FEDERAL COURT OF AUSTRALIA
CKL21 v Minister for Home Affairs [2022] FCAFC 70
ORDERS
Appellant | ||
AND: | Respondent | |
DATE OF ORDER: | 5 may 2022 |
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders of the Court made on 27 August 2021 be set aside and in lieu thereof the following orders be made:
(a) There issue absolute a writ of certiorari directed to the respondent to quash the decision of 27 February 2020.
(b) There issue absolute a writ of mandamus directed to the respondent to exercise the power under s 501CA(4) of the Migration Act 1958 (Cth) according to law.
(c) The respondent pay the appellant’s costs of the proceeding before the Federal Court.
3. The respondent pay the appellant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
Introduction
1 This is an appeal from a judgment of a judge of this Court in relation to an application for judicial review of a decision of the respondent (the Minister) not to revoke the mandatory cancellation of the appellant’s Class BA Subclass 200 Refugee Visa.
2 The decision was made personally by the Minister pursuant to his power under s 501CA(4) of the Migration Act 1958 (Cth) (Act). The appellant sought judicial review of the Minister’s decision in this Court on the basis that the Minister’s decision was affected by jurisdictional error. The primary judge dismissed the application for review: CKL21 v Minister for Home Affairs [2021] FCA 1019. The appellant appeals against that decision.
3 An appeal to this Court is by way of rehearing, meaning that the appellant must demonstrate legal, factual or discretionary error by the primary judge: Allesch v Maunz (2000) 203 CLR 172 at [23] per Gaudron, McHugh, Gummow and Hayne JJ. In cases such as the present, the Court must determine whether the primary judge was correct to find that the decision of the Minister was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; see also AFD21 v Minister for Home Affairs [2021] FCAFC 167; 393 ALR 398 at [40].
4 By his notice of appeal, the appellant advanced three grounds of appeal, each of which reflects grounds of review that were advanced before the primary judge. In short, the appellant contends that the primary judge erred in failing to find:
(a) that the Minister erred by making a finding without a probative basis, namely that “Australia has a low tolerance of criminal conduct for people … who have been participating in, and contributing to, the community only for a short period”;
(b) that the Minister erred by making irrational findings of fact, or making findings that were legally unreasonable, about the appellant’s future risk of reoffending; and
(c) that the Minister’s decision was legally unreasonable or that the Minister failed to consider and apply the correct law by failing to weigh the legal consequences of s 197C of the Act when considering the possibility that the appellant may be refused a protection visa, or the effect of the appellant being possibly stateless.
5 For the reasons that follow, we accept the appellant’s second ground of appeal, but reject the first and third grounds. It follows that we allow the appeal, set aside the orders of the primary judge and make orders quashing the Minister’s decision and requiring the decision to be made again in accordance with law.
Background
6 The appellant was born in 1986 in Khartoum, North Sudan. His family fled from South Sudan before he was born. In 1997, he arrived in Australia aged 11 with his family, having fled from the civil war in Sudan. There is no evidence that the appellant holds citizenship of Sudan, South Sudan or any other country. All of his immediate family members and most of his extended family live in Australia.
7 In 2003, when the appellant was 17 years old, he was involved in a fight at Flinders Street Station in Melbourne, during which he stabbed and killed a teenager, also aged 17 years old. On 22 July 2005, the appellant was convicted of murder in the Supreme Court of Victoria and sentenced to 22 years’ imprisonment. On 30 January 2007, this sentence was reduced to 18 years by the Victorian Court of Appeal.
8 On 24 February 2017, a delegate of the Minister cancelled the appellant’s refugee visa under s 501(3A) of the Act. The delegate was satisfied that the appellant did not pass the character test because he was serving a sentence of imprisonment in Barwon Prison.
9 On 24 March 2017, the appellant made a request, through his legal representative, for revocation of the mandatory visa cancellation decision.
10 On 29 March 2018, lawyers for the appellant wrote to the Department of Home Affairs enclosing submissions and materials in support of the appellant’s request for revocation of the mandatory cancellation of his visa. The appellant’s representatives submitted that the following factors should weigh heavily in favour of revocation of the appellant’s visa cancellation:
• His effective statelessness, as it appears that his Sudanese citizenship would be revoked, yet he does not have evidence to prove that he is eligible for South Sudanese citizenship;
• His rehabilitation and the low risk of harm to the Australian community;
• The risk of indefinite immigration detention;
• His strong family support and networks in Australia;
• The difficulties his close family would experience, particularly his Mum who suffers from a number of medical conditions; and
• The impediments he would face if removed (in addition to the citizenship issues), including that he has never lived in South Sudan, hasn't lived in Sudan since he was young, has no family or support networks, and is now unfamiliar with the language and culture.
11 The materials enclosed with the submission included, among other things, a psychological assessment of the appellant by Dr Paul Grech dated 28 December 2017, a psychosocial report by Karen Chugg of the Victorian Foundation for Survivors of Torture Inc. dated 26 May 2005 (Foundation House Report) which reports on the traumatic experiences that the family experienced, various educational certificates, various rehabilitation and personal development course completion certificates, three letters of support from community organisations, nine letters of support from members of the appellant’s family, two medical reports, and the appellant’s approved visitors list at Barwon Prison.
12 On 25 February 2020, the Minister issued his decision in respect of the revocation of the appellant’s visa. The Minister was not satisfied that the appellant passes the character test (pursuant to s 501 of the Act), nor that there is another reason why the original decision should be revoked. The Minister concluded that the power in s 501CA(4) of the Act to revoke the original decision was not enlivened and the appellant’s visa would remain cancelled. The Minister enclosed his reasons for the decision.
Applicable legislation
13 Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if the person is serving a full-time custodial sentence and the Minister is satisfied that the person does not pass the character test because, amongst other things, of the operation of para (6)(a) (substantial criminal record) on the basis of para (7)(a), (b) or (c). Relevantly, para (6)(a), when read with para (7)(c), provides that a person does not pass the character test if the person has been sentenced to a term of imprisonment of 12 months or more.
14 Under s 501CA of the Act, a non-citizen whose visa has been cancelled under s 501(3A) of the Act may apply for the revocation of that decision. The section relevantly provides as follows:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
…
15 It was not contested that the appellant made representations pursuant to s 501CA(4)(a). The appellant accepted that he does not pass the “character test” provided by s 501CA(4)(b)(i). The issue before the Minister was whether there was “another reason” under s 501CA(4)(b)(ii) of the Act why the cancellation decision should be revoked.
16 Also of relevance to the present appeal, s 189 of the Act requires that unlawful non-citizens be detained in advance of removal from Australia. Section 198 provides that such removal must take place as soon as is reasonably practicable. At the time that the Minister made the non-revocation decision, s 197C provided as follows:
197C Australia’s non‑refoulement obligations irrelevant to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
17 With effect from 25 May 2021 (a date after the Minister made his decision), s 197C was amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (2021 Amendment Act) to introduce the following additional subsections:
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:
(a) the non-citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);
(iii) the non-citizen has asked the Minister, in writing, to be removed to the country.
(4) For the purposes of subsection (3), a protection finding is made for a non-citizen with respect to a country if a record was made in relation to the non-citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.
(5) For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):
(a) the non-citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);
(b) the non-citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;
(c) the non-citizen:
(i) would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non-citizen; and
(ii) satisfied the criterion in subsection 36(1C);
(d) the non-citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in paragraph 36(2)(a);
(e) the non-citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non-citizen;
(f) the non-citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non-citizen.
(6) For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country if:
(a) the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non-citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and
(b) a protection finding within the meaning of subsection (4) or (5) was made for the non-citizen with respect to another country.
(7) For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country in circumstances prescribed by the regulations.
(7A) For the purposes of subsection (3), if an unlawful non-citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
(8) For the purposes of subsection (5), it is irrelevant whether or not the non-citizen satisfied any other criteria for the grant of a protection visa.
(9) For the purposes of subparagraph (3)(c)(iii), a non-citizen who withdraws their written request to be removed to a country is taken not to have made that request.
Appeal ground one
18 By appeal ground one, the appellant contends that the primary judge erred in failing to find that the Minister erred by making a finding without a probative basis, namely that “Australia has a low tolerance of criminal conduct for people … who have been participating in, and contributing to, the community only for a short period” (at [58] of the Minister’s reasons).
The impugned reasons of the Minister
19 The impugned paragraph of the Minister’s reasons ([58]) appears under the heading “Strength, nature and duration of ties”, which commences at [48] of the Minister’s reasons. That section of the Minister’s reasons reads, in part, as follows (with the impugned statement in bold):
48. 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 [the appellant's] ties to Australia.
49. [The appellant] arrived in Australia on 9 December 1997, aged 11 years, and has resided in Australia for more than 21 years, considering Australia as his "home." I accept that he would have formed ties with the community through his attendance at a High School until Year 9, his participation in a dance group in Brisbane, his performances at African festivals and his attendance at a church with his family.
50. I accept that [the appellant] has family and social ties to Australia and remain mindful that [the appellant]'s parents, three sisters and a brother are Australian citizens while his other two siblings are permanent residents of Australia. I also keep in mind his extended family comprising of several nieces, nephews, aunts and an uncle who are Australians.
51. I note that [the appellant] has advised that his family and extended family remain supportive of him and that his parents, siblings and extended family members have regularly visited him in prison. He states that his parents gave him "the bestest (sic) support" in the 15 years that he has been in prison and that he is a better person now as a result of the support of his family.
