Federal Court of Australia

EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the respondent to be agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT

Introduction

1    This is an appeal from a decision of a judge of this Court made on 14 November 2022: EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1349 (Primary Judgment or PJ). In that decision, the primary judge dismissed the appellant’s application for judicial review of a decision made by the respondent (Minister) personally on 29 October 2021 to cancel the appellant’s ex-citizen visa pursuant to s 501(3) of the Migration Act 1958 (Cth) (Migration Act) (Minister’s Decision or MD).

2    The facts relevant to this appeal were helpfully summarised by the primary judge at PJ [3]-[11], and are briefly summarised as follows.

3    The appellant has a “serious criminal record”: PJ [4]. On 15 April 2016, he was convicted on four counts of robbery in company which arose from four separate incidents, and was sentenced to eight years and two months imprisonment: PJ [4]. In the first three incidents, the appellant, in company, assaulted and robbed individuals on the street. The fourth incident was described by the sentencing judge as a “case of homosexual bashing”, and involved the appellant luring the victim to an area where he was assaulted by the appellant and his associates: PJ [4].

4    The appellant’s visa was first purportedly cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act on 6 March 2019: PJ [5].

5    On 4 June 2021, the Federal Circuit Court of Australia (FCCA) (as it then was) declared that decision invalid, and ordered the release of the appellant from immigration detention: see EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436. Before that judgment, the appellant applied for a protection visa which was withdrawn upon delivery of the FCCA’s judgment: PJ [6].

6    On 4 June 2021, the Minister personally decided to cancel the appellant’s visa under s 501(3) of the Migration Act: PJ [7]. On 9 July 2021, the appellant sought judicial review of that decision in the Federal Court, and the matter was to be heard before Katzmann J on 1 November 2021: PJ [8]. On 25 October 2021, the Minister informed the Court that he wished to concede the matter without a hearing: PJ [8].

7    On 29 October 2021, at 3:18pm, proposed consent orders were provided to the Court: PJ [9].

8    On 29 October 2021, at 3:20pm, the appellant’s solicitors provided to the Minister material which was said to be “relevant in the event that the Minister intends to again consider cancellation of [the appellant’s] ex citizen visa”: PJ [9] (new material). The new material included: a psychological risk assessment report prepared by Tim Watson-Munro (dated 28 October 2021); a statement from the appellant (dated 29 October 2021); and statements from the appellant’s brother, mother and younger sister (each dated 26 October 2021). The email providing the new material stated that the appellant’s solicitors were preparing submissions and asked that no decision be made until after 2 November 2021, so that those submissions could be taken into account: PJ [9].

9    On 29 October 2021 at 3:54pm, the parties were notified that the orders had been made, requiring the appellant to be released from immigration detention: PJ [10].

10    On 29 October 2021 at 5:41pm, the appellant’s solicitors were informed that the Minister had made a further decision to cancel the appellant’s visa. It is this further decision that is the focus of this appeal: PJ [11].

11    On 14 November 2022, the primary judge dismissed the appellant’s application for judicial review. The appellant appeals from that judgment and advances the following three grounds of appeal:

1.    The primary judge erred in failing to hold that the decision of the respondent (Minister) is affected by jurisdictional error because the respondent failed to engage in an active intellectual process with respect to the material before him for the purposes of making the decision, and/or acted unreasonably in making the decision, on the basis of one or more of the following matters:

a.     the primary judge erred in failing (at [40]) to distinguish Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1578, in circumstances where the new material put forward to the Minister related to a mandatory consideration, namely the potential for the Australian community to be harmed by the appellant’s continued presence in Australia: Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417; [2012] FCA 288;

b.     the primary judge erred in failing to find that the Minister did not consider whether to consider the new material put forward by the appellant (at [42]);

c.     the primary judge erred in finding, implicitly, that it was reasonable or rational in the circumstances for the Minister to choose not to take into account documents provided by the appellant due to a desire to make a “prompt decision in order … to prevent the applicant’s removal from immigration detention” (at [42]);

d.     the primary judge should have found that the Minister failed to consider whether to consider the new material put forward by the appellant, or alternatively failed to consider the new material put forward by the appellant, in making the decision, and that such failure amounted to a failure to engage in an active intellectual process with respect to the material before him for the purposes of making the decision, and/or was unreasonable.

2.     Further or alternatively, the primary judge erred in:

a.     finding that the Minister’s finding (at [67] of the Minister’s decision) that “I consider [EUF20]’s criminal behaviour demonstrative of a person who has an ongoing disregard for law and order” was open on the material before the Minister (at [61]);

b.     finding that the Minister’s conclusion (at [64] of the Minister’s decision) should be understood as meaning that “he was not satisfied that the applicant’s issues had been fully treated or completely resolved” (at [66], emphasis added);

c.     finding that the appellant had not established a conclusion in respect of which there was not a “skerrick of evidence” (at [67]);

and on the basis of one or more of the above errors, erred in failing to find that the Minister’s decision is affected by jurisdictional error because the Minister made critical findings of fact for which there was no evidence or other material before him, namely the findings that the appellant “has an ongoing disregard for law and order” and that certain issues faced by the appellant “remain untreated and unresolved”.

3.     Further or alternatively, the primary judge erred in failing to find that the Minister had acted unreasonably or illogically in making the decision:

a.    on the basis of one or more of the findings referred to in ground 2, being findings as to circumstances presently subsisting as at the time the decision was made;

b.     where the Minister was aware that he was in possession of new information from the appellant bearing upon, or alternatively likely to bear upon, those circumstances and whether the findings referred to in ground 2 were correct; and

c.     without considering whether to consider, or alternatively without considering, that new information.

12    For the reasons which follow, we dismiss the appeal.

Relevant legislative provisions and legal principles

13    Section 501 of the Migration Act outlines when a person’s visa may be refused or cancelled on character grounds. Relevant to this appeal, the Minister may cancel a person’s visa if he or she reasonably suspects that the person does not pass the character test and the Minister is satisfied that the visa cancellation is in the national interest: s 501(3)(c)-(d). The relevant provisions are extracted as follows (as at the time of the Minister’s Decision, being 29 October 2021):

501     Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

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

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

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

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

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

Decision of Minister—natural justice does not apply

(3)     The Minister may:

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

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

if:

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

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

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

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

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

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

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

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

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

(4A)      If the Minister makes a decision under subsection (3) in relation to a person, the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day the decision was made.

