Federal Court of Australia

DGPZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 107

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the applicant is to file and serve a Notice of appeal from the orders made by Justice Moshinsky on 30 October 2020, be extended up to and including 26 February 2021 and nunc pro tunc, the draft Notice of appeal received by the Court on that day be treated as having been filed.

2.    The applicant have leave to amend the Notice of appeal in terms of the amended draft Notice of appeal received by the Court on 21 June 2021.

3.    The applicant have leave to rely on Ground 2 in the amended Notice of appeal.

4.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an application by the applicant for an extension of time pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (the Rules) within which to file a Notice of appeal from orders made by a judge of this Court.

2    The applicant is a citizen of Turkey who first arrived in Australia when he was four years of age. He has an extensive criminal record, including offences involving violence. Prior to 3 February 2017, the applicant held a Class BB Subclass 155 Five Year Resident Return visa. On 3 February 2017, a delegate of the then Minister for Immigration and Border Protection (the Minister) cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth). That subsection provides for the mandatory cancellation of a person’s visa in the circumstances specified in the subsection. The applicant applied to the Minister for the revocation of the cancellation decision and he made representations in support of his request under s 501CA(3) and (4) of the Migration Act. On 14 December 2017, another delegate of the Minister decided under s 501CA(4) of the Migration Act not to revoke the cancellation decision (the non-revocation decision).

3    The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the non-revocation decision. The Tribunal decided to affirm the non-revocation decision. The decision of the Tribunal was set aside by a judge of this Court and the review was remitted to the Tribunal for reconsideration according to law: DFW18 v Minister for Home Affairs [2019] FCA 599.

4    A differently constituted Tribunal conducted a hearing and on 3 February 2020, the Tribunal decided to affirm the non-revocation decision and published reasons for its decision (the Tribunal’s decision).

5    The applicant applied to this Court for judicial review of the Tribunal’s decision.

6    On 30 October 2020, a judge of this Court decided that the application for judicial review should be dismissed: DGPZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1569. Under r 36.03 of the Rules, the applicant, if seeking to appeal, was required to file a Notice of appeal from the primary judge’s judgment within 28 days after the date on which it was pronounced. The applicant filed his application for an extension of time on 26 February 2021, which was approximately three months after the expiration of the 28-day period.

7    There was one ground of judicial review before the primary judge and it was to the effect that the Tribunal failed to consider a substantial and clearly articulated submission of the applicant and thereby failed to afford the applicant procedural fairness and/or otherwise constructively failed to exercise its jurisdiction. The substantial and clearly articulated submission identified by the applicant was that he faced a prospect of mistreatment in the form of physical confinement and other inhuman or degrading treatment in the course of treatment for any mental health relapse in Turkey.

8    The first ground of appeal to this Court was that the primary judge erred in not upholding this ground of judicial review. The applicant seeks to rely on a second ground of appeal which alleges an error by the Tribunal which he did not raise before the primary judge. He requires the leave of this Court to rely on the second ground of appeal. The error is said by the applicant to be that two key findings of the Tribunal are inconsistent with each other and, as a result, the Tribunal’s decision is said to be irrational, illogical or unreasonable.

The Relevant Legislative provisionS and a short summary of the Tribunal’s reasons

9    Section 501(3A) of the Migration Act relevantly provides:

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

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

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

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

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

10    The relevant subparagraph in s 501(3A) is (a)(i) and the provisions referred to therein relevantly provide:

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

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

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; …

11    The primary judge summarised the applicant’s criminal record and his Honour’s summary is sufficient for present purposes. His Honour said (at [13]–[14]):

13    The applicant has an extensive criminal record, which is detailed in the Tribunal’s reasons. As summarised in the Tribunal’s reasons at [59], the applicant’s offending commenced while he was still a juvenile and has continued for 35 years. His initial offending until early 1986 was dealt with through probation, fines and conditional liberty arrangements. He was given his first custodial sentence in January 1986, and has served approximately 18 terms of imprisonment since. There are few meaningful gaps in the chronology where no convictions were recorded. The applicant has consistently reoffended despite numerous rehabilitative opportunities. He was convicted of his most serious offences at the ages of 45 and 50, most recently in July 2016, which was a particularly violent offence against his intellectually-disabled female partner.

14    In relation to the applicant’s most recent conviction in 2016, a forensic medical officer determined that the applicant inflicted over 100 separate injuries against his female partner in 2015 with a three-pronged garden fork and a large screwdriver: see the Tribunal’s reasons at [62]. The applicant also put his hands around her throat and shook her, attempted to suffocate her with a pillow, and used a large kitchen knife to threaten her. His partner required extensive hospital treatment over a 10 day period, including surgery, to deal with potentially life-threatening injuries.

12    Section 501CA of the Migration Act provides:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

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

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

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

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

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

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

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

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

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

13    The applicant made representations to the Minister about revocation of the original decision pursuant to s 501CA(4)(a) and as the applicant clearly did not pass the character test, the focus of the inquiry was on whether the Minister was satisfied that there is another reason why the original decision should be revoked.

14    Following the remitter from this Court and for the purposes of a further hearing before the Tribunal, the applicant filed a lengthy document of 181 paragraphs titled “Applicant’s Statement of Facts, Issues and Contentions” (the ASFICs). In this document, the applicant put submissions in support of his case that there is “another reason” why the original decision should be revoked. A number of the submissions are directed to the matters identified in a direction made by the Minister pursuant to s 499 of the Migration Act: “Direction No. 79 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction 79). Those matters included, as primary considerations, protection of the Australian community from criminal or other serious conduct and expectations of the Australian community, and as other considerations, international non-refoulement obligations, strength, nature and duration of ties and extent of impediments if removed.