52. I take into account the letters of support for [the appellant]'s request for revocation, provided by his parents [names redacted], his sister [name redacted], his brother [name redacted], his niece [name redacted], his aunt, [name redacted] and cousins [names redacted]. I note that they acknowledge [the appellant]'s offending and believe that his offending was out of character. I also take into account their respective pledges of unconditional and ongoing support for [the appellant] and acknowledge their request that he be allowed to remain in Australia.
…
57. I also keep in mind Fr. Don Edgar's submission dated 2 March 2019 addressed to me (to The Minister for Home Affairs), stating, that he remembers [the appellant] being “terrified” when he visited him in the “City Cells” and that his mother was particularly devastated, adding, “If a mother's tears means anything it is certainly true in this case.”
58. Given that [the appellant] has lived in Australia from a very young age, I hold the view that the Australian community may afford a higher tolerance of criminal conduct. Noting that on 22 July 2005, [the appellant] was convicted of murder and has been incarcerated since 17 October 2003, serving his sentence of 18 year of imprisonment, I find that Australia has a low tolerance of criminal conduct for people, such as [the appellant], who have been participating in, and contributing to, the community only for a short period.
59. I accept that [the appellant] belongs to a close knit family, that he has “significantly strong ties to Australia,” and that his family remain supportive of him. I have considered the effect of non-revocation upon the appellant's] immediate family in Australia and accept that those persons would experience emotional hardship and distress if he is removed from Australia.
Conclusion of the primary judge
20 The primary judge concluded that the appellant’s first ground must fail on the basis that (at [27]):
Read fairly and in context, the observation that [the appellant] seeks to impugn cannot be understood as a concrete factual finding reflective of some impossible synthesis or amalgamation of the views held collectively by the Australian community. On the contrary, it can serve as no more than a record of the Minister’s assessment of what those views are. It could hardly be controversial to observe that a minister of the executive answerable to the very community upon whose views he or she purports to act is well placed to make such an assessment. In this case, the assessment that was made seems very much to align with what would ordinarily go without saying: namely, that community reaction to serious criminality engaged in by a visa holder only a relatively short time (in this case, less than six years) after being granted the privilege of a life in this country is unlikely to be positive.
Appellant’s submissions
21 In respect of appeal ground one, the appellant submitted that the Minister’s finding at [58] suffered from two interconnected flaws. First, the appellant submitted that it is vague, querying the meaning of the words “Australia”, “participation” and “community” in the Minister’s finding, as well as the length of a “short period”. The appellant submitted that the scope and meaning of the finding was unclear, in turn making any determination as to its correctness, or any attempt to disprove it, almost impossible unless one could clarify the scope and meaning through another context in an identified source.
22 Second and relatedly, the appellant submitted that the finding was based on no identified source. The appellant submitted that that fact alone is sufficient to reveal jurisdictional error, unless the finding can be said to fall into the category of information that is within the Minister’s “personal or specialised knowledge, [or alternatively] a matter commonly known”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 (Viane) at [20]. The appellant submitted that there is nothing to suggest that the finding made by the Minister falls within any of these categories of knowledge. It follows that this finding is one made “without evidence” even in the broadest sense.
23 The appellant further submitted that while the power being exercised by the Minister in this case was a discretionary power, it must be exercised rationally, especially when express, adverse findings are made: see Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 (Splendido) at [100] and [111] per Mortimer J, with whom Moshinsky J agreed. The appellant submitted that here, no probative basis was offered by the Minister, and none of the foregoing exceptions were engaged. It follows that the Minister’s finding was affected by jurisdictional error.
Minister’s submissions
24 The Minister observed that the topic of the “expectations of the Australian community” was first addressed in the Minister’s reasons at [20] to [24], where the Minister expressed the conclusions that the Australian community would expect non-citizens to obey Australian laws while in Australia and that, given the very serious nature of the offences committed by the appellant, the Australian community would expect that the appellant should not hold a visa. The Minister noted that the appellant does not challenge those conclusions, and only challenges the statement to similar effect at [58].
25 The Minister submitted that, fairly read, the second sentence of the Minister’s reasons at [58] refers to the Australian community. The Minister submitted that this coheres with the immediate context of the Minister’s reasons, noting that the first sentence of [58] specifically refers to the “Australian community”. Further, the Minister submitted that the reasons clearly refer to the Australian community as a whole, rather than some particular “sector” or “part” as the appellant alleged.
26 The Minister submitted that the expression of a conclusion as to the expectations of the Australian community as a whole is not a “finding of fact” for which evidence could be provided, relying upon the observations made in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR) by Charlesworth J at [66] and Stewart J at [87]-[88]. It is open to the Minister, who is responsible for the administration of the Act, and who is answerable to the people through Parliament, to express an evaluative judgment about what the Australian community tolerates. The Minister submitted that nothing in Viane cuts across these principles.
Consideration
27 We do not accept the appellant’s first contention that the scope and meaning of the impugned finding at [58] is unclear. It is well established that the Minister’s reasons should not be read “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 271 per Brennan CJ, Toohey, McHugh and Gummow JJ. We accept the Minister’s submission that, fairly read, the second sentence of the reasons at [58] refers to the Australian community.
28 Nor do we accept the appellant’s second contention that the impugned finding at [58] required evidence. It is the expression of an evaluative judgment about what is tolerated by the Australian community; an assessment that the Minister, as an elected representative, is capable of making.
29 The foregoing conclusion is consistent with the accepted judicial understanding of the same consideration which is required to be taken into account when a non-revocation decision under s 501CA(4) is made by a delegate of the Minister (or the Administrative Appeals Tribunal on review of such a decision). For many years, by successive ministerial directions issued pursuant to s 499(1) of the Act (currently Direction No 90), a delegate making a decision under s 501CA(4) has been required to take into account the expectations of the Australian community, as explained in the ministerial direction. As Bromwich J observed in Afu v Minister for Home Affairs [2018] FCA 1311 (Afu) at [85], “[t]he concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community”. To similar effect is the statement of Charlesworth J in FYBR (at [66]) that “there does not exist in fact an Australian community holding a homogenous view as to the preferred outcome in any one particular case”. In the same case, Stewart J observed (at [87]) that:
… there are no homogeneous, or even significantly homogeneous, or possibly even predominantly held, Australian “community expectations” with regard to applicable norms for the refusal or cancellation of visas on character grounds, nor with regard to the outcome in any particular case where the refusal or cancellation of a visa is up for consideration. It is notorious that immigration generally, and immigration by way of refugee status and for humanitarian reasons, in particular, is a highly contested issue in the Australian community. There are very different and strongly held views, and hence expectations, and there is no ready mechanism by which such expectations can be ascertained or measured.
30 It is to be understood that, in taking account of the expectations of the Australian community, the Minister is in fact taking account of the Minister’s conception of those expectations. As explained in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 (Djalic) (in respect of the application of s 501(2)): “[t]o take account of community expectations is to give effect to the Minister’s conception of the public interest” (at [74]). The Minister cannot, of course, take account of community expectations which are formed in ignorance of all relevant facts. Community expectations would only be relevant to the Minister’s decision if and in so far as they were based on a full understanding of all relevant facts and circumstances. It follows that, when taking into account community expectations, the Minister must base his conception of community expectations on fully informed expectations; that is, what the Australian community would expect if, like the Minister, it were informed of all relevant facts and circumstances. In determining the Australian community’s expectations, the Minister does no more than form an opinion about those expectations, based on all relevant facts and circumstances, as the elected representative of the community empowered to make the revocation decision.
31 It follows that the principles referred to by the High Court in Viane have no application to a finding concerning the expectations of the Australian community.
32 As noted above, the appellant did not seek to impugn the Minister’s conclusions at [23] to [24] of the reasons. It is convenient to reproduce those paragraphs, which are located below the heading “Expectations of the Australian community”:
23. Notwithstanding the above mentioned reasons submitted on behalf of [the appellant], I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the original decision to cancel the visa of such a person. [The appellant] has breached this trust as he has been convicted of a very serious crime, that of murder in Australia, which attracted a lengthy term of imprisonment. Additionally, he has been convicted of possess controlled weapon without excuse. [The appellant’s] offending has involved violence and the use of a weapon, which I find the Australian community would regard with significant concern. The seriousness of this conduct would be weighed by the community against the countervailing factors detailed above.
24. Given the very serious nature of these offences committed by [the appellant], I conclude that the Australian community would expect that [the appellant] should not hold a visa.
33 The appellant accepted in oral submissions that the findings at [23] and [24] are a matter of evaluative judgment that the Minister is capable of making, but sought to distinguish those paragraphs from the finding at [58], citing the specificity of the finding in [58], and the reference to the group of people who have been participating in and contributing to the community only for a short period. The appellant also submitted that the finding at [58] is not a finding about community expectations, this having been dealt with under a separate heading (which covered [23] and [24]). The appellant pointed to the fact that the impugned paragraph is under a separate heading (“Strength, nature and duration of ties”) and sought to contend that the nature of this finding is not the type dealt with in the cases of Afu and Djalic.
34 In the context of the Minister’s reasons, we consider that the finding at [58] is to be understood as the repetition of the Minister’s earlier finding (at [23]) that the Australian community would regard a crime of the nature committed by the appellant with significant concern. The Minister brings that factor to bear in his assessment of the appellant’s ties to Australia. There is no error in doing so. We do not accept the distinction that the appellant seeks to make between these findings. While one refers to the “expectations”, and the other refers to the “tolerance”, of the Australian community, both represent the Minister’s assessment of the Australian community’s values.