(4B)      Subsection (4A) does not apply if:

(a)      the decision was made on the basis that the Minister reasonably suspects the person does not pass the character test because of the operation of paragraph (6)(a), (e) or (g); or

(b)      the person was the subject of an adverse security assessment, or a qualified security assessment, under the ASIO Act when the decision was made.

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

…

501C    Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)

(1)      This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:

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

(b)     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)      except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10))—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 person satisfies the Minister that the person passes the character test (as defined by section 501).

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

…

The primary judge’s decision

14    In the Court below, the appellant advanced four grounds of review, but for the purposes of this appeal, only two of those grounds are relevant (being grounds 2: PJ [33]-[43] and 3: PJ [44]-[68], below). It suffices for present purposes to focus on those aspects of the primary judge’s reasons.

15    By ground 2, the appellant submitted that the Minister’s Decision was affected by jurisdictional error as the Minister had failed to “engage in an active intellectual process with respect to the material before him…and/or acted unreasonably in making the decision”: PJ [33]. Relevantly, the appellant contended that the Minister failed to actively engage with whether he should consider the new evidence in making his decision: PJ [33] (Particulars (d)-(g)).

16    The primary judge summarised the appellant’s submission at PJ [38] as follows:

Secondly, the applicant contended that the Minister did not take into account any of the detailed information which was communicated to him by the applicant’s solicitor on 29 October 2021 in circumstances where an active intellectual engagement required, at the least, consideration of whether to take the material into account. The applicant submitted that the material was: before the Minister at the time that the decision was made; obviously relevant and material to the decision to be made; current information (including expert evidence) going to central issues being considered by the Minister, namely the likelihood of recidivism and the applicant’s prospects of rehabilitation. I interpolate that it was not in dispute that the Minister did not consider this material.

17    The Minister’s submission was summarised at PJ [40] as follows:

In respect of the applicant’s contention that the Minister failed to engage in an intellectual process by not considering the more recent material provided by the applicant (or considering whether to consider that material), the Minister referred to Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758. The Minister submitted that, in Chetcuti, Bromberg J accepted the Minister’s submission that the statutory scheme of s 501(3) – including s 501(5) that provides that natural justice is not required to be given – left no room to imply from “the subject matter, scope and purpose” of the Act, that the Minister’s decision must be made taking into account material provided by the affected person, whether at all or the most recent material. The Minister submitted that on appeal, the Full Court expressed no concern with the Bromberg J’s findings in this respect and had no difficulty with the fact that the Minister had been aware of the documents, but chose not to consider them – see: Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; 288 FCR 657 at [35].

18    The primary judge found that the appellant had failed to establish that it was an unlawful exercise of the Minister’s powers to choose not to take into account the new material: PJ [42]. The primary judge concluded at PJ [42], that:

It is clear from the Minister’s reasons that he was acting promptly in making “a swift decision” because he considered the applicant posed a risk to the Australian community if released. He expressly considered whether he should have afforded the applicant the opportunity of being heard, but determined against that course: at [6] to [8]. I do not infer that the Minister failed to consider whether to consider the new material put forward by the Minister. The applicant has not established that it was an unlawful exercise of the Minster’s powers to choose not to take into account documents provided by the applicant in circumstances where the Minister had not requested such material and desired to make a prompt decision in order (I infer) to prevent the applicant’s removal from immigration detention.

19    By ground 3, the appellant additionally submitted that the Minister’s decision was affected by jurisdictional error as the Minister made critical findings of fact for which there was no evidence or other materials before him and/or was illogical or unreasonable in making those findings: PJ [44]. The two impugned findings of fact were as follows: (1) the appellant’s criminal behaviour was demonstrative of a person who has an ongoing disregard for law and order: MD [67]; and (2) the appellant had longstanding issues relating to his traumatic childhood, lack of family support, perceived differences with his family and his fractured relationship with his father, which appear to remain untreated and unresolved: MD [64].

20    With respect to the appellant’s criminal behaviour, the appellant submitted that the criminal offending described by the Minister “was more than six years before the Minister’s decision” and that there was no evidence to suggest that the appellant “had been charged with, or convicted of, any further criminal offences”: PJ [47]-[48]. With respect to the various “untreated and unresolved” issues, the appellant submitted that there was evidence to suggest he had “evidently received significant trauma counselling and psychological treatment”, that he “spoke to his family daily, and that he had developed a better understanding of his father’s mental illness and developed strategies to deal with his challenging behaviours”: PJ [54].

21    The appellant submitted that the Minister’s findings were “central findings of fact without any probative foundation” (referring to Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 (Hands) at [47]), which resulted in jurisdictional error: PJ [55]. In response, the Minister contended that the so-called “critical step” analysis is not necessarily the correct analysis: PJ [56]. The Minister also submitted that whilst there is authority in this Court which may support the appellant’s submission (namely SZNKV v Minister for Immigration and Citizenship [2010] FCA 56; (2010) 118 ALD 232 at [38]): PJ [57], High Court authority suggests that a “jurisdictional fact” approach is the correct one (citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 (SGLB) at [39]; Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28 (Plaintiff S156/2013); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [31]): PJ [58]. The Minister submitted that whichever approach was followed, the appellant’s contentions had not been made out: PJ [59]. The primary judge then went on to say the following with respect to the Minister’s finding at MD [67]:

[60]     The Minister submitted that the applicant overstated the significance of the Minister’s use of the word “ongoing” at [67], in expressing a conclusion about the applicant’s disregard for law and order. The Minister submitted that, if one reads the Minister reasons in context and in a manner which is not overzealous, what is clear is that the Minister had significant concerns about the applicant’s attitude to law and order, based upon his past criminal offending, including one offence which was “pre-planned”, committed with co-offenders, involving a “cruel and demeaning” physical assault, and was committed in breach of the applicant’s bail: at [65]. It was submitted that the Minister was entitled to form the view he did about the applicant’s attitude to law and order based on his past offending, and observing that the applicant has spent most of the years since his latest criminal offending in 2015 either incarcerated, or in immigration detention. The Minister submitted that there was some “evidence” to support that conclusion.