15    The Tribunal gave detailed reasons for its decision extending over 79 pages. Having regard to the grounds of appeal, it is not necessary to consider many aspects of the Tribunal’s reasons or, indeed, the ASFICs. It will be sufficient to refer to particular aspects of the Tribunal’s reasons relevant to the grounds of appeal.

16    At this point, the following should be noted. The Tribunal found that the two relevant primary considerations weighed very substantially against revocation of the original decision, whereas the other consideration of strength, nature and duration of ties weighed substantially in favour of revocation, and the other consideration of extent of impediments if removed weighed very substantially in favour of revocation. Weighing the relevant considerations individually and cumulatively, the Tribunal found that there was not “another reason” to revoke the original decision. The Tribunal’s conclusions were as follows:

CONCLUSION

133.    Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, DGPZ does not pass the character test. The nature of his persistent and prolonged criminal offending, including violence against his elderly mother and an intellectually-disabled former partner, is objectively very serious. That is particularly so given his frequent offending after being formally warned by immigration authorities in 2011.

134.    DGPZ’s abstinence from illicit drugs since being arrested in 2015 represents a relatively brief period in what has been lifelong use of illicit substances since his teenage years. That abstinence has occurred in the aftermath of his arrest, under conditional liberty, while imprisoned, and in immigration detention. Any abstinence must also be considered in the context of DGPZ’s previously unfulfilled undertakings to cease drug use, commit to rehabilitation, and live a law-abiding life. He has instead relapsed into drug abuse and committed further offences. The unreliability of his past undertakings does not inspire confidence, particularly given his history of dishonesty and the Tribunal’s concerns about the veracity of his evidence.

135.    DGPZ’s most recent offence, at the age of 50, is also his most serious. He caused his intellectually disabled female partner to suffer potentially life-threatening injuries. There is an unacceptably high risk that DGPZ will again relapse into drug abuse and commit further offences. The community would expect DGPZ’s visa to remain cancelled.

136.    Of the other considerations enlivened in this matter, the Tribunal accepts that DGPZ’s ties are substantially in Australia. Repatriation to Turkey would pose considerable difficulties for him given he last visited the country approximately 13 years ago.

137.    Having weighed all of the considerations individually and cumulatively, the Tribunal finds there is not another reason of sufficient weight or significance to enliven the statutory power to revoke the cancellation of DGPZ’s visa. That is because the two relevant primary considerations weigh very substantially against revocation. These outweigh the other relevant considerations of ‘Strength, nature and duration of ties’ which weighs substantially in favour of revocation, and ‘Extent of Impediments if removed,’ which weighs very substantially in favour of revocation.

The Applicant’s Application for an Extension of Time

17    As I have said, the primary judge dismissed the application for judicial review and made an order for costs on 30 October 2020 and the Rules required that a Notice of appeal from the judgment appealed from be filed within 28 days after the judgment was pronounced or the order was made (r 36.03 of the Rules). The Court may grant an extension of time within which to file a Notice of appeal (r 36.05).

18    An order has been made in this case that the application for an extension of time be heard concurrently with any appeal.

19    The matters which are relevant to the exercise of the Court’s power to extend the time within which to appeal are well established and include the length of the delay, the explanation for the delay, the merits of the proposed appeal, the prejudice to the respondent if an extension is granted, the effects on the applicant if an extension of time is not granted and public interest considerations (if relevant).

20    The length of the delay in this case — in the order of three months — is substantial. Ground 1 in the Notice of appeal is reasonably arguable as is, subject to leave being granted to rely on it, Ground 2.

21    The first respondent cannot point to any specific prejudice if an extension of time is granted, although this in itself is not decisive in favour of an extension of time (SZQHK v Minister for Immigration and Citizenship [2012] FCA 178; (2012) 125 ALD 458 at [67]). The effects on the applicant if an extension of time is not granted are significant in that he will be unable to pursue an appeal which may affect his ability to remain in Australia.

22    The first respondent submitted that the application for an extension of time should not be granted because the proposed grounds of appeal lack sufficient merit to warrant an extension of time. The first respondent did not make any submissions about the applicant’s explanation for the delay.

23    Nevertheless, the delay in this case is substantial and the Court must consider the explanation for the delay.

24    The applicant’s application for an extension of time is dated 24 February 2021 and the application is supported by an affidavit of the applicant sworn on 25 February 2021. At that time (and since), the applicant has been a detainee at a detention centre in the State of Western Australia. His affidavit deposes to that fact and annexes the reasons of the primary judge. There is also a draft Notice of appeal dated 25 February 2021 and stamped as “RECEIVED – Federal Court of Australia – 26/02/2021”.

25    The applicant relies on an affidavit of Mr Luke McLean affirmed on 10 June 2021. Mr McLean is a lawyer employed by Victoria Legal Aid. Mr McLean deposes to the fact that Victoria Legal Aid were the solicitors for the applicant in the proceeding before the primary judge. On 4 November 2020, he spoke with the applicant and advised him that Victoria Legal Aid were considering his application for a grant of legal assistance in relation to filing a Notice of appeal in respect of the decision of the primary judge. On 18 November 2020, he spoke with the applicant and advised him that Victoria Legal Aid would not be making a grant of legal assistance for the proposed appeal.