35 We therefore reject appeal ground one.
Appeal ground two
36 By appeal ground two, the appellant contends that the primary judge erred in failing to find that the Minister erred by making irrational findings of fact, or making findings that were legally unreasonable, about the appellant’s future risk of reoffending, namely by:
(a) finding that the appellant was an “unacceptable risk” to the community despite the only evidence before him being from an expert to the opposite effect;
(b) finding that the appellant was an “ongoing risk” because he would lack “immediate support” in the community despite the Minister repeatedly finding that the appellant has extensive, ongoing and wide support in the community;
(c) finding and/or giving weight to a finding that the appellant’s “conduct has not been tested in the general community”, despite the impossibility of that by reason of his extended imprisonment for all of his adult life; and
(d) considering the appellant’s conduct as a 17 year old boy as a reliable predictor of his future conduct as a middle-aged man.
The impugned reasons of the Minister
37 The Minister’s reasons contained a section with the heading “Risk to the Australian community” which commenced with paragraph [72] as follows:
I have considered whether [the appellant] poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps [the appellant] has undertaken to reform and address his behaviour. I have also taken into account [the appellant's] overall conduct in the custodial and non-custodial environment, and his insight into the offending.
38 At [73]-[96] of his reasons, the Minister canvassed a number of considerations with respect to the risk posed by the appellant (as summarised in [72]), including the appellant’s submissions as to his remorse, the appellant’s history of offending (all minor and non-violent in nature with the exception of the murder charge), statements in the psychologist’s report and the Foundation House Report regarding experiences endured by the appellant and his family which were likely factors in his offending, the judge’s sentencing remarks similarly citing mitigating circumstances in the appellant’s case, the family and community support (evidenced by multiple letters of support) available to the appellant, the psychologist’s assessment that the appellant has excellent prospects for long term rehabilitation and the appellant’s voluntary completion of several rehabilitation and personal development courses, as well as completion of units towards a number of TAFE qualifications.
39 At [97], the Minister observed that the trial judge, when sentencing the appellant on his conviction for murder:
… also expressed some reservations about the prospects of [the appellant]'s rehabilitation in light of the fact that [the appellant] was on bail at the time of the murder in September 2003, and found it to be of particular concern, remarking that, "It indicates a blatant disregard by you for the system of law under which bail was granted to you. It suggests that you have small regard for the law and little intention of obeying its commands. To that extent and in that way the fact that you committed this murder while on bail does undermine, to some extent at least, any confidence in your ultimate rehabilitation."
40 At [99], the Minister concluded:
In assessing whether [the appellant] poses a risk to the Australian community through reoffending, I take into account [the appellant]'s remorse of his actions and find that although [the appellant] was found guilty by a jury, [the appellant] has had time to reflect upon his actions and seems genuinely remorseful for the harm he has caused to the victim, the victim's family and the community. I have also taken into account the mitigating circumstances of his offending and accept that [the appellant] committed his most serious offence as a minor for which he continues to serve a significant term of imprisonment. I find that [the appellant]'s experiences as a child, fleeing his country with his parents and ultimately coming to Australia to settle as refugees would have been overwhelming and traumatic as submitted. I accept that being bullied and discriminated would also have been hard and that he may have fallen into bad company and started abusing drugs and alcohol. I also accept that the loss of his brother would have been difficult for [the appellant]. While I acknowledge the mitigating circumstances of his offending, I do not find the mitigating circumstances of [the appellant]'s offending excuse or detract from, the seriousness of his offending.
41 In a separate section titled “Finding”, the Minister went on to conclude (at [100]-[101], emphasis added):
100. [The appellant] has been convicted of a very serious offence namely murder, ‘the most serious crime known to our system of justice, involving as it does the intentional and unjustified taking of the life of another’. I find a wide range of factors will play a protective role and have the effect of reducing [the appellant’s] risk of reoffending. Those factors are set out by [the appellant] and his representative, and I have paid attention to matters such as generally good behaviour in prison, his participation in voluntary programs, completion of rehabilitation and development courses, the familial and community support available to [the appellant] and his insight. I am satisfied that [the appellant] has made progress at rehabilitation. However, [the appellant's] conduct has not been tested in the general community, where he will have much less supervision and immediate support should any crisis occur. With this in mind I remain guarded about the risk of [the appellant] relapsing into substance abuse if released into the community.
101. Based on the evidence before more [sic], I find that there is an ongoing risk that [the appellant] would reoffend. I consider that should [the appellant] reoffend in a similar manner, it could result in physical and psychological harm to a member of the Australian community.
42 In the final section of the reasons, the Minister reached the following conclusions in respect of the appellant’s risk of reoffending (at [109]-[111], emphasis added):
109. Further, I find that the Australian community could be exposed to significant harm should [the appellant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the appellant].
110. I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by [the appellant], than I otherwise would, because he has lived in Australia from a very young age of 11 years.
111. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the appellant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and ties; his claims that he will suffer hardship and harm if returned to Sudan or South Sudan; his claims of statelessness and international non refoulment obligations; his familial ties to Australia; and the hardship [the appellant], his family and social networks will endure in the event the original decision is not revoked.
Conclusions of the primary judge
43 The primary judge rejected the equivalent ground of judicial review on the following bases.
44 First, the primary judge considered that the Minister was entitled to assess the question of risk from the perspective of both the likelihood that the appellant might reoffend in the same manner that he had previously and the gravity attached to offending of that nature (at [35]). The Minister had noted the undeniable gravity of the appellant’s criminal history and the necessarily speculative nature of the evidence as to whether he might reoffend in the future (at [36]). The primary judge concluded that it could not be said that any of these findings lacks an evident or intelligible justification or can otherwise be impugned as legally unreasonable (at [37]).
45 Second, in respect of the appellant’s submission that the Minister’s finding that he would lack “immediate support” in the community overlooks the evidence of the extensive community and family support available to him, the primary judge found that this submission proceeds on an unfair reading of the Minister’s reasons. The primary judge observed that the impugned paragraph of the Minister’s reasons simply observed that the appellant was supervised whilst in prison and had an obviously limited opportunity to relapse into substance abuse or criminal misbehaviour. To observe as much was not to misstate or misunderstand the extent of the appellant’s family or community support (at [43]).
46 Third, the primary judge considered (at [46]) that there was nothing unreasonable in the Minister’s reliance upon the fact that the appellant’s positive conduct while in prison had not been tested in the general community. The Minister’s observation was to the effect that the appellant’s conduct in prison, while commendable, was not definitive as to the level of risk that he might pose to the general community. The primary judge considered that this reasoning is evident and intelligible.
47 Finally, the primary judge considered (at [48]) that there was no suggestion in the Minister’s reasons that he was unaware of the appellant’s age at the time of his offending, nor that it took place in 2003. The primary judge considered that the Minister was plainly conscious of both of these things.
48 The primary judge concluded (at [50]) that none of the Minister’s reasoning was attended by legal unreasonableness in any of the ways alleged by the appellant.
Appellant’s submissions
49 The appellant submitted that the Minister made irrational findings of fact in ways relevant to the ultimate finding that the appellant would present an “unacceptable risk” to the Australian community if he were to be released. The appellant submitted that legal unreasonableness is a conclusion which may be applied to “a decision which lacks an evident and intelligible justification”, citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [76] per Hayne, Kiefel and Bell JJ and Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [23] per Dawson J.
50 The appellant observed that the Minister noted that a specialist assessment of the appellant’s risk of reoffending concluded that he presented a “minimal risk of re-offending” and was not an unacceptable risk to the community. At no point was the view of that expert contradicted by other evidence, and nor was the expert’s credibility put into doubt. Despite this, the Minister relevantly found that the appellant represents “an unacceptable risk of harm to the Australian community”, that “based on the evidence before [him] …. There is an ongoing risk that [the appellant] would reoffend”, and the Minister “could not rule out the possibility of further offending by [the appellant]”. The appellant submitted that the Minister thus made a finding that cannot be reconciled with the only expert evidence that was before him, and thereby fell into jurisdictional error by making a legally unreasonable finding of fact (relying on DZT18 v Minister for Home Affairs (2019) 166 ALD 478 at [17], [20] and Ogbonna v Minister for Immigration and Border Protection (2018) 261 FCR 385 (Ogbonna) at [47]).
51 The appellant submitted that, in the only substantive paragraph under the heading “Finding” in his reasons, the Minister stated:
[The appellant’s] conduct has not been tested in the general community, where he will have much less supervision and immediate support should any crisis occur. With this in mind I remain guarded about the risk of [the appellant] relapsing into substance abuse if released into the community.
52 The appellant submitted that this finding was again contrary to evidence that he had accepted, including that the appellant had not used alcohol or drugs for over 14 years while imprisoned. The appellant submitted that this finding also lacked any evidentiary foundation: all of the appellant’s immediate family members and most of his extended family are Australian citizens; the appellant maintained weekly contact with his immediate and extended family, including his eight nieces and nephews, during his incarceration; and he has been financially and emotionally assisted and supported by his parents.
53 The appellant submitted that the primary judge in effect affirmed the Minister’s decision on the basis of the nature of the offence alone, where the offence alone was not the issue; the question was the risk of the appellant reoffending and on that question there was uncontradicted, specific expert evidence. The appellant argued that the lack of being tested in the community is not a rational foundation for finding “unacceptable risk”, relying on Splendido at [95] per Mortimer J, with Moshinsky J agreeing at [113]. The appellant further argued that the primary judge’s analysis that “there [is] always” a risk a person may reoffend, and that that risk would have to be “extinguished” for the Minister’s finding to have no basis reveals error. The appellant argued that the conclusion that there is a risk of reoffending in every case cannot rationally be a basis not to revoke cancellation; if it were, it would apply in every case and would make the exercise of the broad discretionary power meaningless.
