Act 1958 (Cth) (the Act). He committed a number of serious offences in the period between 1987 and 1989 and one less serious offence in 1994. He was sentenced to several terms of imprisonment in respect of some of those offences and was incarcerated for more than 11 years. He committed several offences of violence in early 2015 against his former de facto partner and their children and, on 15 October 2015, he was sentenced to a further nine months’ imprisonment.

2    As he was required to do, the Minister cancelled the appellant’s visa under s 501(3A) of the Act (the Cancellation decision) on the basis that the appellant failed the character test in s 501(6). He failed that test because he had a “substantial criminal record” (s 501(6)(a)), having been sentenced to a term of imprisonment of 12 months [or more or to two or more terms of imprisonment where the total of those terms is more than 12 months]: s 501(7)(c) and (d). The appellant responded in writing to an invitation given under s 501CA(3) to make representations as to why the Cancellation decision should be revoked and he advanced a number of grounds as to why there was “another reason” within the meaning of s 501CA(4)(b)(ii) that the revocation should occur. The Minister concluded that he was not satisfied that any such reason existed with the result being that his power to revoke the Cancellation decision was not enlivened.

3    An application to this Court to review the Minister’s decision was dismissed by the primary judge on 7 February 2020. The appellant now appeals to this Court.

The grounds of appeal

4    The grounds of the appeal are relatively confined and, without doing the fully articulated grounds any injustice, they may be briefly described as follows:

(a)    That the primary judge erred in failing to detect a jurisdictional error in the Minister’s reasons where the Minister had allegedly made findings as to the existence of a social security system in Turkey without any evidential basis or because the finding was irrational or illogical.

(b)    That the primary judge failed to identify the jurisdictional error that the Minister failed to make a finding that the appellant would “struggle to subsist” in Turkey were he to be returned there, when that issue had been raised by the appellant as “another reason” why the Cancellation decision should be revoked. An alternative argument was that the primary judge wrongly found that the Minister had, in fact, made a finding in relation to this issue.

(c)    That the primary judge failed to find that the Minister had omitted to consider the appellant’s representations as to the threat to his existence should he return to Turkey and the representations concerning his medical history and conditions insofar as they related to his past offences.

relevant legislation

5    To the extent to which it is relevant, s 501CA 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.

…

 (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.

Ground One: the “no evidence” ground

6    By this ground the appellant submitted that the primary judge failed to identify that the Minister made a finding of fact as to the existence of a social security system in Turkey when there was no evidence to support that finding.

7    The appellant, by his lawyers, had provided written representations to the Minister on 16 September 2016, in support of his claim that the Cancellation decision should be revoked (the Written Representations). There he asserted that, were he to be returned to Turkey, he would not have the finances or a disability pension to fall back on, that his chances of successfully fending for himself were negligible, that his prospects of employment there were poor because his English language written skills were minimal and computer skills were non-existent. He also stated at [48] of his Written Representations:

The Applicant has had an ongoing back injury which has resulted in him not being able to perform many labour jobs. Before going to prison the Applicant had in fact been on a disability pension. Given his existing medical condition he is likely to struggle to find work that does not require him to be in a labour position in Turkey. The Applicant is only educated to a year 10 level so would not be qualified to perform any other types of job. Further, Turkey does not have the same social security system as Australia. If the Applicant returned to Turkey, he would struggle to subsist as a result of the limited number of occupations he can now perform as a result of his injury. He could not rely on the State or his family to support him when he returned.

8    In his reasons, the Minister dealt with this issue under the heading, “Extent of impediments if removed”. He commenced the recording of his deliberations in this respect by stating that he “had regard to the impediments that [the appellant] will face if removed from Australia to his home country of Turkey in establishing himself and maintaining basic living standards”. Thereafter, he considered the appellant’s age, length of residency in Australia, his medical conditions including a chronic and worsening back condition and dental pain, that his medical conditions amounted to a major medical disability, his lack of qualifications to perform work, his connection to Australia and his family’s residence here, his absence of any familial or social network in Turkey, that he has no home or place to live in Turkey, and that the appellant’s removal from Australia will have a detrimental impact on his health. In relation to these matters the Minister concluded:

66.     I acknowledge that Mr GUCLUKOL’s health issues and literacy difficulties are likely to be impediments to him obtaining employment and establishing a basic standard of living in Turkey. I also accept that his lack of familiarity with Turkish culture and language will be impediments to Mr GUCLUKOL integrating himself into the Turkish community.

67.     In light of Mr GUCLUKOL’s health and literacy issues, I consider he will be reliant to some extent on health and other support services. I find that Mr GUCLUKOL will have similar levels of access to any available health or other support services as that [sic] generally available to other Turkish citizens in the same position as Mr GUCLUKOL, although I recognise that any available services may be of a lower standard than those available to him in Australia.

9    The primary judge held that in these paragraphs the Minister had made no finding that there, in fact, existed a social security system in Turkey on which the appellant could rely, but merely that the appellant might avail himself of whatever services were available in the same manner as any other Turkish citizen. His Honour also noted that the Minister had identified that whatever services might be available might not be as generous as those available here in Australia.