26    Late in the afternoon of 18 November 2020, Mr McLean, on behalf of Victoria Legal Aid, sent a letter by facsimile to the detention centre at which the applicant was held, enclosing a Notice of appeal to be completed by the applicant, an application for fee waiver and the decision of the primary judge and containing instructions to the applicant on how to commence the proposed appeal. Mr McLean deposes to the fact that because Victoria Legal Aid did not make a grant of legal assistance for the proposed appeal, he did not thereafter have any further contact with the applicant.

27    The applicant also relies on an affidavit of Ms Shelley Frances Burchfield affirmed on 21 June 2021. Ms Burchfield is a solicitor employed by the Refugee & Immigration Legal Centre Incorporated (Refugee Legal). Refugee Legal is a community legal centre that assists asylum seekers, refugees and disadvantaged migrants in the community and in detention. Refugee Legal has represented the applicant in immigration (visa cancellation) matters with the Department of Home Affairs and the Tribunal. Ms Burchfield provides details of that representation which it is not necessary to set out.

28    Ms Burchfield deposes to the fact that the applicant made contact with Refugee Legal after his application before the primary judge had been refused. On 1 December 2020, she had a telephone conversation with the applicant in which the applicant told her that he had been in communication with Victoria Legal Aid and that he thought that an appeal in the Federal Court had been lodged. On the same day, Ms Burchfield received an email from Victoria Legal Aid which stated that the applicant had been provided with the forms to lodge an appeal which he needed to sign and send by facsimile to the Court.

29    On 3 December 2020, Ms Burchfield had a further telephone conversation with the applicant in which he told her that he had lodged an appeal with the Federal Court on that day himself. Ms Burchfield told the applicant that Refugee Legal could not provide legal advice or representation in relation to his judicial review proceedings.

30    Ms Burchfield deposes to the fact that between January and February 2021, she communicated with the applicant a number of times and that these communications with the applicant were primarily for the purpose of assisting him in trying to secure legal assistance for his appeal by making a referral to Justice Connect for this purpose. Ms Burchfield again told the applicant that Refugee Legal could not provide legal advice or representation in relation to his judicial review proceedings. She told the applicant that he needed to contact the Federal Court himself and provided the applicant with a number to do so. The details of those communications follow.

31    The first communication between Ms Burchfield and the applicant in January 2021 took place on 14 January 2021, when Ms Burchfield had a telephone conversation with the applicant in which he told her that he had not been able to secure legal representation and a discussion ensued about a possible referral to Justice Connect. The second communication was on 21 January 2021, when Ms Burchfield provided the applicant with the telephone number for the Federal Court Registry Melbourne via SMS to seek an update about his review application. The applicant responded to Ms Burchfield on the same day via SMS stating that the Court had said that they would get back to him. A third communication took place on 25 January 2021, when Ms Burchfield had a telephone conversation with the applicant in which she told him that Justice Connect was following up with the referral she had made. Ms Burchfield asked the applicant if he had heard back from the Court and he told her that he had not and that the Court was going to get back to him. Ms Burchfield told the applicant that he should call the Court again. A fourth communication took place on 28 January 2021, when Ms Burchfield sent a message to the applicant asking if there was any news from the Court and the applicant sent an SMS in reply stating that he had to sign an affidavit. A fifth communication took place on 22 February 2021, when Ms Burchfield spoke to the applicant in response to a message she had received from him. She asked him if he had completed the affidavit as per his message of 28 January 2021 and he said that he had. He requested that Ms Burchfield send him the Federal Court Registry telephone number again, which she did. A final communication took place on 26 February 2021, when Ms Burchfield spoke to the applicant by telephone and he told her that he had been talking to the Court and that he had been asked by the Court “to do more things” for the affidavit which he had done. He further stated that he had sent an email to the Court and was waiting to hear back.

32    An amended draft Notice of appeal was received by the Court on 21 June 2021. This is the Notice of appeal the applicant relies on for the purposes of this appeal.

33    The applicant relies on a second affidavit he swore on 23 June 2021. In that affidavit, he refers to the facsimile letter he received from Victoria Legal Aid on 18 November 2020. He deposes to the fact that on 3 December 2020, he sent a 30-page facsimile transmission to the fax number of the Federal Court Registry and he produces the “TX Result Report” for that fax transmission. The applicant states that he cannot remember exactly what documents were included in that fax transmission. However, it was his belief that by faxing the documents to the Federal Court, he had appealed from the primary judge’s decision. For the balance of December 2020, the applicant did not hear anything from the Federal Court about his appeal.

34    The applicant deposes to the fact that on 21 January 2021, Ms Burchfield sent him the telephone number for the Federal Court Registry. The applicant deposes to the fact that he cannot remember telephoning the Registry that day to ask about his appeal, but a short time later, he sent a text message to Ms Burchfield saying “[t]hey said they’ll get back to me”.

35    The applicant deposes to the fact that on 4 February 2021, he caused some documents to be sent to the Federal Court Registry by email. He no longer has a copy of the attachment to that email.

36    The applicant deposes to the fact that on 22 February 2021, he received two emails from the Federal Court Registry. He states that one of the emails refers to a telephone conversation between the applicant and an employee at the Registry and the applicant states that the employee told him that he had to email documents instead of faxing them. The applicant deposes to the fact that on 26 February 2021, he caused an application for an extension of time and supporting affidavit to be sent to the Federal Court Registry by email.