54 The appellant submitted that there was no reconciliation in the Minister’s reasons between his findings that there is extensive family and community support for the appellant, and his ultimate finding that the appellant would have “much less … immediate support” in the community as compared with in detention. The appellant submitted that the evidence was that he had none of this support in detention; and to the contrary, he would have access to this support outside of detention.
55 The appellant submitted that culpability for offences by children is coloured by considerations not relevant if the same offence is committed by an adult. Key among those considerations is the child’s “education and the environment in which the child has been raised”: RP v The Queen (2016) 259 CLR 641 at [9], [12]. In this regard the appellant cited his extremely underprivileged childhood, and the fact that youthful offenders are often considered to deserve greater leniency for reasons of reduced moral culpability by reason of immaturity and a less than fully developed capacity to control impulsive behaviour: see, e.g., Bradley v The Queen [2017] VSCA 69 at [91]. The appellant submitted that his young age was a significant and obvious feature of his offending, as the Victorian Court of Appeal had observed – stating that although the crime was serious, the appellant “was a teenager and the product of a culture of violence and deprivation … [whose] youth should have rendered his rehabilitation a consideration of the first importance”. The appellant submitted that the Minister’s application of criteria relating to adult offenders with no adjustment for the fact that the appellant was a child offender is contrary to law. The appellant argued that the Minister’s reasons failed to take into account established principles regarding child offenders, and irrationally assumed without a proper basis that the appellant’s conduct as a 17 year old boy is a reliable predictor of his future conduct as a middle-aged man, relying (by analogy) upon the following observations of Markovic J in Kemp v Minister for Immigration and Border Protection [2018] FCA 1106 at [44]:
The Assistant Minister’s reasoning proceeds by way of a false comparison in that the Assistant Minister seeks to rely on [the offender]’s conduct at a time when he did not have any known physical or mental impairments to make a finding about his prospects of re-offending in the future when he has both physical and mental impairments as a result of various medical conditions. Such an analysis or comparison would only be logical where it could be assumed that [the offender]’s circumstances were unchanged. But that is not the case here.
Minister’s submissions
56 The Minister submitted that none of the appellant’s various criticisms of the Minister’s reasoning and findings are sustainable, or supportive of a claim of jurisdictional error.
57 First, in respect of the appellant’s criticism regarding the Minister’s finding that the appellant was an “unacceptable risk” to the community despite contrary evidence, the Minister submitted that this claim suffers from a similar vice to that which infected the first ground of appeal; namely, a failure to acknowledge the distinction between fact and value judgment. The Minister submitted that the Minister’s statement at [20] of the reasons (that, in Dr Grech’s professional opinion, the appellant is not an unacceptable risk to the community) is best understood as summarising the gist of the appellant’s submissions based on Dr Grech’s report; Dr Grech did not opine that the appellant was not an “unacceptable risk to the community”. The Minister submitted that, in any event, whether the appellant poses an “unacceptable risk” involves a value judgment for the Minister, and not one on which Dr Grech had any expertise or in respect of which any such view expressed by him must be accepted by the Minister unless contradicted by other evidence. As to substance abuse, the Minister noted that Dr Grech had himself included in his “Background to assessment” that the appellant had been affected by alcohol and cannabis at the time of his offending in 2003. The Minister submitted that the absence of reference to that in the sentencing remarks of the Court of Appeal does not preclude the Minister’s reliance on this as evidence of the appellant’s use of alcohol or drugs at the time of his past offending, let alone that future use may elevate the risk of future offending.
58 Second, in respect of the Minister’s finding that the appellant was an “ongoing risk” because he would lack “immediate support” in the community, the Minister had accepted that a “wide range of factors will play a protective role and have the effect of reducing [the appellant’s] risk of reoffending” (see [100]). However, in the same paragraph, the Minister noted that the appellant had been “convicted of a very serious offence namely murder, the most serious crime known to our system of justice, involving as it does the intentional and unjustified taking of the life of another”. The Minister submitted that the Minister’s reasons qualified the acknowledgement of the factors positively pointing to the prospects of the appellant’s rehabilitation (at [100]-[101]).
59 The Minister submitted that he is entitled to approach his task by appreciating the combined likelihood and gravity of reoffending. Where, as here, the appellant has committed the most serious of crimes, the Minister is entitled to approach his task on the basis that any risk of reoffending is unacceptable (relying on BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153 (BMX15) at [26]-[27] per Bromberg J and the cases there cited). The Minister submitted that this approach reflects the principle in cl 6.3(4) of Direction 79 (now Direction No 90) that “[i]n some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable”. The Minister also relied on the statement of the Full Court in YKSB v Minister for Home Affairs [2020] FCAFC 224 (YKSB) at [14] that evidence which “entirely eliminated any risk of reoffending so as to bypass” the principle reflected in cl 6.3(4) of Direction 79 would be “hard to come by”. The Minister submitted that this was the approach adopted by the Minister in the present case. It was open to the Minister to conclude that the appellant posed a risk of reoffending. The principles of rationality or reasonableness do not require the Minister, when making an evaluative decision of the kind at issue here, to set aside, ignore or place no weight on a low risk of reoffending that would, if the reoffending did occur, result in particularly grave consequences (relying on BMX15 at [29] and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton) at [16]-[17]).
60 Further, the Minister submitted that contrary to the appellant’s submissions it was open to the Minister to find that the appellant would have “much less supervision and immediate support should any crisis occur” (at [100]). The Minister submitted that, at this point in the reasons, the Minister was referring to the kind of immediate institutional supervision and support (including medical and security) that is available to a person in criminal custody or immigration detention as compared to in the community; the Minister clearly appreciated that the appellant would have family and certain community support if released from detention.
61 Third, the Minister submitted that contrary to the appellant’s submissions, it is not the case that it is irrational, as some general or universal proposition, for a decision-maker to take into account the fact that a person’s behaviour has not been tested in the community, referring to Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 (Tran) at [179] per Charlesworth and O’Callaghan JJ and Taualii v Minister for Home Affairs [2020] FCAFC 102 at [59] (Full Court). The Minister submitted that the decision of the Full Court in Splendido, on which the appellant relies, was, as Mortimer J (with whom Moshinsky J agreed) stated, an “extreme and rare case” (at [96]). In that case, the Minister found that there was a “likelihood” (in the sense that it was “probable”) that the individual would reoffend (at [66]). That is not the case here, where the Minister simply identified an “ongoing risk” of reoffending. Further, in Splendido, the Minister lacked by way of evidence “anything beyond a recitation of prior convictions” ([82]). The Minister submitted that that is also not the case here, where there was a great deal of contextual information, including the appellant’s troubled early life and his drinking and drug-taking behaviour at and around the time of offending. There was also the fact, as the sentencing judge had observed, that the appellant had engaged in the offending while on bail which “indicate[d] a blatant disregard by [the appellant] for the system of law”.
62 Finally, in respect of the appellant’s contention that the Minister erred by considering the appellant’s conduct as a 17 year old boy as a reliable predictor of his future conduct, the Minister submitted that the Minister was plainly aware of the age of the appellant at the time of offending, as well as other contextual matters that the Minister set out at length. The Minister submitted that there is no basis for suggesting that he paid no regard to changes in the circumstances of the appellant. Further, the Minister submitted that it does not fall to this Court to conclude that such matters demanded the Minister make a different decision. To do so would be to impermissibly engage in merits review. The Minister submitted that this is not a case where the Court is making its own decision about sentencing, or whether “leniency” should be given. For this reason, the appellant’s invocation of cases drawn from that different domain are apt to distract. The apparent suggestion that it was somehow a mandatory relevant consideration for the Minister to have regard to principles from criminal law about sentencing in making a decision under s 501CA should be rejected.
Consideration
63 As was recently reiterated by the Full Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 397 ALR 1 at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
64 The Minister’s power to revoke the cancellation of a visa under s 501CA(4) is discretionary: Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 383 ALR 194 at [36] per Nettle, Gordon and Edelman JJ; Viane at [12]. There is a legal presumption that the legislature intended that statutory discretionary powers be exercised reasonably: Li at [24]-[29] per French CJ, [63]-[68] per Hayne, Kiefel and Bell JJ and at [88]-[92] per Gageler J. A discretionary decision may be reviewed against the standard of reasonableness by reference to the reasons given for a decision and also by reference to the outcome: Li at [68] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J. However, where reasons are given for the exercise of a discretionary power, the Court ordinarily looks to those reasons to assess the reasonableness of the exercise of power: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh) at [44]-[47]. While (absent clear words to the contrary) there is a presumption that the legislature intended all statutory discretions and powers to be exercised reasonably, one of the matters which informs the legal standard of reasonableness is whether the subject matter of the power is substantive or procedural: Stretton at [71] per Griffiths J (with whom Allsop CJ and Wigney J agreed). In the present case, the Minister’s power to revoke the cancellation of a visa under s 501CA(4) is substantive in nature.
65 While factual findings and associated reasoning in administrative decisions are subject to review for jurisdictional error on the grounds of irrationality, true irrationality must be shown. It is not sufficient that the court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees; it must be shown that the findings were not rationally open to be made: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [35]-[38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [119] and [135] per Crennan and Bell JJ.