[61]     I am persuaded that the Minister’s submissions on this issue should be accepted. The Minister’s conclusions at [67] must be read in the context of the reasons as a whole and the context of the particular section in which it appears. The paragraph was one of three under the heading “Pattern of behaviour showing disregard for law”. Read in context, the Minister’s conclusion at [67] was simply that he concluded as a matter of present fact that the applicant had a disregard for law. That conclusion was based on past behaviour as referred to in [65] and [66] and elsewhere in the reasons. A part of the context is that the applicant had spent most of his time since the latest offending either incarcerated or in immigration detention. The Minister’s conclusion at [67], understood in context, was open on the material and not shown to have been reached in an unlawful way.

22    With respect to the Minister’s finding at MD [64], the primary judge summarised the Minister’s submissions at PJ [62] as follows:

As to the Minister’s findings at [64], the Minister submitted that it was incorrect that there was “no evidence” to support the finding that the applicant’s issues as identified by the Minister “appear[ed] to” remain “untreated and unresolved”. The Minister emphasised the language employed by the Minister at [64], noting that the Minister found that, notwithstanding the applicant had had counselling and participated in rehabilitation courses, “longstanding issues described above” (traumatic childhood, lack of family support, perceived differences with his family and his fractured relationship with his father) “appear to remain” untreated and unresolved.

23    The primary judge proceeded to extract the Minister’s reasons leading up to his conclusion at MD [64], and made the following remarks with respect to that finding:

[66]     In my view, jurisdictional error is not established in relation to the finding at [64]. The applicant emphasises the language used by the Minister that issues “remain” untreated and unresolved. In context, the Minister’s conclusion should be understood as being that he was not satisfied that the applicant’s issues had been fully treated or completely resolved. This conclusion was one which was open on the material. The Minister expressly took into account that the applicant had taken steps to receive treatment for at least some of his issues. He took into account the evidence from the applicant’s brother and the applicant’s December 2020 statement. He referred at [56] to the STARTTS report noting the applicant’s fractured relationship with his father due to a history of physical punishment inflicted by the father, and to the applicant’s comment that he “does not get on well with his family as he sees himself as being different to them”. There was material before the Minister from which a rational conclusion could be drawn that the applicant continued to suffer from mental health issues and that he had not fully recovered from his earlier mental health issues. There was material from which it could rationally be concluded that, if released into the community, the applicant would need to continue treatment or the taking of medication. The Minister’s conclusion at [64] was not the only one that could be drawn from the material. However, it was the Minister’s evaluative judgment based on material from which differing conclusions were open.

[67]     The applicant has not established that the Minister formed a conclusion, affecting his decision, in respect of which it can be said that there was not a “skerrick of evidence”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17].

24    The primary judge dismissed the application.

Grounds of Appeal

Ground 1

25    There is an intersection in the analysis of, and the submissions made by the parties with respect to both grounds 1 and 3. Those grounds of appeal are premised, albeit on different bases, on the Minister’s obligation in exercising the power under s 501(3) of the Migration Act (where the rules of natural justice do not apply: s 501(5)), where the Minister receives unsolicited information from an applicant. The grounds of appeal raise questions of whether the Minister is required to either, first, consider whether to consider that information, and second, in fact consider that information.

26    The appellant submitted that the Minister was required to, first, and at a minimum, consider (rationally and reasonably) whether to consider the new material and, second, consider the new material, at least insofar as it bore upon the mandatory consideration of the potential for the Australian community to be harmed by the appellant’s continued presence in Australia. This submission was said to be based on the fact that an aspect of the reasonable exercise of the power under s 501(3) of the Migration Act is that the Minister engage in an active intellectual process in assessing the merits of the appellant’s case before him: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 (Plaintiff M1/2021) at [25]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [46].

27    The appellant submitted that even if there is no duty to take account of information, the Minister was obliged to reasonably consider whether to consider the new material, particularly given that the Minister was aware he did not have up-to-date information, the appellant was legally represented, and the Minister’s Decision was being made in the context of a prior decision being quashed by consent orders. It was submitted that rational decision-making in these circumstances required the Minister to consider whether to consider the new material, which would involve at least an appreciation of what the new material was, what relevant considerations it might pertain to, how much new material had been provided, and how long it would take to consider the new material.

28    The appellant submitted that the primary judge’s finding at PJ [42], where his Honour did not infer that the Minister failed to consider whether to consider the new material, was erroneous. Two reasons were advanced: first, the evidence did not support the proposition that the Minister considered whether to consider the new material and determined not to do so, and, second, in any event, in the circumstances it would have been unreasonable for the Minister to determine not to consider the new material. The appellant submitted that had the Minister considered whether to consider the new material, but determined not to do so, it would be expected that a statement to that effect would have appeared in the Minister’s Decision, which it does not.

29    Further, it was submitted that in the circumstances, the Minister, acting reasonably, would have determined to consider, and would then have considered, the new material in determining whether to cancel the appellant’s visa. This was said to be based on the fact that the new material was, on its face (and on the face of the description in the covering email) obviously relevant and material to a mandatory consideration, namely the potential for the Australian community to be harmed by the appellant’s continued presence in Australia. This was so, it was submitted, because the new material contained current information concerning the appellant’s likelihood of recidivism and prospects of rehabilitation, including the only expert evidence available, being a psychological risk assessment report.

30    The appellant submitted that the Minister’s findings as to the “ongoing risk” of re-offending did not suggest an immediacy of risk to the Australian community that could ground a reasonable refusal to engage with the new material. That was because the consent orders were made on a Friday afternoon, and the appellant (who was in immigration detention on Christmas Island) had not been given a plane ticket to return to Australia until Sunday, between 24 and 48 hours later, which was ample time to engage with the new material.

31    The appellant further submitted that Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758 (Chetcuti) is distinguishable, and that the primary judge erred at PJ [40] in failing to so find. The bases for this submission were that the new information in Chetcuti did not deal with a mandatory consideration; and the argument advanced in Chetcuti concerned whether the Minister was under a free-standing obligation to have regard to the most up-to-date information available to him, which said nothing of the quality nor the significance of the information to the decision being made. The argument advanced by the appellant in this case was said to be distinct from that advanced in Chetcuti because it was concerned with whether it was unreasonable not to consider the new material given its particular character and relevance to a mandatory consideration under s 501(3) of the Migration Act.