37    The applicant was in detention throughout the three-month period. He was unfamiliar, it may be assumed, with the requirements for filing a Notice of appeal. He had limited assistance in carrying out the necessary steps. That is not a criticism of those assisting him; they did what they could in the circumstances. Nevertheless, he had limited assistance.

38    The applicant believed he had appealed at or shortly after the expiration of the 28-day period. Thereafter, he took steps to appeal or progress his appeal and he, at all times, intended to appeal. In my opinion, the applicant’s explanation for the delay is acceptable and adequate.

Ground 1

39    The applicant contends that the primary judge erred in rejecting Ground 1 of the Amended originating application. The particulars in support of this ground are as follows:

The primary judge should have found that the proper inference to draw from the Tribunal’s decision record was that the Tribunal had failed to give meaningful consideration to the applicant’s claim that, if returned to Turkey, he faced a prospect of mistreatment in the form of physical confinement and other inhuman or degrading treatment in the course of treatment for any mental health relapse.

40    Before turning to consider whether this ground is made out in the circumstances of this case, it is necessary to say something about the relevant principles.

41    The primary judge devoted a section of his reasons to the applicable principles. He referred to the principle that an administrative decision-maker must make a finding on a substantial, clearly articulated argument relying upon established facts and that a failure to do so can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction in the sense of a failure to carry out the review required by the Migration Act (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55]).

42    The primary judge then turned to address the particular obligation of the Minister or the Minister’s delegate to consider and engage with a person’s representations in the decision-making process under s 501CA(3) and (4) of the Migration Act and, in that context, he referred to the decision of the Full Court of this Court in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (Omar) and his own decision in BPL20 v Minister for Home Affairs [2020] FCA 1207 (at [44]–[49]). It is not necessary to set out in any further detail the primary judge’s statement of the relevant principles as neither party suggested his Honour erred in his statement.

43    It remains to note that since the hearing of the appeal, the High Court has handed down two decisions addressing the decision-making task under s 501CA(4) of the Migration Act: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 395 ALR 403 (Viane); Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 (Plaintiff M1/2021). In Viane, the context and alleged error were quite different, but the following observations of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 (at [23]–[27]) must be borne in mind:

23    It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

26    Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

27    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(Citations omitted.)

44    The applicant contends that he advanced a case before the Tribunal that if he was returned to Turkey, he faced a prospect of mistreatment in the form of physical confinement and other inhuman or degrading treatment in the course of treatment for any mental health relapse in Turkey. In support of that contention, he relies on two paragraphs in the ASFICs (142 and 137, in that order). Paragraph 142 is as follows:

Country information also confirms ill-treatment of people with mental illness in Turkey. A Turkish newspaper reported on a 2014 Turkish NGO Report as follows,

A recent NGO report has revealed the poor conditions in all of Turkey’s mental disorder hospitals, where patients are forced to bathe altogether, remain isolated for days, tied to their beds and deprived of proper rehabilitation services.

…

The scarcity in the number of doctors and psychologists was stated as one of the major problems seen in all six hospitals in the report.

…

Following any resistance against hospital officials, the patients are tied to their beds and in almost all of the hospitals, such patients remain tied to their beds for almost a day without being released for toilet breaks, said the report.

The report also revealed that all hospitals lacked any rehab or therapy services for patients. “The patients are given drugs and left with no choice but to stay indoors all day, mostly watching TV or wandering around the corridors of the hospital. Therapy and rehabilitation methods are almost not used in all hospitals,” said the report.

Some patients are forced to stay in isolation with no contact with outsiders for years, said the report, giving striking examples.

(Footnote omitted.)

Paragraph 137 is in the following terms:

The stress of return to Turkey given all of the above in combination, will, cause the Applicant to deteriorate mentally and given past experience to become severely depressed, suicidal and to self-harm. Then, on top of this, if the Applicant is impecunious and homeless, which is the only available inference given that he has no support or any ready place to live and cannot speak the language, his risk is heightened. In a state of mental ill-health in Turkey, given current information, about treatment of people with mental illness in the community and detention, the Applicant is at risk of harm.

45    Before the primary judge, the applicant submitted that the Tribunal had, in considering the other consideration of extent of impediments on return, accepted the first aspect of the applicant’s mental health mistreatment claim, namely, that there was a prospect that if he were returned to Turkey, he would experience a serious relapse in his mental health. At [127] of its reasons, the Tribunal said:

DGPZ would also be confronted with the challenge of accessing healthcare and sourcing prescribed medications in Turkey, a country he last visited 12 years ago. That would be undertaken without the same support framework currently available to him in Australia. In such circumstances, there is a prospect of him experiencing a further relapse in his mental health, including the sort of serious episodes he had in 2018. The Tribunal also acknowledges Dr Nguyen’s evidence that she could not discount further suicidal ideation or self harm if DGPZ was to have a psychotic episode following a relapse into drug abuse. That being said, DGPZ’s mental health over the last year or so is assessed as ‘stable’ and he claims a three-year abstinence from illicit drugs that he wants to build on by returning to remunerative work and living a law-abiding life.

(Footnote omitted.)

46    However, the applicant submitted that, although accepting the first aspect, the Tribunal failed to address the balance of the claim that on relapse, the applicant may be mistreated in the course of mental health treatment.