66 Applying the foregoing principles, the Court has previously found that a decision-maker, exercising power under s 501CA(4) or a power to cancel a visa, is entitled to conclude that even a low risk of reoffending is unacceptable if the gravity of the harm that might eventuate from the reoffending is sufficiently serious. In BMX15, while the Minister found that the likelihood of reoffending was low (a matter weighing in the applicant’s favour), the gravity of possible harm was high (a matter that weighed against the applicant) (at [28]). Justice Bromberg observed (at [29]) that:
That combination of likelihood and gravity (which I will call “overall risk”) was weighed against other relevant factors. The Minister considered that the overall risk outweighed those other factors. That was not illogical or irrational. It was not legally unreasonable. There was a clear process of reasoning leading to that outcome. It is true, of course, that other decision-makers might reasonably have reached a different conclusion on the merits, but that (of course) does not suffice to demonstrate that this decision was legally unreasonable. This decision was not “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, or “obviously disproportionate”: cf AZAFQ at [58]. …
67 Similarly, in Stretton, Allsop CJ observed at [16]-[17] that:
[16] … The Minister accepted that the risk of Mr Stretton re-offending was low, but recognised that should re-offending occur the harm could be serious to the community …
[17] It may be that others exercising this governmental power on behalf of the Australian people would have been prepared, on the community’s behalf, to take the low risk of the possibility of his re-offending to avoid the harshness inflicted by the removal. That can be accepted. But that is not sufficient for the decision to be characterized as legally unreasonable – as a decision that is of a character not supported by its apparent statutory source. The decision to be made under s 501 called for an evaluative balancing of unquantifiable (though low) risk, possibly serious harm to a person or persons unknown if re-offending occurred, and known immediate human hardship if removal takes place. The decision to be made did not admit of a ready answer by some calculus. The decision as made was one that can be seen to have been reached by reasoning which was intelligible and directed towards, and related intelligibly to, the purposes of the power …
68 That is not to suggest, however, that a decision-maker’s findings with respect to the risk to the Australian community of an applicant reoffending is beyond judicial review. In Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 (Muggeridge), the Full Court concluded that the decision of the Minister was legally unreasonable because the reasons of the Minister provided no logical basis for concluding that there was a possibility that the appellant would resume contact with an outlaw motorcycle club, which was the foundation for the Minister’s finding that there was a risk of the appellant reoffending in a similar manner to the prior offending and thereby causing harm to the community (at [55] per Charlesworth J, Flick and Perry JJ agreeing). In Ogbonna, Thawley J concluded that the Minister’s finding that there was a likelihood, albeit low, of the applicant reoffending was not formed reasonably because it was not supported by probative material (at [47] and [49]). In Splendido, the Full Court concluded that the evidence before the Minister did not afford a probative basis for the Minister’s finding that there was a likelihood of the applicant reoffending (at [50]-[51] and [111] per Mortimer J, with whom Moshinsky J agreed at [113], and at [132] per Wheelahan J). So too in Logan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 419 (Logan), Colvin J found that the Minister’s conclusion that Ms Logan represented an unacceptable risk of harm rested upon no probative material and was not reasoned logically (at [42]). Justice Colvin explained that the fundamental difficulty with the reasoning was that it contained no finding by reference to current circumstances as to whether Ms Logan posed a risk of reoffending and the evidence before the Minister did not identify such a risk (at [43]).
69 In his reasons for decision, the Minister emphasised on many occasions the very serious nature of the crime of murder committed by the appellant (see reasons at [23], [24], [61], [66], [67], [68], [71], [73], [78], [79], [82], [86], [99], [100], [108]). That is undeniable. The Minister took that consideration into account when assessing the expectations of the Australian community (reasons at [24] and [108]). That consideration was not the subject of challenge. The Court has recognised on many occasions that the seriousness of the applicant’s crime may be sufficient to justify a decision to refuse a visa (having regard to the national interest): see for example Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [79] per Gaudron J; Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [86] per French, O’Loughlin and Whitlam JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [74] per Kiefel and Bennett JJ; Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [72] per Rangiah J (with whom North J agreed). Given the breadth of the Minister’s discretion to revoke the mandatory cancellation of a visa, the same consideration must also be relevant in that context and is typically taken into account in connection with the Minister’s assessment of the expectations of the Australian community.
70 However, the Minister did not base his decision not to revoke the cancellation of the appellant’s visa only on the fact that the appellant had committed a very serious crime. The Minister also based his decision on the risk to the Australian community of the appellant reoffending in a similar manner (reasons [100], [101], [109] and [111]). Thus, the Minister considered the prospect of the appellant committing a further murder, or similar offence, if his visa was returned. As the Minister accepted, a conclusion that the appellant represents an unacceptable risk of harm to the Australian community must be based on probative evidence concerning the risk (or likelihood) of the appellant committing an offence of a particular kind in the future (in this case, murder or a similar offence). The appellant contends there was no probative evidence of such a risk in the present case.
71 In his reasons for decision, the Minister did not define in any manner the degree of risk of reoffending that he believed that the appellant posed. Certainly, the Minister had no duty to evaluate the risk of reoffending in any particular way or to ascribe any particular characterisation to the quality of the risk: Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 at [41], subsequently cited in AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 (AZAFQ) at [55]. Nevertheless, in assessing the reasonableness of the Minister’s finding, it is necessary to understand what the finding means. The Minister framed the consideration as whether the appellant poses “a risk” of reoffending (see at [72], [99]) and the Minister found that “there is an ongoing risk that [the appellant] would reoffend” (at [101]). Later, the Minister stated that he “could not rule out the possibility of further offending by [the appellant]” (at [109]). Although expressed in somewhat vague terms, the finding must be understood as a finding that the appellant posed a risk of reoffending that was greater, in a more than immaterial way, than the risk of the ordinary person residing in Australia committing the offence of murder or other similar offence. A conclusion that the appellant posed a risk of reoffending similar to other ordinary Australian residents could not rationally support a conclusion that the risk was unacceptable. Thus, it is necessary to consider the basis for the Minister’s finding that the appellant posed a risk of reoffending, by committing the most serious crime of murder or some similar offence, which was greater than the “risk” of any ordinary person committing such a serious offence.
72 In that context, the Minister submitted in the course of argument that the finding concerning the risk of reoffending involved a “low bar”. The burden of the submission was that the finding of “a risk” of reoffending required little in the way of evidence. The submission does not reflect any recognised legal principle. A finding that a person is a risk of committing a very serious offence such as murder is a significant finding that requires a probative basis. In circumstances such as this case where there is a wealth of evidence supporting a contrary finding, the need for a probative basis to support a finding of risk is heightened. Describing the finding as involving a “low bar” at best does not assist and at worst is inapt.
73 In both curial and administrative decision-making, there is a significant difference in reaching findings about the occurrence of past events compared with findings about the likely occurrence of future events. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo), the plurality (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) discussed the process of reasoning necessary to make administrative findings about the likely occurrence of future events, in that case the prospect of the risk of persecution if an applicant (for a protection visa) were returned to their country of nationality. The plurality observed (574-575):
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. …
74 As the above passage makes clear, while the future is not predictable, it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances. On occasions, the task of predicting future events in curial or administrative decision-making has been described as involving speculation. That is an unfortunate description, as the word speculation is typically used as a synonym for conjecture, which is the formation of an opinion without sufficient evidence for proof. In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk. Further, as the above passage of the plurality in Guo indicates, a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
75 In argument, each of the appellant and the Minister sought to place reliance on previous decisions of the Court that have considered the basis on which a finding was made that the applicant presented an unacceptable risk to the Australian community. It need hardly be said that the process of judicial review, particularly on the ground of legal unreasonableness or irrationality, is fact dependent and the decision in each case will turn on its own particular facts: Singh at [48]. Little if any assistance is obtained from the citation of conclusory phrases extracted from previous decisions. It is necessary to examine the facts, reasoning and conclusion in the present case.
76 A number of the contentions advanced by the appellant can be addressed briefly.
77 First, the appellant challenged the Minister’s conclusion that he is an “unacceptable risk” to the community. As submitted by the Minister, the conclusion that the appellant is an “unacceptable risk” to the community involves an evaluative judgment. That does not immunise the conclusion from review: the evaluative judgment must have a probative basis. But in this case the relevant question is whether there was a probative basis for a finding that the appellant posed a risk of reoffending by murder or similar offence (being the basis for the conclusion concerning “unacceptable risk”).
78 Second, the appellant challenged the Minister’s conclusion that he was an ongoing risk because he would lack “immediate support” in the community and because his conduct had not been tested in the general community. Again as submitted by the Minister, there was no error in the finding that the appellant’s conduct had not been tested in the general community. It was a fact that the appellant had not been released into the community and therefore his conduct had not been tested in the community. In relation to support and supervision, it is clear from the reasons that the Minister was referring to the kind of immediate institutional supervision and support that is available to a person in criminal custody or immigration detention as compared to in the community. It is also clear from the reasons that the Minister was aware that the appellant would enjoy family and community support if released from detention.
79 It is a logical fallacy to conclude that a fact has been proved because it has not been disproved. As noted above, a conclusion or finding that a risk “cannot be ruled out” (such as was made by the Minister in the present case at [109] of his reasons) does not, of itself, logically establish the existence of a risk. So too, and as observed by Mortimer J in Splendido (at [95]) and by Colvin J in Logan (at [24]), a finding that the appellant’s conduct has not been tested in the community does not establish that the appellant is a risk of reoffending. It is a negative finding about what is not known or established (because the appellant has not been living in the community), rather than a positive predictor of the appellant’s future behaviour.