10    The appellant’s essential contention in this regard was that the Minister made a finding of fact, at [67] of his reasons, namely that there existed a social security system in Turkey on which the appellant might rely. It was said that this was a jurisdictional error because there was no evidence to support it. In explanation to this Court it was submitted that the Minister’s statement that the appellant “will be reliant to some extent on health and other support services” and that he would have access to “any available” health and support services, incorporated findings as to both the existence of those services and their availability to the appellant.

11    These submissions are founded upon a misreading of the Minister’s reasons.

12    In the first instance, the statements in [67] cannot necessarily be taken as a reference to services provided by a government through a social security regime. The reference may be to any medical and other support services which are privately available. Although the Minister referred to the appellant’s Written Representations, which asserted that Turkey did not have the same social security system as Australia, that reference correlated to [48] of the Written Representations which discussed the existence of a disability pension, as opposed to health and other support services provided by the government. It follows that the underlying premise of the appellant’s submission, being that the Minister was referring to State-provided social services, is misplaced.

13    However, even if the reference in [67] concerned government-supplied health and other services, it cannot be said that the Minister made any finding as to the existence or otherwise of any such services in Turkey. The reference by the Minister to “access to any available health or other support services” did not presume the existence of those services. The use of the word “any” is indicative that he was not aware of whether such services existed. All that was being said was that, whatever services might exist, the appellant would have access to them to the same extent as any other Turkish citizen. Similarly, the Minister’s statement that he recognised “that any available services may be of a lower standard than those available to [the appellant] in Australia” did not presume that such services actually existed. To the contrary, it is an indication that it was not known whether such services existed.

14    There is, with respect, no foundation for the construction for which the appellant contended and the primary judge was correct to reject it.

15    The primary judge further held that, even if the Minister reached the conclusion which the appellant alleged, he would not have been in error in so doing. Before this Court the appellant submitted that the primary judge also erred in that analysis.

16    Before considering that submission, it is convenient to briefly consider the functional operation of s 501CA(4), despite the absence of any substantive submissions being provided to the Court on this issue. In Ali v Minister for Home Affairs [2020] FCAFC 109 (Ali), the Full Court assayed at [39] – [44] the recent authorities and concluded that the discretionary power in the chapeau to s 501CA(4) was conditioned upon the existence of two subjective jurisdictional facts, the second being the Minister’s satisfaction “that there is another reason why the original decision should be revoked”. It follows that, where the Court is called upon to ascertain whether a vitiating error has occurred in the course of reaching the required state of mind, the principles relating to subjective jurisdictional fact review, sometimes referred to as “Avon Downs principles”, are initially applicable. It may be that, once a vitiating error in the formation of the state of mind is identified, the subsequent purported exercise of power will involve a jurisdictional error due to the non-existence of the circumstance on which the power was conditioned. See generally, Derrington R, “Migrating Towards a Principled Approach to Reviewing Jurisdictional Facts” (2020) 27 AJ Admin L 70.

17    Where it is alleged that the required state of mind has been vitiated by reason of an erroneous conclusion of fact, the extent to which the fact-finding process is open to judicial scrutiny has been considered in a number of cases. Importantly, the analysis of fact-finding by the repository of power in forming a state of mind on which a power is conditioned is distinct from that applied to the fact-finding process engaged in in the course of the exercise of power. This distinction was recognised by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 where their Honours said at 624 [38] – [39]:

In dealing with that question two distinctions must be made. They are foreshadowed in what has been said earlier in these reasons. The first is that the first respondent does not assert any general ground of jurisdictional error of the kind disfavoured by Mason CJ where there were alleged deficiencies in what might be called “intra-mural” fact finding by the decision maker in the course of the exercise of the jurisdiction to make a decision. The apprehensions respecting “merits review” assume that there was jurisdiction to embark upon determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed. There the imperatives are the separation of powers considerations to which Justice Selway referred.

The second distinction concerns attacks upon the exercises of discretionary power which are said to be unreasonable in the sense attributed to Associated Provincial Picture Houses Ltd v Wednesbury Corporation. The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.

(Footnotes omitted).

18    In keeping with this view, that in the examination of facts on which a putative state of mind is founded a court is not limited to judicial review principles, it has repeatedly been recognised that the decision-maker’s satisfaction will be vitiated if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds”: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 657 [147]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1175 [52]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 998 [38].

19    In concluding that the Minister had not made any erroneous findings in relation to the existence of a social security system in Turkey, the primary judge relied on the observations of Robertson J in Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296. That was a case where the same issue had been raised, namely, whether there existed evidence of the presence and availability of social security services in a returning country. In that case, the Minister had said in his reasons that, in New Zealand, the applicant would have access to governmental benefits similar to those available to him in Australia. It had been argued that there was no evidence to support that conclusion. In this respect, Robertson J observed (at 310 [69]):

…that statement is no more than a broad proposition as to the availability of government benefits in New Zealand and not one that required evidence as to the amount of a benefit, the terms and conditions of that benefit or the eligibility criteria for that benefit.

20    The primary judge in the present case purported to adopt this approach and concluded that the Minister was not required to have before him evidence of the nature and scope of the health or other support services available to the appellant in Turkey. All that was required was that he have some basis for his conclusion that they existed. His Honour concluded that such a basis existed, being the statement at [48] of the appellant’s Written Representations to the Minister. In this respect the primary judge concluded that the reference to Turkey’s social security system was evidence on which the Minister was entitled to conclude that one existed. His Honour then relied on the observations of Moshinsky J in BSE17 v Minister for Home Affairs [2018] FCA 1926 (BSE17) where, in considering the ground of judicial review based upon the absence of evidence, his Honour said at [33]:

The “no evidence” ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]. Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39]-[41] per Gummow and Hayne JJ; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J.