47    The primary judge rejected the submission that the Tribunal had failed to meaningfully engage with the applicant’s mental health mistreatment claim and he identified six reasons for doing so.

48    First, and most importantly, the primary judge said that the Tribunal engaged with and considered the claim in the course of its consideration of Australia’s non-refoulement obligations as an other consideration. In a key paragraph ([98]), the Tribunal said:

It is submitted by DGPZ’s legal representatives that this consideration has ‘determinative weight,’ because as a person with a mental illness who is impecunious, and who is likely to fall foul of Turkey’s criminal justice system, DGPZ is owed non-refoulement obligations. Submissions relating to non-refoulement can be summarised as follows:

(a)    If returned to Turkey, DGPZ ‘will be at risk of serious and significant harm as defined under s36(2)(a)-(aa) of the Act,’ and ‘non-refoulement obligations under international law also arise;’

(b)    After the Tribunal’s adverse 2018 decision, DGPZ’s mental health deteriorated rapidly, requiring two involuntary admissions and ECT treatment. His vulnerability to acute deterioration may require maintenance ECT. The gravity of DGPZ’s mental health episodes in 2018 was such that only the alertness and supervision of detention centre staff ensured he received the required treatment. Similar ‘structure and support,’ including family support in Australia, is needed to ensure DGPZ’s current stability can be maintained;

(c)    By virtue of his long history of substance abuse between the ages of 15 and 50, ongoing severe mental illness, injury from previous assaults, latent Tuberculosis, and Hepatitis C history, DGPZ ‘will be at high risk of serious and significant harm in Turkey.’ It is submitted that is particularly so given there was a ‘real chance’ he could relapse into drug abuse in Turkey and find himself imprisoned;

(d)    There is a ‘real chance’ DGPZ will be:

‘subjected to serious harm at the hands of the Turkish authorities in the form of withholding of basic services including psychiatric treatment which will threaten his capacity to subsist, as well as psychological harm, physical harm, physical assault, torture and death by reason of, either cumulatively or separately, his:

Membership of particular social groups, namely:

i.    People with mental illness in Turkey who are impecunious;

ii.    Offenders or detainees with mental illness and ill-health in Turkey.

The Applicant’s status as a ‘criminal deportee’ and his previous substance abuse disorder increase his vulnerability to harm.

(e)    Consultant psychiatrist Dr Nguyen submits ‘there is a high risk…[DGPZ]…will not receive necessary mental health support treatment in Turkey, that his deterioration is unlikely to be detected without close supervision, and that he is at risk of death through self neglect if he re-lapses…;’

(f)    Given DGPZ’s history of drug use and deprived of the family and professional supports available to him in Australia, he ‘might seek out drugs to alleviate his stress.’ In that event, ‘drug laws in Turkey are harsh…[and DGPZ]…may likely become involved with the criminal justice system there,’ with country information confirming ‘harsh and degrading treatment in Turkish prisons and places of detention, including torture and assaults. It is further submitted that ‘current country information confirms the failure of Turkish authorities to provide health and mental health services in Turkish prisons and places of detention;’

(g)    DGPZ’s status as a ‘criminal deportee’ from Australia will only increase his risk profile with Turkish authorities;

(h)    DGPZ is ‘at risk of significant harm in the form of arbitrary deprivation of his life, torture and cruel, inhuman and degrading treatment of punishment at the hands of Turkish authorities;’

(i)    DGPZ has ‘no financial resources to draw on,…very limited if any access to welfare in order to subsist…nowhere to live in Turkey and…no source of income from employment.’ It is submitted that ‘Turkey’s social security system appears to be primarily based on financial contributions made by a person during their working life in Turkey while employed or self-employed, and as DGPZ ‘has negligible work history in Turkey, he does not appear to meet the qualifying requirements for any pension or benefit payments under this system;’

(j)    DGPZ has no close family in Turkey to support him and ‘will be devastated to be separated from his two children and his only sibling’ and her children;

(k)    DGPZ’s ‘Turkish language skills are limited and he is not accustomed to Turkish culture, having lived almost all of his life in Australia;’

(l)    A March 2016 academic article refers to community mental health centres (“CMHC”) not meeting minimum standards in service delivery, with high turnover of personnel impacting system sustainability;

(m)    A July 2014 report by the ‘Daily News’ references a 2013 non-government organisation report on the provision of mental health services in Turkey between 2011 and 2013. The Tribunal notes this media report is over five years old and purports to describe provision of mental health services in Turkey between seven and nine years ago;

(n)    If DGPZ was found to be owed non-refoulement obligations and could not be returned to Turkey, the ‘only other logical option under law’ is that he ‘would be held in indefinite detention.’

(Footnotes omitted.)

49    Paragraph 98(m) refers to a report in the Daily News in July 2014 which, in turn, refers to an NGO report in 2013. A footnote reference in [98(m)] is to para 142 of the ASFICs. The Daily News report referred to in para 142 of the ASFICs was before the Tribunal and it is clear that it is the report referred to in [98(m)] of the Tribunal’s reasons. The Tribunal engages with that report, noting it is over five years old and describes circumstances between seven and nine years ago. The Tribunal was not just noting a contention, but explaining the reasons little weight would be given to the report.

50    The second reason given by the primary judge was that the Tribunal correctly understood the task before it. It referred to the decision in Omar and observed that “[a] decision-maker must meaningfully consider any clearly-articulated claims of harm, including those that may enliven Australia’s non-refoulement obligations” (at [104]).

51    The third reason given by the primary judge was that the Tribunal did consider the treatment available to persons with mental health issues. The Tribunal said (at [108]):

If repatriated to Turkey the Tribunal accepts DGPZ is likely to experience a very difficult transition and have a comparatively lesser entitlements to things like healthcare and income support. That being said, the Tribunal is unpersuaded by submissions that if DGPZ suffered a relapse in his mental health, or relapsed into drug use, or became homeless, there was a ‘real chance’ basic services would be withheld by Turkish authorities or that he may suffer serious harm if imprisoned. Those submissions are speculative and absent any corroborating evidence of why Turkish authorities would treat DGPZ differently to any other Turkish citizen. That is particularly so given the evidence that DGPZ was previously admitted as an inpatient in Turkey in 1993 due to mental health issues. In a similar vein, the submission about why someone with hearing loss, or latent Tuberculosis or Hepatitis C, or who has overcome a drug addiction, or who has been convicted of offences overseas, might be physically assaulted, tortured or killed, is similarly absent a persuasive linkage to the specific circumstances of DGPZ’s case.

(Footnote omitted.)

52    The fourth reason given by the primary judge was that the Tribunal addressed generally the applicant’s claims of harm should he return to Turkey and there is no reason to think that the relevant paragraph ([110]) was not in response to the matters identified at [98]. The Tribunal said (at [110]):

The Tribunal is not satisfied on the available evidence that DGPZ has a well-founded fear of being persecuted because of factors like race, religion, nationality, membership of a particular social group, or political opinion. Nor does the evidence reliably support the existence of a ‘real risk’ he would be subjected to significant harm within the meaning of s 36(2A) of the Act if repatriated, due to things like denial of treatment, or discrimination because of any medical condition, or past drug addiction, or convictions in Australia, or because of language or cultural impediments causing his circumstances to be misunderstood. That is not to say that some people in Turkey won’t have a negative perception or lack of understanding about DGPZ’s circumstances should he choose to reveal them, or who may make insensitive comments. That would not rise to a level of discriminatory or degrading treatment or punishment or extreme humiliation such as to constitute significant harm.

(Footnotes omitted.)

53    The fifth reason given by the primary judge was that in the section of its reasons dealing with the other consideration of extent of impediments if removed, the Tribunal dealt with the mental health services available in Turkey (at [123] and [128]–[130]).

54    The final reason given by the primary judge was that while the Tribunal was obliged to consider each substantial and clearly articulated contention, it was important to keep in mind that the Tribunal was dealing with all of the contentions set out in the section of the ASFICs concerning international non-refoulement obligations, not only the mental health mistreatment claim.

55    The applicant submitted on the appeal that as to the primary judge’s first reason, the judge erred in that there is no indication in the Tribunal’s reasons that the Tribunal understood the news article to relate to the mistreatment claim or that it understood the mistreatment claim to have been made. I reject this submission. The news article was put forward by the applicant as country information confirming the “ill-treatment of people with mental illness in Turkey” and mistreatment is the subject of the article. By dealing with the article, the Tribunal was dealing with the mistreatment claim. Whether another decision-maker would have dealt with the subject differently is not to the point on an application for judicial review.

56    The applicant submitted on the appeal that in other parts of its reasons, the Tribunal addressed the effect on the applicant should he be returned to Turkey and then suffer a serious mental health relapse, but confined its consideration to the extent to which the applicant would be treated differently from Turkish citizens and would be denied basic services. This was evidence not brought to account by the primary judge, so it was said, that the mistreatment claim had been overlooked by the Tribunal. The applicant referred to [108] and [110] of the Tribunal’s reasons, which are set out above. The applicant also referred to [128], [129] and [130] of the Tribunal’s reasons, where the Tribunal dealt extensively with a submission by the applicant that he would not be able to access adequate mental health treatment in Turkey. There is no reference in these paragraphs, the applicant submits, to the mistreatment claim.

57    I do not accept this characterisation of the Tribunal’s reasons. It dealt with the mistreatment claim and the evidence advanced in support of it. It then addressed the claim that the applicant would not receive access to basic services should he suffer a mental health relapse in Turkey.

58    The applicant challenged the other five reasons relied on by the primary judge. I have already dealt with the third, fourth and fifth reasons and the second and sixth reasons were, and were treated by the primary judge as, ancillary contextual matters to be noted.

59    I reject Ground 1 in the Notice of appeal.

Ground 2

60    As I have said, the second ground of appeal raises a ground of judicial review which was not raised before the primary judge and the applicant requires leave of the Court to rely on this ground. The applicant’s reason for not advancing this ground before the primary judge is that “since the hearing before the primary judge, he has received advice from different counsel”. The applicant submits that the ground has sufficient merit and the personal consequences of the Tribunal’s decision for the applicant are sufficiently severe that the interests of justice require that he have leave to advance the ground.

61    In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588, the Full Court of this Court considered the circumstances in which an appellant would be permitted to rely on a ground of appeal not relied on in the Court below. The Court said (at [46]–[48]):

46    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

62    The first respondent submitted that Ground 2 in the Notice of appeal does not have sufficient merit to warrant a grant of leave.

63    The ground which the applicant seeks to raise is that the primary judge erred in not finding that the Tribunal had fallen into jurisdictional error by reasoning in a way that was irrational, illogical or unreasonable. More precisely, the applicant contends that the Tribunal made findings that were plainly or starkly inconsistent.

64    As I have said, Direction 79 identifies as a primary consideration in the decision-making process, the protection of the Australian community from criminal or other serious conduct. This, in turn, requires the decision-maker to consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

65    With respect to the assessment of the risk that the applicant would reoffend, the Tribunal noted the link or “close correlation” between the applicant’s substance abuse and “recidivist offending over 35 years” (at [77]). In a key paragraph in its reasons, the Tribunal found that there was a “convincing likelihood” that the applicant will relapse into drug abuse and commit further offences (at [86]). The full terms of that paragraph are as follows:

Dr Nguyen assesses DGPZ’s risk of relapse and recidivism as ‘somewhere between low and moderate’ in Australia. Having regard for all of the evidence, the Tribunal considers there is a convincing likelihood DGPZ will relapse into drug abuse and commit further offences. That is particularly so for offences involving dishonesty or violence. The risk DGPZ poses to the community is unacceptably high and this primary consideration weighs very substantially against revoking the mandatory cancellation of his visa.

66    Direction 79 identifies as an other consideration, extent of impediments if removed. This involved a consideration of any impediments the applicant may face if he was returned to Turkey. That involved (in this case) a consideration of a number of matters, including the applicant’s past offending, his mental health condition, drug use, risk of reoffending, likely supports, prison conditions in Turkey and mental health services in Turkey.

67    Dr Tram Nguyen is a consultant psychiatrist. She assessed the applicant’s mental health and gave oral evidence before the Tribunal. The Tribunal addressed her evidence in some detail and in the context of extent of impediments if removed, it said the following (at [130(a)] and [130(e)]):

While the Tribunal accepts Dr Nguyen’s evidence as it relates to her qualifications as a psychiatrist, she has no special knowledge or experience about the provision of mental health services in Turkey. Moreover, it emerged during cross-examination that Dr Nguyen was unaware DGPZ had previously lived in Turkey for approximately seven and a half years, giving rise to concerns about her assessment regarding DGPZ’s ability to cope if repatriated. Other aspects of Dr Nguyen’s evidence worthy of note are:

(a)    The Guardian newspaper article she refers to is not apposite to DGPZ’s circumstances. The brief reference to overcrowding in Turkish prisons is nearly two years old, relates to an attempted coup in 2016, and the Turkish Government’s attempts to extradite a non-Turkish citizen from Britain who was suspected of drug trafficking. There is no evidence that DGPZ would be imprisoned in Turkey if returned. Dr Nguyen’s opinion was based on the misapprehension that DGPZ may be immediately imprisoned in Turkey upon return. The submission by DGPZ’s legal representatives that given DGPZ’s ‘long term drug use,’ there is a ‘high chance’ of him ‘ending up in a Turkish prison or in police custody,’ is speculative. That prospect is at odds with DGPZ’s current stable psychological, presentation, submissions about wanting to maintain his abstinence from illicit drugs, desire to return to remunerative work, and intention to live a law-abiding life;

…

(e)    The submission that DGPZ’s risk of ‘turning to drugs in Turkey to alleviate his isolations (sic) and distress,’ which in turn exposes him to risk of harm from the prospect of criminal detention, ‘where conditions are reported as abusive, harsh and degrading, and where basic health and mental health care is not available,’ is speculative.

(Footnote omitted.)

68    With respect to extent of impediments if removed, the Tribunal’s conclusion was that on balance, it accepted that repatriation to Turkey would be very difficult for the applicant after living in Australia for most of his life and found that “this consideration weighs very substantially in favour of revocation” (at [131]).

69    The applicant’s case is that [86], [130(a)] and [130(e)] of the Tribunal’s reasons are addressing the risk or likelihood of events occurring in the future, that is, drug abuse and criminal offending: in [86], in Australia; and in [130(a)] and [130(e)], in Turkey. The Tribunal draws different conclusions about the risk or likelihood, namely: in Australia, a convincing likelihood; whereas in Turkey, speculative. The use of “speculative” suggests insufficient knowledge or information to assess the risk or likelihood. The applicant accepted that the risk or likelihood of events occurring may be different depending on the country which is the subject of the assessment, but submitted that the Tribunal had said nothing to indicate that the difference was to be explained on that basis. The applicant went further and submitted that the underlying findings of the Tribunal about lack of practical or emotional support, challenges in re-establishing himself in Turkey (at [125]) and challenges in accessing healthcare and sourcing prescribed medications in Turkey (at [127]) supported conclusions exactly opposite to those reached by the Tribunal.

70    In response to the applicant’s submissions, the first respondent submitted that having regard to the context in which the findings were made, there was no inconsistency between them. In the alternative, any inconsistency did not rise to the level of the type of irrationality, illogicality or unreasonableness necessary for a decision to be vitiated. In the further alternative, a serious inconsistency in an aspect of an administrative decision-maker’s reasoning does not of itself amount to jurisdictional error and it is the decision itself which must be irrational, illogical or unreasonable. In this case, the decision itself does not bear that characteristic or those characteristics because the error, assuming there was error, was not material in terms of the final decision.

71    The finding in [86] of the Tribunal’s reasons was made in the context of the primary consideration of protection of the Australian community from criminal or other serious conduct and the sub-category of the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. In that context, Direction 79 required the decision-maker to have regard to the likelihood of the non-citizen engaging in further criminal or other serious conduct and, therefore, to make an assessment of the likelihood, “taking into account … information and evidence on the risk of the non-citizen re-offending”. There is no such requirement in Direction 79 for the decision-maker in terms of the likelihood or risk of the non-citizen reoffending in the country to which the non-citizen will be returned if his or her application is unsuccessful. That is not to say that the decision-maker cannot make such an assessment or that a failure to do so cannot amount to unreasonableness depending on the circumstances of the case.

72    In my opinion, if there is inconsistency in this case, it is between the finding in [86] and the finding in [130(a)] of the Tribunal’s reasons. I do not consider that the finding in [130(e)] raises an inconsistency because the matter described as “speculative” involves not only the risk of relapse and recidivism, but also the conditions in detention.

73    Paragraph 130(a) begins by dealing with the risk of the applicant being immediately imprisoned upon his return to Turkey. That is not a matter relating to the risk of relapse and recidivism. The Tribunal then deals with a particular submission made by the applicant’s legal representatives which it characterises as speculative, that given the applicant’s “long term drug use”, there is a “high chance” of him “ending up in a Turkish prison or in police custody”. That proposition is not of itself inconsistent with a finding that in Australia, there was a convincing likelihood that the applicant will relapse into drug abuse and commit further offences. The line is a fine one, but is a difference which precludes a conclusion of stark inconsistency.

74    The applicant sought to gain support for his submission from what the Tribunal then said (at [130(a)]):

…That prospect is at odds with DGPZ’s current stable psychological, presentation, submissions about wanting to maintain his abstinence from illicit drugs, desire to return to remunerative work, and intention to live a law-abiding life …

However, those matters are relevant not to whether there is a risk or likelihood, but its degree or extent.

75    In my opinion, the type of irrationality, illogicality or unreasonableness necessary to give rise to jurisdictional error is not present in this case. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166, the Full Court of this Court said (at [22]):

The following principles concerning judicial review were identified by the Full Court (Murphy, O’Callaghan and Anastassiou JJ) in Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; 280 FCR 1 at [23]-[25]:

23    A finding of illogicality or irrationality requires the court to find that the Tribunal’s decision was one at which no rational or logical decision-maker could have arrived on the same evidence: SZMDS at 657-658 [130].

24    As the Full Court explained in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47] (Griffiths, Perry and Bromwich JJ):

… for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 … at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 … at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result …

25    In DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85]–[86], primarily by reference to the High Court’s decision in SZMDS, the Full Court (Beach, O’Callaghan and Anastassiou JJ) said:

Differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [131]:

The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

Moreover, at [135] their Honours continued:

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.

76    Ground 2 in the Notice of appeal must be rejected.

77    I should record the fact that even if there was serious irrationality, illogicality or unreasonableness in the Tribunal’s reasoning, a further question arises as to whether the decision itself was irrational, illogical or unreasonable.

78    In Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225, the Full Court of this Court said (at [85]):

The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.

(See also Pennie v Minister for Home Affairs [2019] FCAFC 129 at [24].)

79    This is a reflection of the fact that the implied condition of reasonableness by its nature incorporates an element of materiality. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 (MZAPC), Kiefel CJ, Gageler, Keane and Gleeson JJ said (at [33]):

The qualification “ordinarily”, and the focus on conditions required to be observed in the course of a decision-making process, are important. The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another.

(Citations omitted.)

80    As to the requirement of materiality (within the concept of reasonableness), in MZAPC, Kiefel CJ, Gageler, Keane and Gleeson JJ said (at [2]–[3]).

2    Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.

3    The explanation in SZMTA is sound in principle and consistent with precedent. SZMTA ought not to be revisited.

(Citation omitted.)

81    Assuming (contrary to my conclusion) that there was irrationality, illogicality or unreasonableness in the Tribunal’s reasoning of the type alleged by the applicant, the issue then would be whether, had it not occurred, there was a realistic possibility that the decision in fact made could have been different. Both parties approached that issue on the hypothesis that the finding in [130(a)] would have been a finding of “convincing likelihood” instead of “speculative”.

82    The first respondent submitted this hypothesis would not have led to a different result because the finding actually made on extent of impediments if removed was as favourable as it could have been, that is, the matter weighed very substantially in favour of revocation. The applicant’s response to this was that such descriptions as “very substantially” have no fixed value and it was at least a realistic possibility that the weighing exercise would have produced a different result. The point is not an easy one, but had it been necessary for me to reach this point in the analysis, I indicate that I would have accepted the applicant’s submission.

Conclusions

83    I would extend the time within which the applicant may file a Notice of appeal and I would grant leave to the applicant to rely on Ground 2 in the amended Notice of appeal. However, both grounds are rejected and, in the circumstances, the appeal must be dismissed.

Associate:    

Dated:    27 June 2022

REASONS FOR JUDGMENT

WHEELAHAN J:

84    I have had the considerable benefit of reading in draft the reasons for judgment of Besanko J. For the reasons that his Honour gives, I agree that the time for bringing the appeal should be extended, that leave should be given to raise ground 2, but that the appeal should be dismissed.

Associate:

Dated:    27 June 2022

REASONS FOR JUDGMENT

ROFE J:

85    I agree with the reasons of Justice Besanko and with the orders proposed.

Associate:

Dated:    27 June 2022