80 The central issue raised by ground two of the appeal is whether there was a probative basis for the Minister’s finding that there was an ongoing risk that the appellant would reoffend by committing murder or a similar offence. The facts of this case present a striking example of a case in which a person has previously committed an extremely grave offence, murder, but where the evidence before the Minister barely (if at all) supports any finding concerning the risk of reoffending in the same or similar manner.
81 It should be noted that the Minister’s reasons do not expressly state that the Minister considered that the appellant was at risk of reoffending in a similar manner because the appellant had previously offended. Nor did the Minister submit in argument that that was the basis of the Minister’s finding with respect to the risk of reoffending. In Muggeridge, the Minister advanced an argument that there was an inherently elevated risk that a person previously convicted of a criminal offence may offend again in the future, and that that propensity was implicitly recognised in s 501 of the Act (see at [44] and [45]). Justice Charlesworth rejected the latter argument (at [46]) and, in respect of the former argument, concluded that the Minister had not in fact engaged in a form of propensity reasoning (at [47]). Justice Charlesworth further observed (at [46]):
…The fact of prior offending will, in most if not all cases, invite consideration of the question of whether the person in question in fact presents some risk to the Australian community and the starting point in that consideration will invariably be the fact of the prior offending. But that is all. The statute does not, of itself, supply an answer to the factual question of whether a particular visa holder has a propensity, however slight, to re-offend.
82 The Minister had regard to a wide range of facts and circumstances that suggested that the risk of the appellant reoffending in a similar manner in the future was highly unlikely, if not non-existent. In summary, those facts and circumstances were:
(a) the appellant committed the offence when he was 17 years old and was immature (reasons [77] and [99]);
(b) the appellant’s offending was the result of several factors, including particularly a difficult childhood as his family fled from war in South Sudan, trouble fitting in to life in Australia as an African, being bullied in school, turning to drugs and alcohol, and the appellant’s brother being killed in a car accident (reasons [74], [79], [80], [81], [82] and [99]);
(c) the appellant acknowledges the seriousness of his offending and is remorseful (reasons [73], [75]-[76] and [99]);
(d) all other offences committed by the appellant were minor and not violent (reasons [78]);
(e) an examining psychologist, Dr Grech, expressed the opinions that the appellant’s “prospects for long term rehabilitation are considered excellent and, notwithstanding his previous offending, the likelihood of losing emotional control in future appears to have decelerated substantially as he has learned skills for dealing with anxiety, stress and anger”, the appellant “demonstrated maturity and personal responsibility for his past conduct at assessment” and “has consciously decided to be a responsible member of society in future”, and “[b]ased on all available information, the appellant has a bright future in Australia” (reasons [92]);
(f) the appellant had served his prison sentence and exhibited generally good behaviour in prison (reasons [100]);
(g) the appellant’s family supported the appellant during his imprisonment and expressed their intention to support the appellant upon release from detention (reasons [84], [86]);
(h) the appellant also has strong support from the South Sudanese community in Australia (reasons [91]); and
(i) the appellant has voluntarily completed several rehabilitation and personal development courses (reasons [93]).
83 Against that, the Minister’s reasons refer to only two matters that could possibly be relied on in support of the ultimate finding that the appellant was a risk of reoffending.
84 As to the first, the Minister noted that the appellant committed the offence of murder when on bail for lesser offences and, at the time of sentencing, the sentencing judge remarked that this fact indicated a blatant disregard for the system of law under which bail was granted, suggested that the appellant has small regard for the law and little intention of obeying its commands and undermined, to some extent, any confidence in the appellant’s ultimate rehabilitation (reasons [97]). The Minister’s reasons do not, however, expressly connect the sentencing judge’s remarks to the Minister’s assessment of the risk of reoffending. More significantly, the reasons fail to consider whether and to what extent those observations, which concerned the circumstances in which the crime was committed (when the appellant was 17 years old), continued to bear upon an assessment of the appellant’s risk of reoffending nearly 15 years later when the Minister made his decision. In an appeal against the severity of the sentence, the Victorian Court of Appeal concluded that it was open to the sentencing judge to make those remarks, but the circumstance (of being on bail) had limited significance having regard to the appellant’s youth and background at the time of the offence. The Minister did not refer to that finding of the Court of Appeal, or otherwise consider the ongoing relevance of the sentencing judge’s remarks in light of the passage of time. In those circumstances, we do not consider that this aspect of the Minister’s reasons provides a probative basis for a conclusion that the appellant presents a risk of reoffending by murder or similar offence.
85 As to the second, the Minister stated that he was guarded about the prospect of the appellant relapsing into substance abuse if released into the community (reasons [100]). It can be accepted that the appellant’s propensity to abuse drugs or alcohol was a relevant consideration in assessing the likelihood of reoffending, given the appellant’s admission that he had abused drugs and alcohol as a teenager and he was drunk and on drugs at the time of the murder (reasons [74], [99]). However, the Minister provides no basis in his reasoning for being guarded about the prospect of the appellant relapsing into substance abuse. The Minister found that the appellant had a history of alcohol and drug abuse as a teenager (reasons [29]), but makes no other finding concerning the causes of the substance abuse, whether those causes continued to exist or how the appellant’s circumstances had changed since he was a teenager (at the time of the Minister’s decision, the appellant was 33 years old). The reasons do not refer to any evidence of ongoing drug or alcohol use. Conversely, the reasons refer to the appellant’s participation in drug and alcohol courses (reasons [93]). There is nothing in the Minister’s reasons that provide any support for a finding that the appellant was a risk of relapsing into drug or alcohol abuse which might then provide a foundation for a finding that the appellant was a risk of reoffending.
86 With great respect to the primary judge who reached a contrary conclusion, in our view the Minister’s reasons do not disclose a probative basis for a finding that there was a risk that the appellant would reoffend in a similar manner. In our view, the Minister’s conclusion must be described as speculative, based on mere conjecture or supposition unsupported by evidence. While the power given to the Minister by s 501CA(4) is very broad, its exercise is subject to the condition that it be exercised reasonably and rationally. Findings and conclusions must have an evident and intelligible basis, and not be the subject of mere speculation.
87 The conclusion reached in this case does not present any conflict with other decided cases. As noted earlier, in a number of decisions the Court has concluded that a finding that a visa applicant was a risk of reoffending was legally unreasonable or lacked a probative basis: see for example Muggeridge and Logan. In other cases, the Court has rejected that contention. Each case turns on its own facts and, it should be added, the particular grounds of review advanced in the case. In argument, the Minister referred to the following Full Court decisions, but each are distinguishable from the present:
(a) The facts in AZAFQ present a stark contrast to the present case, where the visa applicant had breached numerous court orders, had served multiple terms of imprisonment and suffered numerous relapses into drug use (as set out in the Minister’s statement of reasons reproduced at AZAFQ [12]). The Court concluded (at [54]):
The Minister’s statement of reasons reveals that he did take into account the risk of harm to the Australian community. This occurred in the specific context of the Minister considering whether or not there was a risk that the appellant would re-offend. The Minister set out in [18] of his statement of reasons the basis upon which he concluded that the appellant posed an ongoing risk of re-offending notwithstanding that there were some factors which he acknowledged served to reduce that risk, including the appellant’s rehabilitation in prison and his renewed family and community support. The Minister concluded, however, that taking into account other facts, such as the appellant’s long criminal history, his previous violent offences and his untested ability to refrain from substance abuse in the community, there was an ongoing risk of re-offending, which the Minister described in [39] of his statement of reasons as an “unacceptable risk”.
(b) So too in Tran, the visa applicant had a lengthy criminal history. The Assistant Minister’s summary of that history was reproduced in the reasons of Greenwood J at [54] and [55] (in dissent in the result, but whose narrative of background facts was adopted by the majority, Charlesworth and O’Callaghan JJ, at [152]) and was as follows:
Mr TRAN’s criminal history in Australia commenced in 1993 at age 18 with a conviction for breaking and entering with intent. Mr TRAN has a number of dishonesty offences including more than five break and enter offences, a number of drug related offences (prior to April 2002) including ‘trafficking, bring/introduce prohibited drug into place of detention and possesses prohibited drug’. Mr TRAN also has two counts of ‘assault officer in execution of duty’ (in 2002), and a range of driving related offences. Mr TRAN’s criminal history also includes breaches of judicial orders.
I have formed the opinion that Mr TRAN has been a frequent offender commensurate with a ‘drug addict who committed offences in order to fund his addiction’. I find that the sentences Mr TRAN received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious. I consider that the cumulative effect of his offending conduct has imposed a significant cost upon the Australian community, through the expenditure of police and court resources.
The Assistant Minister found that there was a likelihood that Mr Tran will reoffend (see para 98 of the Assistant Minister’s reasons, reproduced at Tran [61]). Justices Charlesworth and O’Callaghan concluded that there was an evident and intelligible basis for the Assistant Minister’s conclusions (at [181]). The facts on which that conclusion were reached are materially different to the present case.
(c) In YKSB, the appellant had committed a number of offences over time, including assaulting a police officer in April 1979 and committing a series of sex offences against children in the period between 1982 and 1990 (see YKSB at [2] and the further description of the offending given by the primary judge in YKSB v Minister for Home Affairs [2020] FCA 476 at [20]). The sole ground of appeal differed from the present case and raised the question whether the decision maker (the Administrative Appeals Tribunal) had given proper consideration to a submission advanced by the appellant. In relation to the Tribunal’s assessment that the appellant represented a “low to moderate risk of reoffending”, the Full Court observed (at [14]) that the Tribunal’s conclusion was based on evidence concerning the appellant’s attitude to his offending which had been addressed by a psychologist, Dr Ducat, such as to necessitate further assessment and possible treatment.