32    The appellant emphasised that although an obligation to consider new material did not arise in every case, it did so here because the most recent information before the Minister was stale (being 10 months old), the Minister’s Decision was following the quashing of a previous cancellation, the appellant was in detention on Christmas Island (“and so no immediate threat to the Australian community”), the appellant was legally represented, and the new material had been attached to an email which succinctly summarised it. The appellant also highlighted that it would not have been burdensome to consider the new material as it was not particularly lengthy, being only 35 pages long.

33    The appellant made the submission that it is not to the point that s 501(5) of the Migration Act gives the Minister the option of proceeding without affording natural justice. It was contended that it is one thing for a decision-maker to determine in advance of a decision not to provide an affected person with an opportunity to be heard, but it is quite another for the decision-maker to determine not to consider information which the affected person provided prior to the decision being made. Though the Minister was at least aware of the new material, the Minister admitted that he had not even considered the covering email which outlined the nature and relevance of the new material, which in the appellant’s submission, indicated that the Minister could not have made any rational decision not to consider the new material. Furthermore, s 501(5) does not, it was submitted, oblige or permit the Minister to proceed by paying no regard to information already in his possession. The appellant further submitted that s 501(5) does not relieve the Minister of the implied obligation to act reasonably when forming a state of satisfaction or exercising a discretion.

Consideration

34    The appellant’s submissions cannot be accepted.

35    It is appropriate at the outset to make some observations about the statutory scheme.

36    The Minister made a decision under s 501(3) of the Migration Act. Relevantly, that section empowers the Minister to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test, and is satisfied that the cancellation is in the national interest. As a starting point, the Migration Act expressly states that the rules of natural justice do not apply to the making of such a decision: s 501(5). Natural justice involves an entitlement on the part of the person affected by the exercise of the power (to be given a reasonable opportunity to be heard, to have adverse information relevant to the exercise of the power drawn to her or his attention, to be fairly apprised of the matters which might lead a decision-maker to exercise the power adversely to the person, and so on), and involves a corresponding legal obligation or duty imposed on the decision-maker: Chamoun v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75 (Chamoun) at [78].

37    That being so, as the Minister submitted, s 501(5) contemplates or envisages that the power under s 501(3) may be exercised where the Minister has less than a full picture because the person who is in a position to most directly inform the Minister of relevant factual information about the circumstances in which the power is to be exercised is not required to be given an opportunity to be heard. It follows, as a matter of logic, that s 501(5) contemplates or envisages that the Minister may proceed on the basis of information which is not up to date. That is not to suggest that the Minister does not have the power to obtain further information before exercising the power: Chamoun at [79].

38    Nevertheless, the power under s 501(3) must be exercised reasonably. The Minister must engage in an active intellectual process in assessing the merits of the case before him: Plaintiff M1/2021 at [25]-[26]; Carrascalao at [46]. Whether the Minister failed to engage in an active intellectual process with respect to the new material ultimately was a question of fact for the primary judge to determine. Whether any such failure as found resulted in jurisdictional error involved a question of law, based on the proper construction of the statute (as explained above): see for example, Plaintiff M1/2021 at [25]-[27].

39    The statutory scheme also includes s 501C, which identifies the scope of the requirement to provide a written notice that sets out the original decision and particulars of relevant information: s 501C(3)(a)(i)-(ii). “Relevant information” is defined in s 501C(2) of the Migration Act. Section 501C is to be contrasted with s 501G (relating to refusals and cancellations under s 501(1) and (2), s 501A(2), s 501B, s 501BA, s 501CA and s 501F), which requires the provision of reasons for the decision: s 501G(1). As can be seen, s 501C(3) imposes a lesser duty than s 501G, as the requirements in s 501C(3) are rather spare, while s 501G requires reasons for the decision to be provided.

40    In this regard, the appellant relied on the observations of Charlesworth J at [44] of Stevens v Minister for Immigration and Border Protection [2016] FCA 1280; (2016) 153 ALD 346 (Stevens):

Where there exists a statutory obligation to give reasons of the kind prescribed in s 501G or s 430 of the Act, the Court may draw certain inferences from what is not expressly set out in the Reasons as much as it may draw an inference from that which is expressly set out: see for example Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) and Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431. However, where the obligation to give notification of a decision is more confined (such as that imposed under s 501C(3)), the Court should, in my opinion, proceed with more caution before drawing inferences adverse to the Minister, whether from an absence of content, or from the manner of expression, or from the structure and layout of the document in question, unless it is evident in the particular case that the Minister did indeed intend to furnish an affected person with a comprehensive statement of reasons independently of any statutory obligation to do so.

41    The appellant places weight on the qualification in the last sentence of that passage, submitting that the reasons in this case fall within that description.

42    The Minister referred to Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 (Plaintiff M64/2015), a decision not referred to in Stevens. At [25] of Plaintiff M64/2015, French CJ, Bell, Keane and Gordon JJ observed (citations omitted):

It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate’s letter is “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.

43    It may be accepted that the reasons for decision in this case are more detailed than those in Plaintiff M64/2015, which are set out at [19] of that case. Nonetheless, the above passage from Plaintiff M64/2015 reflects that the principle “that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; and see Plaintiff M1/2021 at [38]), may apply with particular force where the decision-maker was not duty-bound to give reasons.

44    Against this background, we do not accept the appellant’s submission that there was an obligation on the part of the Minister to consider the unsolicited material that was received. The power under s 501(3) is clear. As the Minister submitted, it is a broad power where the principal constraint, as identified in Carrascalao at [56], is a Parliamentary one, as set out in ss 501(3) and (4) of the Migration Act. Subsections 501(3)-(5) contemplate that a decision will be made with less than the full picture, including “on the basis of stale information”. It was ultimately the purview of Parliament to exercise any constraint on that power if necessary.

45    In any event, for the reasons that follow, we are of the view that it can be inferred that the Minister did, as the primary judge concluded, consider whether to consider the new material. Given the statutory scheme, even if it was necessary to consider whether to consider the new material, we do not accept that it was necessary, in doing so, for the Minister to consider the email sent by the appellant’s solicitors, or its contents. We note that the primary judge’s finding at PJ [42] reflects that the new material was not itself considered. That factual matter was not in dispute: see PJ [38].