21    The primary judge purported to apply that principle and accepted that the reference to the Turkish social security system in the appellant’s submissions was a “skerrick” on which the finding could be based. This approach was criticised by Mr Healer for the appellant who submitted that the statement in the written submissions could not be relied upon in that manner.

22    With respect to the primary judge it would appear that his Honour was led astray by the submissions on this issue. The question was not whether there was a skerrick of evidence which supported the Minister’s finding, because that question is directed to fact-finding in the course of the exercise of power: cf BSE17. The real question was whether a finding of fact made by the Minister for the purposes of the formation of the state of mind on which the power was conditioned was supportable. That question is answered by the principles found in the several decisions of the High Court to which reference has been made, which indicates the relevant inquiry is whether the finding of fact was not supported by some probative material or could not be supported on logical grounds. The requirement that the material averred in support of a finding be “probative” emphasises its quality in proving, supporting or establishing a finding of fact. A skerrick of material may support the existence of a fact in the sense that it is consistent with it, but it might not be positively supportive of its existence.

23    Even when it is accepted that an administrative decision-maker is entitled to rely upon material which does not reach the standard of evidence admissible in a court of law and, generally, may inform themselves in the manner in which they see fit, it is difficult to support the assumed finding that Turkey had a social security system from the formulation of words used by the appellant in his submissions. It is doubtful that such a statement can be seen to be probative of the actual existence of such a system. It may be doubted that it amounts to even a skerrick of evidence in support of that conclusion.

24    Ultimately, it is not necessary to reach any final conclusion on this matter. The validity of the Minister’s reasons did not depend upon there being any evidence of the existence of a social security system. He made no finding that one existed. He merely concluded that, it if did, it would be available to the appellant as a Turkish citizen.

25    Given the foregoing, Ground 1 of the appeal fails.

Ground 2 – alleged failure to make A necessary finding

26    The substance of the second ground of appeal was that the primary judge erred by failing to recognise that the Minister had omitted to make an allegedly necessary finding as to whether or not the appellant would “struggle to subsist” in Turkey. In part, this seemed to also support a submission that the Minister had failed to consider and address a contention which had been advanced by the appellant.

27    Mr Healer for the appellant submitted that the Minister’s obligations to make a finding about a ground advanced in support of the making of a revocation decision can be discerned from the decision of the Full Court in Minister for Home Affairs v Omar (2019) 373 ALR 569 (Omar). There, the Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) considered the Minister’s obligations under s 501CA(4), including to consider a ground which had been advanced as “another reason” for revoking a cancellation decision. In particular, attention was focused upon the factually and legally complex issue which arose when a party claimed that “another reason” in s 501CA(4) was that to return them to a receiving country would cause Australia to be in breach of its international non-refoulement obligations and on the related issue of the circumstances underlying the threat of harm to the applicant in the receiving country. An important contextual matter in which the case was decided was that it was the latest in a long line of cases dealing with those particular issues and the preceding cases disclosed that the Department of Immigration had, from time-to-time, slightly altered the pro forma reasons for decisions which it prepared for the Minister to “accommodate” earlier decisions. Nevertheless, a recurring theme of those decisions was that the Minister purported to defer consideration of Australia’s non-refoulement obligations as well as the question of whether the applicant was at risk of harm in the receiving country. It can be presumed that the departmental advice to the Minister had been that he was not obliged to consider these matters when performing his function under s 501CA(4), even if they were raised, and might defer any consideration to a later time. That advice was wrong: Ali.

28    In any event, in Omar the Court was again faced with an occasion where the Ministerial reasons set out the claims made in relation to Australia’s non-refoulement obligations. In that case the Minister went on to say (as set out in [21] of Omar):

Accordingly, I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr OMAR for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing the application.

29    The question which arose before the Full Court was whether the Minister had considered, in the proper legal sense, the issue raised by the appellant that he would be at risk of harm in the returning country were he to be returned. The Court discussed at length the requirement of a decision-maker to engage in an active intellectual process with significant and clearly expressed representations. In doing so, it cited with approval the observations of the Chief Justice (with whom Markovic J agreed) in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 (Hands) at 630 [3]:

The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

30    It might be observed that despite the reproach and opprobrium of the Full Court in Hands and subsequently in Omar of the use of formulaic expressions in Ministerial reasons to indicate consideration of important and significant issues, the Department contumaciously persists with its practice and thereby regularly leads Ministers into error and exposes them to criticism.

31    That aside, this was the context of the decision in Omar and, in particular, [39] of the reasons for judgment on which Mr Healer relied, being:

Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139; [2019] FCA 216 (Ezegbe) at [32]–[36] per Perram J).

32    Later in the reasons (at 587 [43]) the Court explained that the representation in issue in that case was of such central significance that the Minister was required to properly engage with it and make findings one way or the other about it because otherwise he was not able to assess its veracity.

33    In reliance on [39] of Omar, the appellant submitted that the Minister was obliged to make findings on whether he would “struggle to subsist in Turkey” because this ground was a very significant matter which had been expressly raised in his submissions, namely in [48] of the Written Representations, which is set out above.

34    In the course of his reasons, the Minister identified that he had regard to the impediments which the appellant would face if removed from Australia to Turkey in establishing himself and maintaining basic living standards. He specifically noted the appellant’s chronic back condition which was exacerbating over time. He observed that it arose from an injury which was sustained in 2008 and had become debilitating resulting in the appellant being unable to work. In this respect he referred to the content of a letter from the appellant’s doctor dated 4 June 2018 stating that the appellant has a major medical disability with his back, suffering with chronic back pain due to a lumbar disc prolapse. The doctor’s letter also recorded that the condition had improved following surgery although the pain affected the appellant’s ability to obtain work. The Minister also recorded that the appellant suffered from dental pain and was prescribed painkillers and medication to treat an ulcer. At [62] of his reasons the Minister set out the substance of the appellant’s representation in this respect as follows:

In the submissions of 16 September 2016, [the appellant’s lawyer] states that Mr GUCLUKOL is unable to perform labouring work due to his medical issues, and is unqualified for other types of work. She goes on to state ‘Turkey does not have the same social security system as Australia. If the Applicant returned to Turkey, he would struggle to subsist as a result of the limited number of occupations he can now perform as a result of his injury. He could not rely on the State or his family to support him when he returned’.

35    Thereafter, the Minister referred to the appellant’s statement that he would be unable to support himself in Turkey as, in addition to his health issues, he had limited ability with the Turkish language, literacy issues with both Turkish and English and he had nowhere to live there. He also referred to the statement of the appellant’s de facto spouse who stated that the appellant did not have a relationship with his mother who lived in Turkey such that he may end up financially destitute without any place to live in Turkey. She also said the appellant was dependent on her for support and that he would not survive in Turkey on his own.

36    In relation to the information and submissions concerning the appellant’s ability to sustain himself in Turkey, the Minister reached the conclusions set out in [66] and [67] which have been quoted above in the consideration of Ground 1.

37    The appellant submitted that those statements did not amount to a finding in relation to the ground that he would struggle to subsist were he to be returned to Turkey.

The primary judge’s approach

38    The primary judge accepted that the Minister was obliged to take into consideration the claims made by the appellant, including the representation that he would struggle to subsist were he to be returned to Turkey. However, he identified that the Minister was not always obliged to make findings in relation to each matter raised by an applicant. In support of this, he relied upon the observations of the Full Court in Minister for Home Affairs v Buadromo (2018) 267 FCR 320 (Buadromo) at 332 [46]:

Insofar as the primary judge is suggesting in [42] of his reasons (set out above at [29]) that a decision-maker is required to make a finding of fact with respect to every claim made or issue raised by an applicant, we do not agree. A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows. These are only examples and it is not possible to be comprehensive.

39    The primary judge identified that, in cases of this nature, an issue which frequently arises concerns the consequences, usually detrimental, which a person the subject of a cancellation decision will suffer if removed from Australia. He noted that consideration of such an issue requires a degree of speculation, often on imperfect and incomplete information, which does not usually permit of a definitive finding. He then observed that it was open to the Minister to make a finding one way or the other in relation to the issue or, alternatively, to conclude that even if the ground was made out it would not amount to “another reason” why the cancellation decision should be revoked. His Honour held that, in the circumstances of this case where the Minister made express reference to the ground and the supporting assertions, it could not be said that he failed to consider the appellant’s claim. He also found that the Minister did make a finding in relation to the issue raised in that he expressly acknowledged that the appellant’s “health issues and literacy difficulties are likely to be impediments to him obtaining employment and establishing a basic standard of living in Turkey”. As the primary judge observed, the finding was not in the terms of the ground asserted, being that the appellant would “struggle to subsist”, but the finding was, in substance, consistent with it.

The contentions of the parties

40    The appellant submitted that the primary judge erred by concluding that the Minister was not required to make a finding in relation to the assertion that he would struggle to subsist if he were returned to Turkey, as that was contrary to the ratio in Omar. Conversely, the respondent simply relied upon the reasons of the primary judge that the Minister made a relevant finding even though it was not necessary for him to do so in relation to this particular issue.

Consideration

41    The appellant’s reliance on the decision in Omar for the proposition advanced is misplaced. That decision does not require the Minister, when performing his function under s 501CA(4), to make a finding about every issue or ground raised by a party seeking the revocation of a cancellation decision. Indeed, the Full Court specifically indicated that whether a finding of fact needed to be made depended upon the particular circumstances of the case and “on the nature and content of the representations”.

42    The structure of s 501CA(3) and (4) shows that the Minister is required to give consideration to the grounds raised by the applicant in the representations made in support of the making of a revocation decision. That obligation is to consider the representations made to him as a whole: Minister for Immigration and Border Protection v DRP17 (2018) 267 FCR 492 (DRP17), 502 [47]; Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 (Maioha), 655 [49]: but there is no obligation to give separate consideration to the individual statements contained in the representations: Buadromo, 331 [41]; Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 (Viane), 537 [22] – [24] and 546 - 547 [69] – [73]. That said, it may sometimes be difficult to identify the difference between a claim made in a representation and a statement made as part of that representation, and the distinction may often be a matter of emphasis or degree. Much has been said recently in relation to this issue and the correct approach was succinctly identified by the Full Court (Flick, Griffiths and Moshinsky JJ) in EVK18 v Minister for Home Affairs [2020] FCAFC 49 at [14]:

The balance that is sought to be struck is to recognise that a “representation” which has been made pursuant to s 501CA(3) may contain a myriad of different claims and assertions and should not be dissected for the purpose of forensically and opportunistically subsequently seizing upon a failure to address a particular “statement” that may be found within a representation as exposing legal error (cf. BHA17 [2018] FCAFC at [139], (2018) 260 FCR at 562), whilst at the same time recognising that a “representation” may not be drafted with the skill of an experienced legal practitioner.

43    It might be apposite at this point to observe that the taxonomical lexicon utilised throughout the authorities is not always consistent. It is apparent that the expressions “ground” and “representation” appear to be used interchangeably as being separate and identifiable issues which either individually or together with other issues are advanced to support the existence of another reason why the original decision should be revoked. These are the “considerations” which the Minister must take into account in order to fulfil his statutory duty and the failure to do so will have the result that the state of satisfaction will not have been validly reached.

44    Mr Healer for the appellant attempted to magnify the import of the representation as to the appellant’s inability to subsist in Turkey by submitting that it equated to a submission concerning the appellant’s ability to exist. In this context he referred to the decision of Tamberlin J in SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143 (SZBQJ) which considered the question of subsistence in the context of “persecution” as that term was used in s 91R of the Act as it then was. His Honour had said at [11]:

Counsel for the appellant refers to s 91R(2) of the Act which refers to instances of serious harm for the purpose of considering whether there has been persecution within the meaning of the Convention. Among these instances are economic hardship that threatens the person’s capacity to subsist, denial of access to basic services where the denial threatens the person’s capacity to subsist and denial of the capacity to earn a livelihood of any kind where the denial threatens the capacity to subsist. The emphasis is on “subsistence”, which denotes the ability to continue to exist or remain in being.

(Emphasis in original).

45    With respect it is not helpful to rely upon authorities which have considered similar words in different contexts. In SZBQJ the issue being raised was an existential one for the person seeking asylum, but there is nothing in the representations made to the Minister in this case to suggest that the appellant faced any such similar risk of harm. As Mr Wood for the Minister submitted, when the representations are read as a whole, the appellant’s reference to “struggle to subsist” identified a danger that he would encounter diminished, if not severely diminished, living conditions were he to be returned to Turkey. The submissions had made clear that, despite his injuries, the appellant had continued to work, including while he was in prison. They had also indicated that, whilst his injuries prevented him from engaging in certain labouring jobs, he was able to undertake certain occupations. Therefore, the proposition being advanced was not that the appellant would not be able to work in Turkey but that his options for work were limited.

46    The appellant’s Written Representations to the Minister in this case referenced the issues identified in Direction No 65 issued pursuant to s 499 of the Act which provides guidance as to the factors which the Minister considers relevant to the functions to be performed under s 501CA(4). They articulated the arguments which the appellant sought to advance in relation to the issues of the protection of the Australian community, the expectations of the Australian community, and what was in the best interests of minors who might be affected by the appellant’s removal from Australia. A number of subtopics were specifically addressed in relation to these topics. Under the further heading “Other considerations” the Written Representations emphasised the appellant’s ties to Australia, especially his familial associations, the lack of any family relationships in Turkey, the impact on the appellant’s family of his removal, and the detrimental sequelae to the appellant of his removal to Turkey consequential upon his lack of education, illiteracy and poor physical health. The appellant formulated his claim in this respect as being that the necessary consequence of his personal and physical circumstances was that he would “struggle to subsist” in Turkey and the substance of Ground 2 is that this claim was not considered by the Minister.

47    The Minister’s reasons, and in particular [62] set out above, demonstrate that he was acutely aware of the way in which this claim was advanced and he specifically articulated it using the appellant’s language. Indeed, under the heading “Extent of impediments if removed”, the Minister also referenced the appellant’s poor physical condition including his pain and nerve damage resulting from a back injury which was described as “debilitating”, his dental pain and the ulcer medication he was required to take. After referring to the medical reports in respect of the appellant the Minister also identified the appellant’s assertions relating to his lack of family in Turkey, his lack of accommodation or any support there, his literacy issues, and his inability to speak Turkish. He also specifically referenced the statement of the appellant’s de facto partner to the effect that the appellant would not survive in Turkey on his own.

48    It was in this context that the Minister made the statements in [66] and [67] of his reasons which were his conclusions on the material relevant to the appellant’s submissions. In particular, his statement that he “acknowledge[d] that Mr GUCLUKOL’s health issues and literacy difficulties are likely to be impediments to him obtaining employment and establishing a basic standard of living in Turkey” was a general acceptance of the appellant’s representation that he would struggle to survive. It is axiomatic that if a person has impediments to establishing a basic standard of living, their position is one in which they would struggle to subsist. In this respect, the primary judge was correct to find that, not only did the Minister consider the appellant’s representation that he would struggle to survive, but he also made a definite finding about it and, in substance if not terms, accepted it. It follows there is no merit in the appellant’s submission that the Minister failed to make a finding in relation to that particular representation.

49    The primary judge also correctly concluded that there was no obligation on the Minister to reach a conclusion as to the veracity of the representation that the appellant would struggle to subsist were he to be returned to Turkey. As mentioned, observations in Omar do not require that the Minister make a finding in relation to every claim or ground raised in a representation made pursuant to s 501CA(3) of the Act. The Minister’s obligation is to take into account or consider the representations made by a person seeking a revocation decision. Generally that obligation is to give the issue raised real and genuine consideration by the application of an intellectual process which involves bringing one’s mind to bear upon the facts stated and the arguments put forward. In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at 363 – 364 [45], the Full Court said:

Subsequent cases have endorsed the principle that when a decision-maker is required by statute to consider a claim or other mandatory criteria, the decision-maker must engage in an active intellectual process directed at that claim or criteria (Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [47]-[54] per Lindgren, Rares and Foster JJ; SZVVR v Minister for Immigration and Border Protection (2016) 71 AAR 11 at [24]-[26] per Collier J; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2017) 344 ALR 511 (Telstra v ACCC) at [62] and [71] per Foster J; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 (Khadgi) at [57] per Stone, Foster and Nicholas JJ; AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10]-[11] per Bromberg J). This 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, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]).

50    There is nothing in this which suggests that a finding needs to be made in relation to each submission, argument or claim made by a person who has made representations under s 501CA(3) and it is far from apparent that the decision in Omar sought to depart from it. Indeed, that seems unlikely. The point there articulated was not that there existed any superadded duty on a Minister to make explicit findings about each claim, merely that, in some circumstances, the absence of a specific finding will support the conclusion that the claim was not considered. The nature of such circumstances was not articulated, but the reasons in Omar suggest (particularly at 586 [40]) that they include where the claim in question is an objectively significant or pivotal claim in relation to the state of mind to be formed or the power to be exercised.

51    Here, the assertion that the appellant would struggle to survive when understood in its context was not of that nature. It was one of a number of sub-issues advanced under the rubric of “Other considerations” which was, itself, one of a number of topics dealt with in the representations, each of which had several elements and claims. That is not to say that it was not an issue of some import. However, it was not of such pivotal relevance that it could be said that the absence of a finding in relation to it evidenced that it had not been considered.

52    Whilst the Minister is not obliged to make a finding in relation to each ground raised by a party in representations seeking the revocation of a cancellation decision, it is undoubtedly good administrative practice to, at least, express a conclusion as to each matter. Where, as here, the Minister’s task is to ascertain whether he has formed the state of mind of being satisfied there is “another reason” why the cancellation decision should be revoked, the deliberative process will involve weighing the relevant circumstances. Such circumstances include the claims made in the representations received by him and, absent some expression as to their veracity and influence on the issue at hand, the Minister may more readily be exposed to allegations that he has not engaged in an active intellectual process with them.

53    Given the foregoing, the primary judge was correct to conclude that the Minister did consider the appellant’s representation that he would struggle to subsist were he to be returned to Turkey and, indeed, had made a finding with respect to it. Ground 2 must also fail.

Ground 3 – Failure to consider representations

54    The first limb of this ground of appeal is closely related to Ground 2 and, in part, it has been dealt with in the above discussion. It is that the Minister erred by only considering the appellant’s representation that he would struggle to subsist to the extent that it related to his employment. In the appellant’s written submissions it was said at [26]:

However, and as observed above in respect of ground two, the Respondent considered the question of subsistence only (at most) to the extent it related to employment. The reasons do not indicate that the Respondent turned his mind to any of the other fundamental barriers to the Appellant’s subsistence, about which he made representations; for example, the fact that the Appellant cannot speak functional Turkish, has little or no family in Turkey, has no personal contacts in Turkey, and has chronic medical conditions.

55    As articulated there is no factual support for that submission. The Minister’s statement at [66] of his reasons that the appellant’s health issues and literacy difficulties will be an impediment to, inter alia, his establishing a basic standard of living, demonstrate that those factors were taken into account in relation to the conclusion relating to the appellant’s ability to subsist generally and not only in relation to his potential employment. The Minister went further and accepted that the appellant’s lack of familiarity with Turkish culture and language will be impediments to his integration in to the community. Not only did the Minister consider the factual issues raised by the appellant, he considered them in relation to the ground in respect of which they were advanced. It may be true that in his conclusory statements in [66] and [67] the Minister did not expressly state that the appellant’s absence of family in Turkey would be detrimental to his health, however, the Minister was not obliged to do so. As mentioned above, he was not obliged to make findings as to the veracity or potential relevance of each and every fact advanced by the appellant and the decision in Omar does not require it.

56    In any event, when the reasons are read as a whole and without a keen eye for error, it is apparent that the Minister did have regard to all of the matters raised by the appellant as to the impediments which he will face if removed from Australia. The Minister commenced that section of his reasons entitled, “Extent of impediments if removed”, with the following statement at [59]:

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 GUCLUKOL will face if removed from Australia to his home country of Turkey in establishing himself and maintaining basic living standards.

57    In the following paragraphs the Minister then identified those impediments raised by the appellant in his representations and, when the reasons are considered as whole, it is apparent the Minister generally accepted that the matters relied upon by the appellant would be impediments to him establishing himself and maintaining a basic living standard. The Minister variously says of those matters that he “notes” them, has “regard to” them, “considers” them, or has “taken them into consideration”. In the context of the reasons, these introductory words to each consideration are indicative of them having been taken into account on the issue of the impediments to the appellant sustaining a basic existence in Turkey. There can be no suggestion that any of the factors raised by the appellant were not considered in this respect. They were, and indeed the Minister concluded that they were likely to impede the appellant in obtaining employment or sustaining a basic standard of living.

58    The appellant’s submission that these claims in the representations were not considered must be rejected.

59    In relation to the second limb of Ground 3 the appellant submitted that the Minister failed to consider the appellant’s health conditions and, in particular, his chronic back pain in relation to his criminal history. As this ground was expanded upon in the course of the appeal, the complaint was that the appellant had made a representation that his prior medical condition, as distinct from his illicit drug use, was a cause of his offending or a mitigating factor, and that the Minister erred by failing to consider it.

60    It is, with respect, not easy to discern any clearly articulated representation or claim that the appellant’s medical conditions were causative of his criminal behaviour, independently of his use of illicit drugs. Under the sub-heading in the Written Representations entitled, “Circumstances of Offending”, the appellant’s lawyers referred to the most recent criminal convictions, being recklessly cause injury (3 charges), make threat to kill (3 charges) and unlawful assault, for which the appellant was sentenced on 15 October 2015 to 9 months imprisonment. At [25] of the Written Representations it was said:

We are instructed that part of the reason for the Applicant’s most recent offending was his drug use stemming from a debilitating back injury suffered in 2008. In support of this submission we have provided a copy of the Applicant’s medical records from the Carlton Medical Centre which show that the Applicant presented in May/ June 2008 with a prolapsed disc in his back. The Applicant had sustained this injury when he was lifting a heavy rug and subsequently attend at hospital. The severity of the injury is reflected in the fact that the Applicant was issued with a medical certificate for two months – from 2 June 2008 until 31 August 2008.

61    Later at [27] the cause of his latest offending was further explained:

As part of his struggle with chronic pain, the Applicant increasingly relied on his prescription medication and became addicted to the medication. This also coincided with use of crystal methamphetamine. While the Applicant fully appreciates that this does not justify his behaviour (particularly to those who he cares about most), the medical records do help to illustrate the circumstances that precipitated his offending.

62    In a statement dated 28 February 2017, which was also sent to the Minister, the appellant again connected his drug-taking to the commission of the offence for which he was sentenced on 15 October 2015. There he said:

I do not blame drugs for my offending but my ice use fuelled my actions. I was not able to get support for my addiction until I was in jail. I started using drugs when I hurt my back. As a labourer, I couldn't work after this and used drugs to cope with my unemployment.

63    There was no clear articulation in the appellant’s representations that a cause of his offending was his medical conditions, independently of the impact of his use of illicit drugs. The submission to the contrary was therefore without foundation and, it follows, the Minister committed no error by not dealing with it separately to, and isolated from, the deleterious effect of the appellant’s illicit drug taking.

64    In his consideration of the factors which were causative of the offending in 2015, the Minister referenced the above submissions and statements of the appellant. The Minister considered the circumstances of the appellant’s several serious offences as well as lesser offences including the possession and use of illicit drugs. With respect to the commission of those offences and the concurrent risk to the Australian community, the Minister identified the causal factors leading to some of the appellant’s criminal conduct. After so doing at [94] – [96] of his reasons, the Minister stated:

94. I have had regard to Mr GUCLUKOL’s letter of 28 February 2017, where he sates ‘I do not blame drugs for my offending but my ice use fuelled my actions. I was not able to get support for my drug use until I was in jail. I started using drugs when I hurt my back. As a labourer, I couldn’t work after this and used drugs to cope with my unemployment.’

95. I note Ms Ford’s statement that Mr GUCLUKOL’s drug use prior to his 2015 conviction ‘partly stemmed from a debilitating back injury suffered in or around 2006.’ I note medical records have been submitted to ‘illustrate the problems that he has suffered as a result of this back injury’. Ms Ford also states Mr GUCLUKOL has ‘suffered significantly from dental problems/infections,’ and goes on to note that ‘He appreciates that this does not justify his behaviour…’.

96. I do not consider use of illicit drugs a reasonable response to injuries or unemployment, and note Mr GUCLUKOL was convicted of a drug possession offence in 1994, prior to his medical issues. I accept Mr GUCLUKOL’s submission that his drug use contributed to his offending.

(Emphasis in original).

65    The Minister thereafter concluded that the appellant’s offending behaviour was caused by his antisocial values and attitudes, along with his use of illicit drugs.

66    From this it is apparent that the appellant’s submission that the Minister did not consider the causative effect of the appellant’s medical condition on his subsequent criminal behaviour cannot be sustained. The representation made was that the appellant’s medical condition, particularly his back injury, led him to engage in the use of illicit drugs and the use of those drugs contributed to his engaging in the offences for which he was sentenced in 2015. That was the representation considered by the Minister and he was correct to do so.

67    The appellant further submitted that the Minister only “noted” the statements in the Written Representations that the appellant’s drug use partly stemmed from his debilitating back injury and that the medical notes illustrated that issue. It was then submitted that merely “noting” those statements did not establish that they were taken into account or considered in the requisite sense. Reliance was placed on the Full Court’s decision in Omar at 585 [36](f) that formulaic statements to this effect were not sufficient to establish that a representation had been considered for the purposes of s 501CA(4). However, that submission misstates what was said in Omar either at the paragraph referenced, or at all. At [36](f) it was said that in the decision of Carrascalao it was held that statements by the Minister in his reasons that he had “considered”, “noted”, “accepted”, “recognised” or “had regard to” various matters in coming to his decision were not, in the particular circumstances of that case, to be viewed as conclusive. Whether the same conclusion could be drawn in any particular case depends on the relevant circumstances. In Carrascalao it was significant that the evidence showed that the Minister had very limited time in which to consider the detailed departmental briefs provided to him and an inference was drawn that the Minister did not have sufficient time to discharge the obligation placed upon him. That was an important contextual element in the observations on which the appellants relied. No similar circumstance exists in the present matter.

68    Mr Healer for the appellant referred to several parts of the decision in Omar, some of which ought to be mentioned. There, the Court observed that the legal obligation of the Minister to provide reasons arises from a combination of s 501G(1)(e) of the Act and s 25D of the Acts Interpretation Act 1901 (Cth). The effect of those provisions is that the Minister must provide reasons in which he is required to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. Whilst there appears to be no doubt about the content of the obligation, no ground of review or appeal was founded upon the failure of the Minister to comply with these obligations. The gravamen of the appellant’s complaints appear to be that the Minister did not make suitable findings on individual pieces of evidence or assertions on which he relied. In that respect it must be remembered that in Omar at 582 [34](e), the Full Court accepted that the representations as a whole needed to be considered but not that every statement should be considered a separate representation. In support of this the Court relied on the observations of Colvin J in Viane at 546 [69]:

All of which does not mean that each matter in the representations is a mandatory relevant consideration such that a failure to bring the consideration to account in performing the statutory task (that is, in forming the required state of satisfaction) would be a jurisdictional error. Such an approach would elevate a requirement to consider significant matters raised in representations to an obligation to form the required state of satisfaction by giving weight to each of the considerations raised in the representations.

69    The Full Court also referenced Colvin J’s comments in Viane at 546 [67]–[68] to the effect that the Minister must consider the representations made as to the existence of “another reason” to revoke the cancellation decision, and that he must have regard to the significant matters raised in the representations, being those which may, with other matters, carry such weight as to amount to another reason to revoke the decision. Mr Healer for the appellant also referred the Court to [39] of the decision in Omar, which is set out above, and the conclusion reached by the Court that, in the circumstances of the matter before it, the Minister was obliged to make specific findings about the appellant’s risk of harm were he to be returned to Somalia.

70    There is not, however, any general principle to be derived from Omar that in every case the Minister will not be taken to have “considered” a particular matter raised in representations made under s 501CA(3) of the Act unless a finding is made in respect of it. The Minister’s obligation is to give considerations to the representations when ascertaining whether he is satisfied that there is another reason why the cancellation decision should be revoked. It may well be that, where an important and contentious matter is raised, the absence of a finding about it will support an inference that it was not genuinely considered, but that proposition does not hold for other matters which are not contentious or significant.

71    The appellant also relied on DQM18 v Minister for Home Affairs [2020] FCAFC 110 where a similar submission was made in relation to the Minister’s use of the word “noting” in the assaying of the material before him. The Court (Bromberg, Mortimer and Snaden JJ) said of that form of expression at [45]:

The appellant contends that “noting” a matter may not equate to considering it. As we explain below, the use of that kind of language may or may not be significant, but it is not determinative of lack of consideration. All will depend on the context in which the language is used, and whether on a fair reading it can still be said the decision-maker actively engaged with the issues placed before her or him. The language used might be one indication of lack of active intellectual engagement; another might be whether findings of fact are made. However, the whole of the reasons, read in the context of the representations made and other information available, will need to be taken into account by the reviewing court.

72    The present case is a good example of where the use of the word “noted” carries with it much more than that the Minister was aware of the existence of the submission. Here the Minister’s statement that he “noted” the appellant’s claim that his debilitating back pain played a causal role in his subsequent use of illicit drugs, evidenced that it was a matter which was taken into account in assessing the consequences of the appellant’s offending. That is borne out by the conclusion in [96] of the Minister’s reasons. There, the Minister, prima facie, accepted that the use of illicit drugs was a consequence of the appellant’s injuries but concluded that it was not a reasonable response to those injuries. Not only did the Minister identify the appellant’s submission in relation to the cause of the appellant’s drug use and subsequent offending, he made a determination about its veracity or import in the circumstances of the case. By doing so he gave the submission genuine consideration and engaged in an active intellectual process directed at it. Moreover, not only did he assess the relevance of the appellant’s claim as a mitigating factor by remarking that illicit drug use was not a reasonable response to back pain, but he also assessed its authenticity by reference to the appellant’s drug use before he injured his back.

73    It necessarily follows that Ground 3 of the appeal also fails.

Conclusion on appeal

74    The appellant has not demonstrated any error in the reasons of the primary judge. The appeal must be dismissed and there is no reason why the appellant ought not to pay the respondent’s costs of the appeal.

Associate:

Dated:    4 September 2020