88 The Minister did not contend that the finding on this issue, the risk to the Australian community, was not material to the Minister’s decision. It was stated as a finding at [100] and [101] of the reasons, and repeated in the Minister’s overall evaluation at [109] and [111]. We therefore conclude that the Minister’s erroneous finding on that issue involved jurisdictional error.
89 For the foregoing reasons, we uphold the second ground of appeal.
Appeal ground three
90 By appeal ground three, the appellant contends that the primary judge erred in failing to find that the Minister’s decision was legally unreasonable or the Minister failed to consider and apply the correct law by failing to weigh:
(a) the legal consequences of s 197C of the Act as it was at the time of the decision, and as it is now, when considering the “possibility that [the appellant] may be refused a protection visa because of the ineligibility criteria”; or
(b) the effect of the appellant being possibly stateless,
on his future period in immigration detention.
The impugned reasons of the Minister
91 Under the heading “International non-refoulement obligations” the Minister recorded (at [32]) that the appellant submitted that he will face harm if returned to the Republic of Sudan or the Republic of South Sudan. At [33] to [35], the Minister summarised the appellant’s submissions concerning the risk of harm and, at [36], stated that:
36. In so far as [the appellant's] claims may be characterised as giving rise to non-refoulement obligations, I note that [the appellant] is able to make a valid application for a Protection visa. A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Any claim by [the appellant] that he would killed [sic] for reasons of any antigovernment opinion or for being a returnee from the west could be fully considered through the making of a Protection visa application.
92 At [37] to [40] of his reasons, the Minister outlined the possible outcomes of an application for a protection visa, including that such an application might be refused. The Minister noted at [39] to [41] that:
39. Moreover, I am mindful that Australia's international non-refoulement obligations, which may potentially be engaged in the case of [the appellant], may not be fully encompassed by the protection obligations reflected in the visa criteria in s36(2) of the Act. I am also mindful that the consideration of any non-refoulement obligations that may be owed to a person, as a relevant consideration in the exercise of the discretionary power in s501CA of the Act, is qualitatively different from the consideration of protection obligations in determining whether the person satisfies a Protection visa criterion.
40. Further, I am cognisant of the possibility that [the appellant] may be refused a Protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria.
41. I have also considered [the appellant]'s claims of harm upon return to Sudan and South Sudan outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the appellant]'s claims are such as to engage non-refoulement obligations, [the appellant] would face hardship arising from difficulty in establishing his actual citizenship, the current security situation in Sudan and/or South Sudan, the absence of any family support and being unfamiliar with his home country, having left Sudan as a child of six years of age, to seek refuge in Egypt, before coming to Australia with his parents and siblings as a refugee.
93 Under the next heading, “Stateless”, the Minister found as follows (at [42], [46]-[47]):
42. I have taken into account that there is no evidence that [the appellant] currently holds the citizenship of Sudan or South Sudan or any other country. I have taken into account that [the appellant] may be a person who has lost his country of nationality or does not currently hold the citizenship of any country, and may therefore be stateless.
…
46. I am aware that the statutory consequence of a decision to not revoke the original decision to cancel [the appellant]'s visa is that, as an unlawful non-citizen whose stateless status means that it is not reasonably practicable to remove him from Australia, he must continue to be detained in accordance with s189 and s196 of the Act, unless granted a visa by me under s195A.
47. I have had regard to [the appellant] possibly being a stateless person, and have carefully weighed this factor against the seriousness of [the appellant]'s criminal offending in considering whether there is "another reason" why the original decision should be revoked.
Conclusion of the primary judge
94 In respect of the third ground, the primary judge determined that the non-revocation decision did not proceed upon any of the statutory misconceptions that the appellant alleged. His Honour considered (at [54]) that the Minister’s reasons for non-revocation proceeded upon the correct statutory understanding that the appellant might be removed from Australia to Sudan or South Sudan even if that would offend Australia’s international non-refoulement obligations. The primary judge further considered (at [55]) that the Minister took into account the alternative possibility that the appellant might be effectively stateless, which would mean that it was “not practicable to remove him from Australia” and that, as a result, he might be indefinitely detained.
Appellant’s submissions
95 There was a discernible shift between the appellant’s written and oral submissions in respect of the third ground of appeal.
96 In his written submissions, the appellant submitted that he had made prominent and detailed claims to engage Australia’s non-refoulement obligations. The appellant noted that the Minister had deferred any decision in respect of those claims to a subsequent process. The appellant also noted that, at the date of the Minister’s decision, s 197C relevantly provided that “it is irrelevant [to removal] whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen”. The appellant submitted that the Minister failed to consider this fact, and the real human consequences of it in the appellant’s identified circumstances. If the very possibility identified by the Minister arose – namely refusal of a postulated protection visa application – the appellant would be sent to serious or significant harm and Australia would be in breach of its non-refoulement obligations. However, in the course of oral argument, the appellant stated that he was not submitting that the Minister erred in deferring consideration of the appellant’s claims to fear harm if returned to Sudan or South Sudan. The appellant also confirmed that he was not submitting that the Minister erred by failing to consider the consequences of not complying with Australia’s non-refoulement obligations in respect of the appellant. For completeness, it should also be noted that the appellant did not rely on any asserted inconsistency in the Minister refusing to revoke the cancellation of the appellant’s visa, which was a protection (refugee) visa, while stating that the appellant could subsequently apply for a protection visa.
97 The appellant’s contention with respect to s 197C of the Act, as developed in oral argument, was difficult to pin down, but was ultimately focussed on the legal consequences of the appellant being stateless, and a contention that the Minister failed to address the possibility of the appellant being removed to other countries where he might face the risk of harm.
98 In written and oral submissions, the appellant also argued that s 197C has been amended since the Minister’s decision. The effect of the amendment is that, in the scenario contemplated by the Minister, the appellant could not be removed to the country against which he obtained “protection findings” (s 197C(3)). He could therefore be detained indefinitely or removed to a country with which he has had no connection at all, even if that meant removing him to certain and immediate death. The appellant argued that although the Minister did not know of this amendment to s 197C at the time and it was not the law, his failure to make a decision based on the correct law remains legally unreasonable. The appellant submitted that a change in the law after an administrative decision directly impacted by that law is an orthodox basis to conclude that the decision was, in hindsight, legally unreasonable, relying on Minister for Immigration and Border Protection v Mohammed (2019) 269 FCR 70 (Mohammed).
99 The appellant submitted that the Minister’s finding at [46], that if the appellant was found to be stateless he might be detained indefinitely unless granted a visa under s 195A, was erroneous in that it misunderstood the consequences of s 197C (in its form at the time of the Minister’s decision). The appellant argued that the Minister’s conclusion was wrong because the fact that a person is stateless does not make them “un-removable”. The appellant argued that the Minister did not fully engage with the possibility of the appellant being removed to another country pursuant to s 197C. In this regard the appellant argued that:
(a) “Reasonable practicability” of removal under s 198 has no regard to whether a person is stateless. All that matters is that there is “any place willing to receive” that person (relying on Al-Kateb v Godwin (2004) 219 CLR 562 at [227] per Hayne J, with Heydon J agreeing at [303]). The focus of Australian law on the removal process itself ending with “successful disembarkation” is uniform and long-established (citing CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [206]-[208] per Crennan J; also the explanatory materials in respect of ss 42(2A)(d) and (da) of the Act).
(b) The Minister can issue relevant travel documents to facilitate the removal of a stateless person from Australia under s 9(1A) of the Australian Passports Act 2005 (Cth) (Passports Act) and s 7(1) of the Australian Passports Determination 2015 (Passports Determination), made under s 57 of the Passports Act.
(c) The Minister or her or his officers have the “power of selection of the destination reached upon removal” (relying on Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [99]). The appellant submitted that there being 192 other countries (and many places within them) that could receive him provides such opportunity. That power would directly impact where the appellant would next live and what impact that would have on him in the scenario that s 195A was not exercised favourably to him and he was removed from Australia.
100 The appellant submitted that the Minister considered none of these possibilities, each of which arose from a correct understanding and application of the law.
Minister’s submissions
101 The Minister submitted that, contrary to the appellant’s assertion, the appellant did not “make prominent and detailed claims to engage Australia’s non-refoulement obligations”. The Minister submitted that, in any event, at the time of the Minister’s decision, and prior to the amendments made in May 2021 (by the 2021 Amendment Act), the effect of s 197C was that the existence of non-refoulement obligations was irrelevant to the duty to remove. There is nothing in the Minister’s reasons to suggest that he was unaware of, or misunderstood, this aspect of the statutory framework as then in force. Indeed, the Minister’s reasoning is clearly premised on the (correct) proposition that it is conceivable that the appellant could be removed to South Sudan even if Australia was subject to an obligation at international law not to remove the appellant to South Sudan (Minister’s reasons at [39], [41], [46]).
102 The Minister submitted that it was accepted, consistently with the appellant’s representations, that the appellant was stateless and that this “means that it is not reasonably practicable to remove him from Australia” and therefore “he must continue to be detained in accordance with s 189 and s 196 of the Act, unless granted a visa by me under s 195A”. The Minister submitted that this reasoning reflects no misunderstanding of the Act, referring to Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567. Statelessness is plainly relevant to whether it is presently “reasonable practicable” to remove a person from Australia. A key element of the appellant’s case, which the Minister essentially accepted, was that the appellant may be indefinitely detained by reason of his statelessness.