46    We accept the Minister’s submission that on an inferential analysis of the communications which were before this Court and the Court below, it can be inferred that the Minister was aware of the existence of the new material. This inference was open on the bases set out by the primary judge at PJ [42], recited above at [18].

47    We accept what his Honour says that, by reason of what is contained at MD [6]-[8] (extracted below), it is open to infer that the Minister considered whether to consider the new material:

[6]     Under s501(5) of the Act, the rules of natural justice do not apply to a decision under s501(3). This means that I am not required to apply the rules of natural justice when making a decision under s501(3)(b), by giving the affected person an opportunity to be heard before making the decision. I am aware however that the Full Federal Court has held that s501(3) does not prohibit me from affording such an opportunity should I elect to do so.

[7]     Therefore, proceeding to consider [the appellant’s] visa cancellation under s501(3), I could have elected to invite [the appellant] to comment on topics or information of my choosing, and could also have chosen the timeframe by which he is to respond. The matters in relation to [the appellant] on which I could have provided him an opportunity to comment include but are not necessarily limited to, the national interest (including the risk of [the appellant] engaging in further criminal or other serious conduct) and discretionary considerations such as the best interests of any minor children, strength, nature and duration of ties to the community, the impact of visa cancellation on [the appellant] (such as any risk of harm if he returned to his home country, or impact on his health), as well as the impact on his family members and friends.

[8]     However, I chose to proceed under s501(3)(b) without giving [the appellant] an opportunity to be heard on any points before making my decision. As explained further below, I consider that [the appellant] poses a risk to the Australian community which the Australian community should not tolerate. I have therefore decided to make a swift decision to cancel [the appellant’s] visa without giving him an opportunity to be heard in advance of that decision to minimise the time he spends in the community.

48    In addition, there were a number of emails in the period between 29 October 2021 at 3:26pm and 3:56pm on the same day in which it was apparent that the Minister’s Department circulated Ms Bones’ email (which summarised and attached the new material) widely. This is demonstrated, in particular, by the email sent at 3:34pm on 29 October 2021, and critically, by the email sent to the Minister’s advisor at 3:56pm on 29 October 2021.

49    It is also apparent from the evidence, consistent with the finding made by the primary judge at PJ [42], that the Minister was acting promptly in making “a swift decision”, which is described as such at MD [8], extracted above at [47]. We accept the Minister’s submission that it is clear from the Departmental communications that it was anticipated by the Minister’s Department the week before consent orders were sent up to Katzmann J’s Chambers, that there would need to be a decision about whether or not to independently make a decision once the consent orders were made. It is also clear that in the week leading up to 29 October 2021, consideration was given as to why there was a necessity for a prompt decision. It can be inferred that the Minister wanted to make a swift decision, and by the swiftness of making that decision, decided not to consider the new material. By way of illustration, just over a week before the consent orders were made, correspondence from the “Director, Complex and Controversial Cases” to “Jack” (who it was agreed was the Minister’s adviser) noted the submission and brief in terms of what would need to go to the Minister after the Federal Court had made the consent orders, and sought first the Minister’s views on “whether he wishes to consider cancelling [the appellant’s] Ex-citizen visa after it is reinstated and, if so, when he may wish to do that” (emphasis added). The second indicator that the Minister was acting promptly in making a swift decision, is that the submission attached to the email to the Minister’s adviser notes, as part of the detainee’s (that is, the appellant’s) background, that the detainee:

[I]s currently detained on Christmas Island, the Department is making arrangements for his transfer to the mainland, should it be required, noting that, due to limited availability of flights, there will be a short period were [the appellant] will remain in the community on Christmas Island.

50    There was a response to the communication from the Minister’s adviser later in the day where the Minister’s adviser stated that he had:

…previously discussed the case with the Minister who is minded to promptly see another submission if [the appellant’s] visa is reinstated. As the Minister’s views are already known, I will not be returning a signed copy of MS21-002409 to you.

51    It is clear that from very early on in the process, the Minister was wanting to make sure that a decision would be made and there was importance to it being dealt with promptly. This was reinforced by an email the following day on 22 October 2021 from the “Assistant Secretary, Character and Cancellation Branch” to the Minister’s adviser, which attached a PDF version of the submission, and stated:

As advised/discussed this material will potentially need to be considered urgently and therefore I am providing to you electronically out of hours. The submission is also being progressed through the PDMS process.

52    Acknowledgment is received of that communication from the Minister’s adviser on Saturday 23 October 2021 at 9:14am.

53    On Monday 25 October 2021 at 12:15pm, the “Assistant Secretary, Character and Cancellation Branch” sent to the Minister’s adviser via email an updated statement of reasons, and noted that “this has been progressed through PDMS for priority clearance to Minister Hawke’s office, with the hardcopy arriving today”, again suggesting a degree of urgency which is responded to in like-kind by the Minister’s representative two minutes later on the same day, thanking the Assistant Secretary and saying “I will substitute them immediately.”

54    This reveals, consistent with the inference which was identified by the primary judge at PJ [42], and PJ [81] (extracted below), that the Minister’s office was in possession of the materials which the Minister ultimately considered in making the decision some days in advance of doing so and, as we have said, had already considered much of that material on an earlier occasion:

I accept that 79 minutes elapsed from the time the Minister was informed that the consent orders had been made until the time the decision was made. It does not follow from this that the Minister only had 79 minutes to consider the merits of the decision. The Minister’s office was in possession of the materials which the Minister ultimately considered in making the decision some days in advance and, as I have said, had already considered much of that material on an earlier occasion. I do not infer that the Minister gave no consideration to the merits until he was informed that the prior decision had been set aside by consent.

55    Again, this reflects the desire to make a swift decision.

56    For the reasons above, even if there was an obligation to consider whether to consider the new material, on the evidence before the primary judge, it is capable of being inferred that that in fact had occurred. No error has been established in the primary judge’s conclusion that it could be inferred that the Minister considered whether to consider the new material.

57    We do not accept the appellant’s alternative contention in ground 1, that by making a prompt decision and not having regard to the new material, the primary judge erred in finding (implicitly) that this was reasonable or rational in the circumstances. In support of this contention, the appellant sought to distinguish Chetcuti. Such a contention is misplaced. In Chetcuti (undisturbed on appeal: Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; (2021) 288 FCR 657), Bromberg J stated at [57]:

In my view, the decisive issue here is whether there was any obligation upon the Minister to take into account the most up to date information available to him in the context of s 501(5) providing that the rules of natural justice do not apply. As the Minister contended, s 501(5) contemplates that the Minister may form the satisfaction required by s 501(3)(d) – that the cancellation of the visa is in the national interest – without ascertaining what, if anything, the affected person has to say about that topic. There is therefore no room to imply from “the subject matter, scope and purpose” (Peko-Wallsend at 45) of the Act, that the Minister’s decision must be made on the basis of material provided by the affected person being taken into account at all, let alone that the most recent of material so provided must be taken into account.

58    Although Mr Chetcuti did advance a Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (Peko-Wallsend) submission (that is, “that the Minister is bound to consider submissions put to him by parties who may be adversely affected by a decision”: Peko-Wallsend at 46) relating to a mandatory consideration, it is apparent that the argument was not so confined. There the Minister contended that, “in any event, there is no scope to imply a legal obligation on the part of the Minister to take into account the most up-to-date information because s 501(5) makes it clear that a decision may be made pursuant to s 501(3) without the Minister providing natural justice”: Chetcuti at [55].

59    As in this case, Chetcuti involved an unsolicited representation received by the Minister, where it was submitted that the Minister fell into error because he failed to consider it.

60    The Minister also drew attention to Bromberg J’s reasoning in respect of ground 1 in Chetcuti, being the submission that because the material was so important, it could be inferred that the Minister assumed that he could not have regard to that material by reason of s 501(5): see Chetcuti at [11], [15], [28] ff. The Minister submitted that the submissions there advanced were very similar to those of the appellant in this case. Bromberg J at [46]-[47] of Chetcuti observed:

[46]    It is appropriate to consider what a reasonable decision-maker would likely have done in the postulated circumstances faced by the Minister. I accept that it would be odd for a reasonable decision-maker to consider and evaluate issues of significance upon outdated material in circumstances where relevant updating material was known to be available. It might be expected that a reasonable decision-maker intent on making the best possible decision would grapple with the new material rather than spend time and effort considering material which was known to have been overtaken by more recent information. That the decision-maker ignored more recent information on an issue of significance may suggest that the decision-maker took the view that the more recent information could not be received and taken into account.

[47]    However that reasoning urged upon me by Mr Chetcuti, involves the making of a number of assumptions which I am not persuaded I ought to make. It may well be that the Minister understood that he was not prohibited from taking the further submission into account but chose not to do so because of the delay that would be occasioned if he did. It is clear from the factual context described above that the Minister was working on the basis that if the Full Court found in favour of Mr Chetcuti, the Minister would need to urgently consider whether Mr Chetcuti’s visa should be cancelled. That was likely to be the case because any delay in making a decision would have required that Mr Chetcuti be released from detention and placed into the Australian community. Mr Chetcuti’s contention that the further submission was relatively short and would not have taken long to read ignored the fact that, if the Minister had decided to take into account that submission, he would likely have wanted the material to be assessed by the Department and to have received advice as to both its reliability and significance. Accordingly, the Minister may have given priority to the perceived need for the decision to be made urgently over the need to make his decision on the best available information.

61    The Minister submitted that the reasoning in [47] of Chetcuti is akin to what should be applied in this case. It was submitted that it was within the power of the Minister to choose to make a decision without taking into account the new material, and that an assessment of the relative value or importance of the proffered information (as contended for by the appellant) is therefore irrelevant to determining whether the Minister’s Decision was within the scope of the power in s 501(3). The Minister submitted that the relevance of the new material to the assessment of whether the appellant posed a risk of harm to the Australian community was incapable of negating the exclusion of the rules of natural justice in relation to an exercise of power under s 501(3) of the Migration Act. That may be accepted.

62    As explained at [49]-[55] above, the evidence in this case established that the Minister considered that the exercise of the discretion would need to occur promptly, because of the risk the appellant poses to the Australian community. We agree with the Minister’s submission that that provides a rational reason for the Minister’s Decision.

63    The appellant’s submission that there was no urgency given the lack of immediate threat to the Australian community by reason of the appellant remaining on Christmas Island for another 24 to 48 hours (due to the limited number of flights) is misconceived. As highlighted by the Minister, it is entirely unclear why, if there is a risk to the community if the appellant is released, it is suggested the community on Christmas Island is not deserving of the same protection as those on mainland Australia. That said, it is clear that the appellant’s release from detention, the orders having been made, was properly imminent.

64    The appellant’s submission that the Minister’s Decision being made on the basis of material which was stale by a period of 10 months (which in our view is not a lengthy period) does not lead one into the bounds of unreasonableness given the statutory scheme. As explained above, the statutory scheme contemplates that a decision may be made on the basis of a less than complete picture. The question is not whether it would have been preferable for the Minister to have considered the new material. A court “should not interfere with an administrator’s exercise of a discretion just because the court would have exercised the discretion in a different way”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [86].

65    As recognised in the Minister’s submissions, the threshold for legal unreasonableness is high: SZVFW at [11], [52], [89] and [135]; cited in Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 (DUA16) at [26]. The “test for unreasonableness is necessarily stringent”, and “the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”: SZVFW at [11], and see SZVFW [52], [89], and [135].

66    Finally, the appellant’s submission that the new material went to a mandatory consideration and therefore the failure to consider it was unreasonable, cannot be accepted. As the Minister correctly submitted, that a particular matter is a mandatory relevant consideration does not mean that every circumstance which bears on that matter is itself such a mandatory relevant consideration: Hooton v Minister for Home Affairs [2018] FCAFC 142; (2018) 264 FCR 517 at [61]. The legislation contains no obligation on the Minister to consider the new material: Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at [23]. To the contrary, s 501(5) of the Migration Act expressly excludes the principles of natural justice.

67    The Minister aptly describes the appellant’s submission as “an attempt indirectly to impose the requirements of natural justice in the face of a clear legislative intention in s 501(5) that exclude such requirements”: see for example, Vargas v Minister for Home Affairs [2021] FCA 276 at [33] (appeal dismissed: Vargas v Minister for Home Affairs [2021] FCAFC 162; (2021) 286 FCR 387).

68    For these reasons, ground 1 is not established.

Ground 2

69    The appellant submits that the power in s 501(3) of the Migration Act is subject to a subjective jurisdictional fact, namely the Minister’s satisfaction that the visa cancellation was in the “national interest”. The appellant submitted that an absence of evidence to support a finding which is material or critical to the formation of the requisite state of mind will amount to jurisdictional error: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 (Splendido) at [104]-[109]; Hands at [32], [45]-[46]; Guclukol v Minister for Home Affairs [2020] FCAFC 148; (2020) 279 FCR 611 at [16]-[18].

70    Ground 2 focuses on two findings. First, that the Minster “consider[s] [the appellant’s] criminal behaviour demonstrative of a person who has an ongoing disregard for law and order”: MD [67] (emphasis added). Second, the Minister’s conclusion that “[w]hilst [the appellant] has had psychological counselling and participated in some rehabilitative courses whilst incarcerated and detained, the longstanding issues described above, namely his traumatic childhood, lack of family support, perceived differences with his family and his fractured relationship with his father appear to remain untreated and unresolved”: MD [64] (emphasis added). In respect of each, it was submitted that there was not a “skerrick of evidence” in support of the findings - the appellant’s last offence occurred more than six years before the Minister’s Decision such that it was impossible to logically conclude that the appellant had an “ongoing” disregard for law and order; and the appellant’s need for continuing treatment of a mental health condition could not logically provide the basis for finding that the appellant’s mental health was “untreated” or “unresolved”.

Consideration

71    We disagree with the appellant’s submission that there was not a “skerrick of evidence” in support of the Minister’s findings. As submitted by the Minister, “no evidence” in the context of an administrative decision is a reference to there being no “material which could rationally affect the decision-maker’s assessment of the probability of the facts in issue”: D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242 at [235]; Australian Postal Corporation v D’Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [50]. For the reasons that follow, the appellant has failed to meet the very high bar of demonstrating that there is not even a “skerrick of evidence” to support the Minister’s impugned conclusions: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 395 ALR 403 (Viane) at [17].

72    In this Court, as before the primary judge, the Minister submitted that there is an issue in relation to Hands and Splendido, and the extent to which they are affected by the High Court’s reasoning in SGLB and Plaintiff S156/2013. We are of the view that it is not necessary to resolve these issues because, in essence, the ground fails on its face.

73    What is clear, as is accepted by the appellant, is that the existence of a “skerrick of evidence” in itself is sufficient: Viane at [17]. Consistent with the reasoning of the primary judge in relation to each of the Minister’s findings, it was open for the primary judge to find as his Honour did. The passages from the Minister’s Decision are not to be read in the manner that the appellant urges. No error has been established.

74    In relation to the Minister’s finding as to the appellant’s “ongoing disregard for the law”, the primary judge rejected the appellant’s submission at PJ [60]-[61]. His Honour’s reasoning cannot be impugned.

75    The passage complained of appears at MD [65]-[67] under the heading “pattern of behaviour showing disregard for law”. The passage is as follows:

Pattern of behaviour showing disregard for law

[65]     Apart from the serious criminal conduct I have considered above, I have also taken into account the nature of [the appellant’s] other criminal offending. I note that [the appellant’s] most recent criminal conduct involved an innocent victim being lured into a late night meeting. [The appellant] and his co-offenders set upon the victim and physically assaulted him in a cruel and demeaning way when the victim was highly vulnerable. The conduct was pre-planned and it was committed by [the appellant] in breach of bail. This conduct is unacceptable.

[66]     I have had regard to [the appellant’s] prior offending of larceny, possessing an unauthorised pistol and goods suspect stolen in premises. I consider that this conduct is unacceptable.

[67]     I consider [the appellant’s] criminal behaviour demonstrative of a person who has an ongoing disregard for law and order. This presents a risk to the Australian community that he may re-offend.

76    That extract should not be read in isolation.

77    As to the appellant’s submission that the last instance of criminal offending occurred more than six years before the Minister’s Decision, we note that the appellant had spent most of his time since the latest offending either incarcerated or in immigration detention: see PJ [61]. Moreover, as the Minister correctly contended, disregard for law and order does not refer merely to a breach of the criminal law. It refers to a disregard for the system of law generally. That includes, for example, the law which provides for prison authorities to impose certain rules and order. To that end, the Minister considered the appellant’s conduct in prison and immigration detention, both of which we consider provided support for his finding at MD [67].

78    At MD [72]-[73], the Minister addressed the appellant’s conduct in prison as follows:

[72]    I have considered [the appellant’s] conduct whilst he was incarcerated. [The appellant] was involved in the following incidents in prison Attachment C;

•    Being involved in a fight or physical combat on 16 February 2020.

•    Disobeying a direction on 19 August 2018.

•    Refusing or failing a drug sample on 1 July 2018.

•    Possessing tobacco on 27 April 2018.

•    Entering other cells on 30 March 2018.

•    Damaging or destroying property on 26 October 2015.

•    Intimidation on 15 September 2015.

[73]     [The appellant] continued to engage in conduct that was violent, intimidating or was in breach of the rules whilst incarcerated. His failure to abide by the restrictions of prison causes me concern that he is likely to re-offend outside of a controlled environment.

79    The Minister then addressed the appellant’s conduct in immigration detention at MD [74]-[77]:

Conduct in immigration detention

[74]    On several occasions [the appellant] has been found to have in his possession unknown organic and ‘white’ substances and paraphernalia which was consistent with drug use. During two of these incidents, [the appellant] may have been involved in the distribution of banned substances to other detainees Attachment E. In his personal statement submitted as part of his application for a Protection visa, he denies that he has used drugs whilst in immigration detention and claims to have been drug free for five years Attachment I1. The substances and paraphernalia located in connection with [the appellant] suggests otherwise, although the items were located in [the appellant’s] accommodation that he shared with others. This causes me concern as it suggests that [the appellant] may not have reformed his substance abuse issues, despite his period of incarceration, and detention and claims of rehabilitation.

[75]     Whilst in immigration detention, [the appellant] has been involved in incidents involving violence or aggression. He was involved in a physical assault against another detainee - the circumstances of that incident remain unclear Attachment E. In his personal statement submitted as part of his application for a Protection visa, [the appellant] maintains that he was not involved in the incident and that he walked into the scenario after an altercation between other detainees occurred Attachment I1. In another incident, [the appellant] displayed aggressive behaviour towards detention centre staff and attempted to involve himself in an incident with another detainee leading to [the appellant] being physically restrained Attachment E. [The appellant] states that he intervened in the scenario after he witnessed officers put another detainee to the ground. He states that he approached the officers and asked them to be professional Attachment I1. Furthermore, on several occasions, [the appellant] has deliberately smoked inside the detention centre, activating smoke alarms and leading firefighters to being called on site Attachment E.

[76]     [The appellant’s] behaviour in detention has been disruptive and shows a lack of regard for authority and for the rules. His conduct causes me to believe that he will be unable to control his behaviour in the community and shows an increased risk of him re-offending.

[77]    Whilst [the appellant] has submitted some evidence of rehabilitation, it concerns me that his apparent continuation of intimidating conduct persists, despite his rehabilitative efforts. He may have continued to engage in drug use whilst in detention suggesting he may have an ongoing problem with drug addiction, despite his participation in rehabilitation courses.

80    This leads to the conclusion at MD [79] in relation to the protection of the community:

I have considered the nature of the harm caused by [the appellant] from his offending. I have considered his conduct whilst incarcerated and detained. I have considered his reliance on substance abuse to deal with his personal problems and his psychological state. I have considered his attempts at rehabilitation and his fractured rapport with members of his own family. I have considered that [the appellant] has had time to reflect on his conduct during his incarceration and detention and that he has expressed elements of remorse for his conduct. I consider his remorse self-serving however, particularly in light of his behaviour whilst incarcerated and detained. I cannot be satisfied that [the appellant] has sufficiently reformed his behaviour to the extent such that he will not re-offend. I find that there is an ongoing risk that he will re-offend and cause serious physical, psychological and/or financial harm to individuals and to the broader Australian community, and I therefore conclude that this makes him an unacceptable risk to the Australian community.

81    A proper reading of the Minister’s Decision reflects that there is material in support of the Minister’s conclusion at MD [67].

82    As to the second finding, the Minister’s use of the phrase “untreated and unresolved” (relied upon by the appellant in support of this ground) must also be read in context. The statement appears in MD [64], but in the context of MD [62]-[63]:

[62]    [The appellant] advised medical staff in the detention centre that he had some psychological counselling whilst he was incarcerated. His diagnosis of PTSD appears to have been made during his incarceration Attachment O.

[63]     In his personal statement to the Department furnished as part of his request for revocation, [the appellant] states that he started to see a psychologist whilst he was incarcerated and this appeared to be beneficial to his psychological state. He states, ‘I started talking to a psychologist soon after I got to gaol. I opened up to the psychologist. She was good at using different strategies to help me. I have a much better understanding about my mental health. I think if I had this support before, things could have been different’ Attachment I1. In submissions to the Department, [the appellant’s] representative contends that ‘the extensive rehabilitation completed by [the appellant] is a strong consideration to indicate he does not present a danger to the community’ Attachment M.

[64]    Whilst [the appellant] has had psychological counselling and participated in some rehabilitative courses whilst incarcerated and detained, the longstanding issues described above, namely his traumatic childhood, lack of family support, perceived differences with his family and his fractured relationship with his father appear to remain untreated and unresolved. I find that this presents a risk to the Australian community that [the appellant] may re-offend.

83    In addition, the Minister details rehabilitative programs at MD [59]-[61]. This is also in the context where the Minister considers matters (at MD [49]-[53]) relevant to the appellant’s mental health issues, concluding at MD [53]:

I acknowledge that [the appellant’s] mental health continues to be an issue for him. [The appellant] has had some therapy whilst incarcerated and he now takes medication to control his symptoms. However, it is unclear what the effect of [the appellant’s] mental health might have if he were released into the community outside of a controlled environment without having had appropriate treatment to deal with his longstanding issues. Indeed, if he were unable to sufficiently control his symptoms with continued therapy and treatment, his mental health may deteriorate and increase the risk that [the appellant] will re-offend.

84    It is plain from those passages that the Minister was aware that the appellant had taken steps in respect of treatment and rehabilitation, including in respect of his family. The consideration is detailed. As contended for by the Minister, the existence of evidence that pointed to the mending of relationships and the taking of steps to receive treatment for some of his issues did not mean that there was “no evidence” to find that such issues appeared unresolved.

85    In that context, the phrase in MD [64] that the appellant’s longstanding issues “appear to remain untreated and unresolved”, is to be understood as referring to fully treated and fully resolved. There was material before the Minister which supported that conclusion. That there was some material pointed to by the appellant that there had been some mending of relationships does not detract from that conclusion.

86    It is necessary for the appellant to show that there is not even a “skerrick of evidence” to support the Minister’s impugned conclusions. Having considered the material before the Minister, and the Minister’s Decision itself, we agree with the Minister’s submission that the appellant has failed to meet that very high bar.

87    Ground 2 is not established.

Ground 3

88    Ground 3 is related to ground 1. The appellant asserts that having chosen to make findings as to circumstances presently subsisting at the time the decision was made, being the appellant’s “ongoing disregard for law and order” and “untreated and unresolved” issues, it was unreasonable for the Minister to then not consider the new material. The appellant submitted that this resulted in the Minister’s findings on those matters being illogical. This is because, it was contended, the new material demonstrated that the appellant had expressed his respect for the law, recognised the importance of safety in the community as well as “a strong desire to maintain a crime and drug free existence”; and that the appellant had made progress in repairing his familial relationships and in respect of his mental health, both of which had positive implications for his risk of reoffending.

89    For the reasons given in respect of ground 1, ground 3 is not established.

Conclusion

90    The appellant has not established the grounds of appeal. Accordingly, the appeal is dismissed, with costs.

Associate:

Dated:    15 August 2023