103 As to the submission that the Minister has the “power of selection” of where to remove an unlawful non-citizen, the Minister submitted that that is only relevant where there are countries which will receive the appellant. There was no evidence before the Minister of a country to which an officer could reasonably (from the officer’s perspective) remove the appellant, notwithstanding the appellant’s statelessness.
104 Finally, the Minister submitted that the appellant’s contention that the Minister erred by failing to make his decision on the basis of the subsequently amended form of s 197C is contrary to authority, referring to Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 (DUA16) at [26] and DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 388 ALR 389 at [21]. The Minister submitted that Mohammed, properly considered, does not support the appellant’s contention.
Consideration
105 There is no basis to the appellant’s argument that the Minister’s reasons demonstrate that the Minister misunderstood the law applicable to the detention and/or removal of the appellant from Australia.
106 In a submission to the Minister seeking the revocation of the cancellation of the appellant’s visa dated 29 March 2018 prepared by the appellant’s legal advisors, FCG Legal Pty Ltd, it was argued that the appellant is effectively stateless, having lost his Sudanese citizenship and being unable to prove that his parents came from South Sudan. The submission stated that the appellant does not have the legal right to enter either Sudan or South Sudan and therefore cannot be returned to either of these countries. The submission advanced an alternative argument that, if the Department concluded that the appellant is a citizen of either Sudan or South Sudan, an International Treaty Obligations Assessment must be undertaken and an opportunity provided for the appellant to provide submissions regarding his international non-refoulement claims for either or both countries. A “personal circumstances form” accompanying the submission included claims that: the appellant’s family fled South Sudan because of the war and that the appellant would be in danger or would be harmed if he were returned to South Sudan; the appellant was born in North Sudan (now Sudan) after his family had fled South Sudan and, in Sudan, the family was targeted because the Sudanese assumed that they were supporting the rebels; the appellant’s brother was taken from school to be a child soldier in the army; the appellant’s parents found out where the brother was, got him out of the army and fled to Egypt; eventually the family were granted humanitarian visas to come to Australia; South Sudan remains a dangerous place because of war and the appellant would be targeted because he would be returning from the “West”.
107 In a subsequent submission to the Minister dated 28 February 2019, FCG Legal Pty Ltd maintained the claim that the appellant was stateless and argued that “the issue of effective statelessness is an issue that has been raised as requiring clarification and determination before submissions can be made by the applicant in relation to international non-refoulement and the extent of impediments, as has been previously discussed in earlier submissions”. The submission stated: “We submit that both [the appellant’s] effective statelessness and the prospect of indefinite immigration detention is a heavily significant consideration weighing in favour of revocation of [the appellant’s] visa cancellation and must be given due weight by the decision-maker”.
108 Based on the materials before the Court, the Minister was correct to submit that the appellant did not “make prominent and detailed claims to engage Australia’s non-refoulement obligations”. The appellant’s written submissions contending that such claims were made must be rejected. The appellant’s principal submission to the Minister was that he was stateless, and that the question of any citizenship in Sudan or South Sudan required investigation before submissions could be advanced about non-refoulement obligations.
109 The appellant’s contention that the Minister erred by failing to engage with the “human consequences” of s 197C of the Act (namely, that the appellant would be subject to removal from Australia, irrespective of any non-refoulement obligations owed to the appellant) cannot be accepted for two interrelated reasons. First, there is nothing in the Minister’s reasons to suggest a misunderstanding about the meaning or effect of s 197C. It is apparent from [39] to [41] of the Minister’s reasons that the Minister understood that (i) Australia’s international non-refoulement obligations, which may potentially be engaged in the case of the appellant, may not be fully encompassed by the protection obligations reflected in the visa criteria in s 36(2) of the Act (at [39]); and (ii) by refusing to revoke the cancellation of the appellant’s visa, the appellant may be returned to Sudan or South Sudan (at [41]). The Minister did not expressly advert to the prospect of the appellant being returned to Sudan or South Sudan contrary to Australia’s international non-refoulement obligations, but that is explained by the fact the appellant invited the Minister to defer consideration of non-refoulement obligations owed to the appellant. The Minister’s reasons on the topic of non-refoulement were responsive to the appellant’s submissions to the Minister. Given the nature of the submissions that were advanced, there is no basis to assume that the Minister misunderstood the applicable law.
110 The appellant’s further contention that the Minister’s reasoning is erroneous by virtue of the subsequent amendments made to s 197C since the Minister’s decision must be rejected. As observed by Gordon J in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (at [101], citations omitted):
Judicial power is concerned with whether the rules set down by the statute were met. Generally, this manifests as a concern with the manner in which power conferred by the statute was exercised. That inquiry is, logically, concerned with the time at which the power was exercised and, in cases of legal unreasonableness, also the result. The inquiry therefore has a temporal element.
111 That passage was referred to with approval by the High Court in DUA16 at [26], where the Court observed that an assessment of whether an administrative decision-maker has breached an implied statutory limit of unreasonableness is to be judged at the time the power is exercised and turns on the circumstances known to the decision-maker at that time. The same principle applies to an assessment whether the decision was based on a correct understanding of the law – the relevant law is that in force at the time of the decision.
112 The appellant’s reliance on Mohammed is misconceived. The issue in that case was whether a decision of the Tribunal could be impeached on the basis that an earlier related decision of the Tribunal had been subsequently quashed, ab initio, by a court order. The Full Court stated (at [68]) that it is settled law that “a want of lawful basis for an administrative decision may become clear in retrospect in consequence of a judicial determination that later invalidates ab initio a condition precedent for the exercise of power”. The distinction between the circumstances in that case and the present case are readily apparent. Mohammed concerned the decision of a Tribunal affected by the retrospective nullification of an earlier decision. While the Tribunal could not be criticised for failing to anticipate the Court’s later decision, the quashing of the earlier Tribunal decision removed the lawful basis for the exercise of the Tribunal’s power. As the Full Court in Mohammed relevantly noted in its consideration (at [72], emphasis added):
… In consequence of the consent orders made by the primary judge, the true legal position was that, at the time of the Tribunal’s decision, Mr Mohammed was merely thought by it to have had his application for a Temporary Partner visa determined. However as a matter of law, what the Tribunal did was to proceed to determine Mr Mohammed’s application for a Permanent Partner visa despite his valid and yet to be determined application for a Temporary Partner visa being before it.
113 As can be seen from the above passage, the relevant enquiry was focussed on the legal basis for the Tribunal’s decision at the time the decision was made.
114 The appellant’s third contention that the Minister misunderstood how the law would apply if the appellant were found to be stateless must also be rejected. At [46] of the Minister’s reasons, the Minister stated that he was aware that the statutory consequence of a decision not to revoke the cancellation of the appellant’s visa is that, as an unlawful non-citizen whose stateless status means that it is not reasonably practicable to remove him from Australia, the appellant must continue to be detained in accordance with ss 189 and 196 of the Act, unless granted a visa under s 195A. There is no error in that statement. Further, the statement reflects the submission made by the appellant to the Minister.
115 The appellant’s contention that the Minister erred in failing to consider that the appellant may be removed to another country where he might suffer harm must be rejected for two primary reasons. First, no such submission was made to the Minister by the appellant. Second, the submission as developed in oral argument was premised on a contention that Australia is able to remove a non-citizen to other countries without permission from the receiving country. The premise is not correct. It can be accepted that s 9(1A) of the Passports Act empowers the Minister to issue a travel-related document to a person if the Minister is satisfied that such a document is required to remove, deport or extradite the person from Australia. It can also be accepted that, pursuant to s 7(1) of the Passports Determination, the Minister may issue a certificate of identity to a person who (i) is not an Australian citizen, (ii) is about to leave Australia and (iii) is stateless. But those provisions are not to the point. As the High Court observed in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 133 (Plaintiff M70) at [91], an important consideration that bears upon the operation of the statutory power to remove a non-citizen from Australia is the principles of international law concerning the movement of persons between states. Justices Gummow, Hayne, Crennan and Bell JJ observed (at [92]-[93], citations omitted, emphasis added) that:
92 Australia’s power to remove non-citizens from its territory is confined by the practical necessity to find a state that will receive the person who is to be removed. Ordinarily, Australia would look, in the first instance, to a person’s country of nationality to receive that person. Australia would do that on the footing that it has long been accepted, as a principle of international law, that the national of a country has a right to re-enter the territory of that country and a country of nationality has a duty to admit its nationals to its territory. This principle of customary international law is reflected, but not in any way superseded, in many international instruments to which Australia is party.
93 The general expectation that Australia can and should look to the country of a person’s nationality to receive that person on removal from Australia is necessarily subject to some qualifications. First, other considerations may arise where a person is stateless …
116 The Minister’s acknowledgement at [46] of his reasons that it would not be “reasonably practicable” to remove the appellant from Australia if he were stateless reflects the limits on the power of removal referred to by the High Court in Plaintiff M70.
117 For the foregoing reasons, appeal ground three is rejected.
Conclusion
118 In conclusion, the appellant’s second ground of appeal is accepted, while the first and third grounds of appeal are rejected.
119 The appropriate orders are:
(a) The appeal be allowed.
(b) The orders of the Court made on 27 August 2021 be set aside and in lieu thereof the following orders be made:
(i) There issue absolute a writ of certiorari directed to the respondent to quash the decision of 27 February 2020.
(ii) There issue absolute a writ of mandamus directed to the respondent to exercise the power under s 501CA(4) of the Migration Act 1958 (Cth) according to law.
(iii) The respondent pay the appellant’s costs of the proceeding before the Federal Court.
(c) The respondent pay the appellant’s costs of the appeal.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Moshinsky, O'Bryan and Cheeseman. |
Associate:
