FEDERAL COURT OF AUSTRALIA

Buchwald v Minister for Immigration and Border Protection [2016] FCA 101

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    On or before 1 March 2016, the applicant file and serve any submission in relation to the costs of the application, and any affidavits in support.

3.    If the applicant files and serves any submission in relation to costs pursuant to Order 2, then on or before 8 March 2016 the respondent file and serve any submission in relation to the costs of the application, and any affidavits in support.

4.    Should no submission as to costs be made pursuant to Order 2, the applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant, Mr Julian Buchwald, is 30 years old. He was born in Germany in 1985 but left aged one. Since 21 November 1986, he has resided in Australia. As the respondent (Minister) accepts, he has strong familial, personal, school, employment, and social ties to Australia. He is not, however, an Australian citizen. His entitlement to reside in Australia was based on holding a Permanent Resident Return (subclass 155) visa (Visa). On 28 October 2014, the Minister cancelled Mr Buchwald’s Visa.

2    By his application dated 3 December 2014, Mr Buchwald sought an order in the nature of certiorari setting aside the Minister’s decision. The Minister’s decision was made under subsection 501(2) of the Migration Act 1958 (Cth) (Migration Act). That provision permits the cancellation of a visa where the Minister reasonably suspects that the visa-holder does not pass “the character test,” and the visa holder fails to satisfy the Minister that the visa holder passes “the character test”. As a result of Mr Buchwald’s “substantial criminal record,” the Minister was not satisfied that Mr Buchwald passed the character test.

3    By his amended originating application dated 31 July 2015, Mr Buchwald advanced two grounds, which he summarised in written submissions as follows: first, that the Minister erred by ignoring relevant material or making a finding based on no evidence in his assessment of the seriousness of Mr Buchwald’s offending and the risk that Mr Buchwald posed to the Australian community; and, second, that he erred by relying on irrelevant (and ignoring relevant) material and failing to make his decision on the basis of the most-current material available in relation to the applicant’s complete criminal record.

4    For reasons that follow, I am not satisfied that the Minister erred in either of the ways contended for by Mr Buchwald.

Background

Mr Buchwald’s offending

5    In early 2008 Mr Buchwald set in motion a plan the intended consequence of which was that his then girlfriend of two years (whom I shall refer to as Ms W) would marry him. That plan involved kidnapping Ms W but creating the appearance that the kidnapping had been perpetrated by other persons. In February 2008, under the guise of taking Ms W out for a picnic, Mr Buchwald drove with her to his parents’ farm near Boolarra. He stopped the car, ostensibly to investigate some oddity involving a dead deer. When he returned to the car he was disguised and wearing a balaclava. He hogtied and blindfolded Ms W, placed her in the rear of the vehicle, and drove with her (whilst she remained restrained in that manner) for six hours to the Alpine National Park. He did not speak during the journey, so as to ensure that Ms W would not recognise his voice.

6    Having arrived, Mr Buchwald commenced to dig several holes while Ms W remained blindfolded and bound. He cut off all of her clothes with a knife. Ms W believed her kidnapper intended to rape and murder her, and bury her in a hole that he was preparing. He then cut off his own clothing, removed Ms W’s blindfold and untied her, and pretended that he, too, had been kidnapped. Having collected foodstuffs and other items that he had earlier left in the area, they went into the bush. There they remained for a period of days. During that period, Mr Buchwald asked Ms W to marry him and asked her for sex, but she rebuffed him. Ultimately, they were found by a farmer and taken to Buchan. Mr Buchwald told the police that he had been kidnapped. After some investigation, Mr Buchwald was charged with the kidnapping. Consequently he was also charged with having made a false report to police, being the report that he had been kidnapped when, in truth, he had not.

7    On 17 August 2009, Mr Buchwald was convicted of one count of kidnapping and one count of making a false report to police. His bail was extended. While on bail, he absconded. On 18 September 2009 he was sentenced by Judge Smallwood of the County Court of Victoria, in absentia, to 90 months’ imprisonment for the kidnapping and 6 months’ imprisonment for the false report (3 months of which to be served concurrently with the kidnapping sentence). Two days earlier, on 16 September 2009, Mr Buchwald had departed Australia on a false Indian passport, and travelled to India. The falsity of his passport was detected and he was returned to Australia. He was charged with, and pleaded guilty to, a count of failing to answer bail and a count of using a false passport. On 21 October 2009, Judge Smallwood sentenced Mr Buchwald to 6 months’ imprisonment for his failure to answer bail. Some years later, on 21 September 2011, he was sentenced for his use of a false passport.

8    An appeal against conviction and sentence in regard to the kidnapping and false report offences was refused: Buchwald v the Queen [2011] VSCA 445. Special leave to appeal the Court of Appeal’s decision was refused: Buchwald v the Queen [2012] HCASL 181.

The cancellation decision

9    While Mr Buchwald was still incarcerated, by letter dated 30 November 2009 addressed to the Department of Immigration, Mr Buchwald asked that the Department “inform [him] how the Department of Immigration views [his] case, and whether or not [his] visa will be cancelled once [he is] released from custody … .” It appears that the Department replied that it was too early to decide his case. He wrote again, by letter dated 9 January 2012, listing certain items that he asked be taken into consideration. It appears that he was again told that it was still too early to make a decision.

10    By letter dated 2 April 2014, Mr Buchwald once more wrote to the Department providing further information that he considered was relevant to any decision concerning cancellation of his visa. He indicated that he could provide certain documentary evidence, in the event it would be of assistance in determination of his case. A further letter dated 28 May 2014 said that Mr Buchwald had not received a reply to his previous letter. It seems he enclosed that earlier letter as an attachment and re-iterated his offer to provide supporting documentation should that be of assistance.

11    By letter dated 20 June 2014, the Department of Immigration and Border Protection (Department) informed Mr Buchwald that consideration was being given to cancelling his visa under s 501(2) of the Migration Act. Mr Buchwald was invited to comment. There were various enclosures to that letter, including a copy of the sentencing remarks of Judge Smallwood dated 18 September 2009 (September 2009 remarks), and a copy of the sentencing remarks of Judge Smallwood dated 21 September 2011 (September 2011 remarks). Judge Smallwood’s sentencing remarks dated 21 October 2009, in regard to the failure to appear charge (October 2009 remarks), were not enclosed.

12    Mr Buchwald replied by letter dated 2 July 2014. His letter enclosed a “Personal Details Form,” letters from his mother and stepfather describing what would be the impact upon them of his deportation, letters of offer of employment, various references he evidently procured subsequent to his arrest for the kidnapping charge, certificates and other documentation evidencing the training and educational courses he had completed during his incarceration, and documents showing his involvement in other constructive activities.

13    The Department came into possession of a Prisoner Report of Corrections Victoria dated 11 July 2014, and of an Australian National Police certificate dated 8 July 2014, both in relation to Mr Buchwald. The Department provided each to Mr Buchwald, under cover of letters dated 11 July 2014 and 14 July 2014 respectively, inviting comment. Mr Buchwald replied by letter dated 22 July 2014. Further correspondence then passed between the Department, Mr Buchwald, and his mother, by letter and email. None of that last-mentioned correspondence is relevant to the disposition of this matter.

14    A submission dated 3 September 2014 was prepared and put before the Minister. Attachment A to the submission was an issues paper (Issues Paper). Attachment B was a draft statement of reasons for the event that the Minister decided to cancel Mr Buchwald’s visa (Statement of Reasons). The Issues Paper included Attachments A–U. Relevantly, Attachment C was a copy of the September 2009 remarks, Attachment D was a copy of the September 2011 remarks, and the October 2009 remarks were not attached.

15    On 28 October 2014 the Minister decided to cancel the visa. While nothing turns on this, it appears that the Minister executed the draft Statement of Reasons without any changes. On 3 December 2014, Mr Buchwald lodged his application in this Court.

Legislation

16    Subsections 501(2), (6), and (7) of the Migration Act are relevant:

501    Refusal or cancellation of visa on character grounds

…

(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.

…

(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)); or

(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; or

17    There was no issue that Mr Buchwald had been sentenced to a term of imprisonment of 12 months or more. It was equally uncontroversial that he therefore had a “substantial criminal record” for the purpose of s 501(6), and thus that he did not pass the character test. That enlivened the Minister’s discretion to cancel Mr Buchwald’s visa. The Minister’s Statement of Reasons deals substantially with the exercise of that discretion, and it is in relation to that exercise of discretion that both grounds arise.

Ground 1: ignoring relevant material / no evidence

18    Ground 1, in full, is this:

1.    The Minister erred in law by:

a.    failing to address the merits of the applicant’s case; or

b.    failing to give proper and genuine consideration to the risk of harm to the Australian community; or

c.    making a legally unreasonable or irrational decision;

by ignoring relevant material, or making a finding based on no evidence, in his assessment of the seriousness of the applicant’s offending and the risk the applicant posed to the Australian community.

Particulars

i.    The Issues Paper provided to the Minister indicated at paragraph [33] that the victim’s injuries included ‘permanent injury to the nerves on her neck and back’, and the Minister found at paragraph [18] of his reasons that the victim suffered ‘permanent injury to the nerves on her neck and back’.

ii.    There was no evidence to support the finding of [sic] that a ‘permanent injury to the nerves’ was sustained by the victim.

iii.    The Minister ignored material that characterised the victim’s physical injuries as temporary, in particular Judge Smallwood’s 18 September 2009 sentencing remarks, which noted at [33] that ‘her greatest injury, in her mind, was to her back and neck, that nerves were damaged in her neck where she struggled with good circulation for nearly a year afterwards’.

19    As is apparent, this ground focuses on the Minister’s findings as to the nature of Ms W’s injuries. This ground was advanced on three basis, reflecting what Wigney J said in Te Puke v Minister for Immigration and Border Protection (2015) 230 FCR 499 at [60]–[61] and [73]. As they will be referred to for various propositions in what follows, those paragraphs will be set out in full:

[60]    Difficult questions may arise concerning how far it is possible to take the broad statement by the majority in Huynh that the Minister is not bound to consider “specific factors, personal to the visa holder”. There is no doubt, for example, that the Minister is not free to entirely disregard the particular circumstances of the visa-holder. As pointed out in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [26] (Allsop CJ and Katzmann J) and [153] (Buchanan J) and NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 at [123] (Buchanan J; Allsop CJ and Katzmann J agreeing at [7]), it is not permissible to put to one side, or fail to address, the merits of a particular visa-holder’s case; see also Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [26].

[61]    It does not follow, however, that the Minister is bound, in the Peko-Wallsend administrative law sense, to take into account every or any particular facts or factors personal to the visa-holder that might be relevant to the exercise of the s 501(2) discretion in the particular circumstances of the case. It is ultimately up to the Minister to decide, in the light of the matters put before him (or her), what facts are relevant and what weight should be given to them. In some cases, a failure by the Minister to take into account certain facts concerning the offence or offences committed by the visa-holder may indicate error on the Minister’s part. It may, for example, indicate that the Minister failed to address at all the merits of the visa-holder’s case, or failed to give proper and genuine consideration to the risk of harm in the particular circumstances, or even made a legally unreasonable or irrational decision. That will depend on the particular facts and circumstances of the case and the particular fact or facts that it is alleged the Minister ignored. The point is, however, that the error in such a case is best addressed in these terms, rather than as a failure to take into account a mandatory consideration.

…

[73]    There may equally also be cases where the failure by the Minister to consider the risk of the person re-offending might indicate error. The preferable approach in such cases, however, would not be to ask whether the failure to consider that matter amounted to a failure to have regard to a mandatory relevant consideration. Rather, the question in such a case would be whether, in the particular circumstances and context of the case, the failure to consider the likelihood of the visa-holder re-offending reveals that the Minister failed to consider or decide the visa-holder’s case on its individual merits, or failed to give proper or genuine consideration to the risk of harm posed by the visa-holder’s continuing presence in Australia, or misunderstood the correct approach to the assessment of the risk of harm, or otherwise made a legally unreasonable decision.

(emphasis added)

20    Each of Mr Buchwald’s two grounds was put in the three ways identified by Wigney J: first, that the Minister had failed to consider the case on its individual merits; second, that the Minister had failed to give proper or genuine consideration to the risk of harm in the particular circumstances; and, third, that the Minister had made a legally unreasonable or irrational decision. In my view, the Minister did not err in any of those ways. Specifically, Mr Buchwald alleged that “[b]y making an erroneous finding, the Minister effectively failed to consider the merits of the applicant’s case and, or in the alternative, failed to give proper or genuine consideration to the evidence.” Neither of the two conclusions contended for follow from the making of an erroneous finding, even if that is what occurred.

21    In effect, Mr Buchwald constructed his case thus: first, the Minister was required to consider the risk of harm posed to the Australian community; second, in the instant case the Minister took into account two elements in that assessment, being the seriousness of potential future harm, and the likelihood of that harm occurring; third, the Minister found that in cases where the harm that may be occasioned in the event of re-offending was very serious, any risk of re-offending posed too great a risk to the Australian community, and that Mr Buchwald’s case was such a case; fourth, the Minister’s assessment of the seriousness of potential future harm in the event of re-offending was predicated upon a finding that Ms W had suffered permanent injuries; fifth, in fact, Ms W’s injuries were only temporary, there was evidence to support that finding, and there was no evidence to support the converse finding that the injuries were permanent; sixth, and finally, if the Minister had correctly apprehended the facts, that may have affected the Minister’s view as to the seriousness of the potential harm, such that the modified seriousness may no longer have been sufficiently high that any risk of re-offending would pose too great a risk. Thus:

… it is doubtful whether, had the Minister properly or genuinely considered the sentencing remarks before him, that he would state that the ‘harm that would be caused if [the offending] were to be repeated [would be] so serious that any risk of similar conduct in the future is unacceptable.

In my view, the fourth and fifth steps, and consequentially also the sixth and the conclusion, are incorrect. I will explain why.

22    Paragraph 18 of the Minister’s Statement of Reasons contains the factual finding about which Mr Buchwald complains:

The victim also suffered permanent injury to the nerves on her neck and back as a result of being hog-tied for a lengthy period. Her feet have also been damaged and she has trouble differentiating between different temperatures. She stated in her victim impact statement that the emotional trauma is what she has suffered from the most, and I accepted that to be true. Judge Smallwood aptly described the breach of trust as being 'massive' and the terror, physical injury and psychological damage as being ‘just too much’. I concurred that the victim, [Ms W], suffered terribly in this particular case.

(emphasis added)

23    The dispositive paragraph of the Minister’s Statement of Reasons is [48]:

In reaching my decision I found that Mr BUCHWALD poses a risk of reoffending, albeit a low one, but if that risk were to eventuate great harm could flow to a member of the Australian community. Thus if Mr BUCHWALD did re-offend in a similar manner it could result in psychological, mental and/or physical harm to a member of the Australian community. I could not rule out the possibility of further offending by Mr BUCHWALD.

24    Mr Buchwald’s first ground fails for these reasons, which will be discussed in turn: first, the Minister’s reasoning concerning the harm that might flow to the Australian community in the event of re-offending was not limited by the harm that did in fact flow to Ms W from Mr Buchwald’s offending; second, even if “permanent” is read to mean, “lasting for the balance of Ms W’s life,” there was evidence to support that finding (whether or not it was the best available finding); third, “permanent” need not be read in that way and is more naturally read as meaning “enduring,” in which case Mr Buchwald’s complaint must fall away. There is arguably another answer to Mr Buchwald’s first ground, namely, that the permanence or otherwise of Ms W’s injuries was not a jurisdictional fact, and that, for a “no evidence” ground to be established, the fact of which there is no evidence must be a jurisdictional fact. That is discussed hereunder, but is unnecessary to resolve.

25    As to the first point, the injuries sustained by Ms W were relevant to the harm that might flow from any future re-offending of a similar kind, but they were not determinative or delimitating of that issue. The Minister did not say that it was only the same kind and quantum of harm as was suffered by Ms W that was of sufficient seriousness that any risk of re-offending was unacceptable. Rather, the Minister’s consideration turned upon the possible consequences of “re-offend[ing] in a similar manner,” rather than the actual consequences of the subject offending. If the Minister had said, for example, that the harm in fact suffered by Ms W was the greatest possible harm that could possibly be occasioned by similar re-offending, or even the nature of harm most likely to follow from similar re-offending, the argument might have been open to Mr Buchwald that an error in assessing that harm vitiated the ultimate assessment of the acceptability of the level of risk. But the Minister made no such statement. Further, the Minister made no statement to the effect that only permanent damage of the kind suffered by Ms W was sufficient for him to form the view that the risk of harm was unacceptably high.

26    Supposing, for example, that Ms W had fortuitously suffered only very minor and transitory injuries and had completely recovered within a few days, it would nevertheless have been open to the Minister to form the view that the risk of harm attendant on the circumstances of re-offending of a similar kind—i.e., kidnapping involving hog-tying in which the victim was put in fear of being raped and murdered—was very serious and involved an unacceptable level of risk. In other words, if (as in this hypothetical, but not in reality) Ms W had luckily escaped with no serious injuries, that would not entail that any future victim, in the event of re-offending, would necessarily also be so lucky. Even if it is correct that Ms W was not permanently injured, that would not prevent the Minister from finding that permanent injury, or an unacceptably-serious level of injury, was a risk attendant upon re-offending “in a similar manner.”

27    In my opinion, that was the nature of the Minister’s reasoning. At [48] of his Statement of Reasons, his attention was upon the harm that “could” flow from “re-offend[ing] in a similar manner.” That does not entail, necessarily, that the harm that the Minister had in mind was precisely the same as, or at least no more serious than, that suffered by Ms W. The Minister did not expressly say that he was limiting his analysis to re-offending that resulted in identical or similar harm to that suffered by Ms W. One can easily imagine that similar re-offending could result in more serious harm than that in fact suffered by Ms W. Assuming, for the sake of Mr Buchwald’s argument, that the Minister was incorrect in describing Ms W’s injuries as “permanent,” I do not accept that a correct assessment would have resulted in any change to the Minister’s reasoning at paragraph [48]. Accordingly, Mr Buchwald’s fourth step fails.

28    As to the second point, there is, in fact, evidence supporting a finding that Ms W’s injuries were permanent. Mr Buchwald relies on this passage from the September 2009 sentencing remarks:

I have read from her victim impact statement as to that one aspect but it should also be pointed out that she refers to the physical injuries that she suffered. That her feet eventually healed but she still has trouble differentiating between different temperatures. That her greatest injury, in her mind, was to her back and neck, that nerves were damaged in her neck where she struggled with good circulation for nearly a year afterwards.

(emphasis added)

29    Mr Buchwald’s submission assumes that the resolution of the circulation symptom, referenced in the second half of the final sentence, constitutes resolution of the entirety of the nerve damage issue, referenced in the first half of the final sentence. There is no basis for that assumption. It may be that poor circulation was only one symptom of the nerve damage and that other symptoms (e.g., pain) remained. Indeed, the second part of the final sentence makes no reference at all to resolution of Ms W’s back injury. And when the matter was before the Victorian Court of Appeal, Hansen JA said (at [195]), “…she suffered severe sunburn, nerve damage to her neck because of the applicant’s rough handling which prevented her from playing the piano for a year, and ongoing pain in her lower back. She has required ongoing physiotherapy and counselling.” It is relevant that neck and back injuries were mentioned separately by Hansen JA. It is also relevant that that hearing was in August 2011, being two and a half years after the kidnapping occurred. Evidence that, two and a half years after a kidnapping, Ms W was still in physiotherapy and had ongoing pain in her back was probative evidence that Ms W suffered a permanent injury to (at least) her back. Hansen JA did not refer to the nerve damage as being ongoing, but nor did his Honour say it was resolved: his Honour stated only that a symptom of that nerve damage (inability to play the piano) had ceased to exist. That does not deny the existence of other symptoms.

30    If by “permanent” the Minister meant that Ms W’s injuries would remain with her for the balance of her life, then it is at least arguable that it might have been better for the Minister to have made a more conservative finding—for example, that Ms W’s injuries were longstanding, lasting, or non-transitory. But a criticism to the effect that another available finding was a better one does not establish jurisdictional error. There was evidence that probatively tended to support the Minister’s finding of permanence. Therefore particular (ii) of ground 1 is not established. Further, I do not accept that the Minister ignored [33] of the September 2009 remarks. To the contrary, much of what the Minister says in paragraph [18] appears to be taken directly from paragraph [33] of the September 2009 remarks, including (for instance) that Ms W’s feet were injured and that she had difficulty differentiating as between temperatures. Really, Mr Buchwald’s complaint must be not that the Minister “ignored” the September 2009 remarks or the material therein—to my mind it is clear that he did not so ignore—bur rather that he took some licence in characterising certain of Ms W’s injuries as “permanent” when Judge Smallwood had not done so. I do not accept that the Minister “ignored” paragraph [33] of the September 2009 remarks: that is fatal to particular (iii) of ground 1.

31    Next, Mr Buchwald’s submissions were predicated upon the word “permanent” meaning “continuing indefinitely.” That is one available definition, but another (in definition 1(a) of the word in the Oxford English Dictionary) is, “abiding, enduring, lasting.” The Minister submitted that “permanent” should be read as meaning “enduring.” It was not suggested that, if that was the Minister’s finding, it was an unavailable or wrong one and it seems to me that it would plainly be open on the evidence. It is not necessary for me to determine this issue, in light of what I have said in relation to the two previous points. If it had been necessary, I would have accepted the Minister’s submissions. Ms W was a young adult at the time that the Minister made his decision. It seems to me more likely that, in that circumstance, the Minister would confine himself to saying that the injuries were “enduring,” instead of saying that they would last the rest of Ms W’s life. Then, as I have said, there was clearly evidence in support of such a finding and Mr Buchwald’s ground 1 would fail.

32    Finally, Mr Buchwald’s ground 1 goes to whether there was evidence for a finding that Ms W’s injuries were “permanent.” The “no-evidence” ground of review does not apply to every finding of fact. For reasons that follow, irrespective of whether “permanent” means “enduring” or “indeterminate,” an error in so finding would not constitute jurisdictional error.

33    The reasons for decision of Kenny J in SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232 at [38] disclose what appear to be two approaches in the authorities to the “no evidence” ground. A number (there cited) suggest that jurisdictional error lies where the decision-maker “makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding.” One of the cases her Honour cited, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19], has been many times relied upon for that proposition. On the other hand, a number of authorities (again, set out in SZNKV at [38]) stand broadly for the proposition that, for jurisdictional error to lie, the fact in support of which there is no evidence must be a jurisdictional fact. However, Kenny J expressly did not determine “whether these two approaches co-exist” nor, if a choice had to be made between then, which was the preferred approach.

34    A number of High Court authorities seem to me to support the jurisdictional fact approach. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said this, at [39]:

To return to the first ground identified in the Federal Court, the "no evidence" ground, nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction. No question of a “no evidence” ground of jurisdictional error arises.

35    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Gummow A-CJ and Kiefel J said the following, at [31]:

In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 514, 519–520, Wilcox J carefully, and with respect correctly, distinguished a "no evidence" ground respecting the existence of a jurisdictional fact, from the more debatable question (which does not arise in this appeal, as counsel for the first respondent stressed) of defective fact finding as an independent ground of judicial review, or as indicative of an "error of law" within the meaning of the AD(JR) Act.

36    One of Wilcox J’s observations in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511, which Gummow A-CJ and Kiefel J approved in the above extract, was this (at 514):

All of the cases, of which I am aware, in which "no evidence" has been treated as a separate ground were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact … .

37    In Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at [108], I expressed reservations as to the correctness of SFGB and the line of authority following it. That reservation was also expressed by Jessup J at [50].

38    Finally, in Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said this, at [46]:

The plaintiff also argues that there was no evidence that PNG would fulfil its assurances and would promote the maintenance of a programme which was fair to UMAs. However, there was no statutory requirement that the Minister be satisfied of these matters in order to exercise the relevant power. They do not qualify as jurisdictional facts ([SGLB] (2004) 78 ALJR 992 at 998-999 [39]; 207 ALR 12 at 21; [SZMDS] (2010) 240 CLR 611 at 622 [31]).

39    Especially in the light of what was said in the last-mentioned case by a unanimous High Court, it seems that the jurisdictional fact approach is the preferred approach to the “no evidence” ground as a stand-alone ground of judicial review. And, Mr Buchwald accepted in the course of oral submissions that in order to establish a “no evidence” ground it was necessary that the fact of which there is no evidence be a jurisdictional fact. Mr Buchwald submitted, having accepted that proposition, as follows:

MR GOODWIN:    … it goes to the mandatory consideration of the risk of harm associated with re-offending, and [the] comment made that there was permanent injury … goes to the Minister’s ultimate finding that the risk – that there was a risk of great harm that could flow associated with physical harm to a person in the Australian community.

HIS HONOUR:    But a mandatory consideration is not a jurisdictional fact necessarily, is it?

MR GOODWIN:    No, but in this circumstance the permanence of the injury did go to a jurisdictional fact associated with the Minister’s consideration of the mandatory consideration. So, essentially, the mischaracterisation of the consequences of the crime would go to the level of harm caused as indicative of the potential risk of harm to the Australian community.

40    While it is clear on the authorities, and it was not contested, that the risk of harm to the Australian community was a mandatory consideration, I cannot say that I am persuaded that that consideration constitutes a “jurisdictional fact.” I assume that Mr Buchwald’s submission was that the existence of some level of risk—perhaps an “unacceptable level” or some other formulation—was a necessary precondition to the exercise of the Minister’s discretion to cancel Mr Buchwald’s visa, and that that fact was a “jurisdictional fact.” That would be difficult to establish. French CJ set out the relevant principles in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57]:

The term “jurisdictional fact” applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements”. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.

(citations omitted)

41    In light of the terms of s 501(2)(a) and (b), which do not contain any reference to risk to the community, and which are conditioned upon the Minister’s reasonable suspicion and his satisfaction respectively, it is difficult to accept that a particular level of risk to the community, relevant consideration though it be, is a “jurisdictional fact.” Further assuming for the sake of Mr Buchwald’s argument that risk to the community is in some way a jurisdictional fact, for Mr Buchwald to succeed, there would need to have been no evidence of that fact. Counsel for Mr Buchwald did not submit that that was the case. The highest it could fairly be put, and as counsel for Mr Buchwald indeed put it, was that the relevant fact—the permanence of Ms W’s injuries—“would go to the level of harm caused as indicative of the potential risk of harm … ” (emphasis added). Establishing that there was no evidence in support of a fact that goes to a jurisdictional fact does not necessarily establish that there was no evidence in support of the jurisdictional fact itself, and only the latter is sufficient to establish the “no evidence” ground of review.

42    Assuming, alternatively, that the “critical step” approach is to be applied and that it differs from the “jurisdictional fact” approach, ground 1 nevertheless fails. The impugned finding of fact was not a “critical step” in the Minister’s reasoning. Ms W’s neck injury was one of a number of physical injuries. She also had psychological injuries. The Minister’s assessment of harm included that “if Mr BUCHWALD did re-offend in a similar manner it could result in psychological, mental and/or physical harm” (emphasis added). To the Minister’s mind, as disclosed in his reasons, the potential for the occurrence of one only of the three listed kinds of harm arising out of similar conduct was sufficient to establish unacceptable risk to the Australian community. Accordingly, even if a part of the Minister’s findings as to one of those kinds of harm was erroneous, a different and correct conclusion would not have altered the Minister’s decision. Further, the unaffected findings were sufficient, on the Minster’s reasoning, to ground his conclusion. That being so, the impugned finding cannot be said to have been “critical” in any meaningful sense. Mr Buchwald’s fifth step fails.

43    It necessary follows from what I have said in relation to the fourth and fifth steps that the sixth step fails. That is, if the assessment of risk was not dependent upon the finding as to the permanence of Ms W’s neck injury, or if there was an evidential basis for the finding that the neck injury was permanent, or if in any event error was not jurisdictional, then of necessity the sixth step either has no error to seize upon or seizes upon an error within jurisdiction. The conclusion for which Mr Buchwald militated is not available. Ground 1 fails.

Ground 2: Relying on irrelevant and ignoring relevant material

44    Ground 2 was as follows:

2.    The Minister erred in law by

a.    failing to address the merits of the applicant's case; or

b.    failing to give proper and genuine consideration to the risk of harm to the Australian community; or

c.    making a legally unreasonable or irrational decision;

by relying on irrelevant material and ignoring relevant material or failing to make his decision on the basis of the most current material available in respect of the applicant's criminal record.

Particulars

i.    The Minister's reasons for cancelling the applicant's visa included findings that the applicant, in failing to answer bail, had ‘displayed a lack of respect for the laws that govern Australia’ (paragraph [32]), and further, that he had ‘displayed a lack of respect for authority in the past’ (paragraph [34]).

ii.    In his 21 October 2009 sentencing remarks in respect of the applicant's failure to answer bail, Judge Smallwood relevantly found that:

1.    the applicant had been previously assaulted in gaol, noting at [14] that 'I am prepared to accept that it may have been part of the reasoning that you were afraid of physical assault in a prison environment'; and

2.    the applicant had been diagnosed with a condition referred to at [11] as a ‘pervasive developmental disorder’, noting at [13] that ‘I do accept for these purposes, the developmental condition described by the psychologist’.

iii.    The Issues Paper did not attach, and the Minister did not consider, Judge Smallwood's 21 October 2009 sentencing remarks.

iv.    The Minister was constructively aware of the ‘missing’ sentencing remarks of 21 October 2009 and ignored them and further or in the alternative was required to obtain and consider the most current information on a matter he had decided to treat as a relevant consideration, but failed to do so.

45    The ground was more concisely put in Mr Buchwald’s written submissions: “… the applicant argues that the Minister erred at law by failing to consider the merits of the applicant’s case, or failing to give proper and genuine consideration to the risk of harm to the Australian community, or making a legally unreasonable or illogical decision, by … relying on irrelevant material and ignoring relevant material and failing to make his decision on the basis of the most current material available, in respect of the applicant’s complete criminal record.” The reference to the “complete criminal record” is to the Minister not having been provided the October 2009 remarks as an annexure to the Issues Paper.

46    The way in which Mr Buchwald has formulated this ground throws up a large number of alleged jurisdictional errors. They will be discussed below. Ultimately, however, it is not necessary for me to decide whether any jurisdictional error has been established. That is because, even if a jurisdictional error was made, I do not accept that any such error had the outcome that Mr Buchwald “has been deprived of the possibility of a successful outcome” (Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at [29] (Black CJ), [64] (Sackville J), [104] (Sundberg J)). Therefore, I would refuse relief even if jurisdictional error were established. I will first give my reasons for that conclusion before turning to whether jurisdictional error was established.

Mr Buchwald was not denied the possibility of a successful outcome

47    As is apparent from ground 2 and its particulars, the subject matter of Mr Buchwald’s complaint was that the October 2009 remarks, which he said were most favourable to him in terms of the assessment of risk of harm to the Australian community, were not taken into account by the Minister. They were favourable, he said, because they modified or explained what Judge Smallwood had earlier said in his September 2009 remarks. In the September 2009 remarks, Judge Smallwood said that Mr Buchwald had displayed a lack of respect for the laws that govern Australia, that he had displayed a lack of respect for authority in the past, and that his conduct showed a person with virtually no empathy (September 2009 findings). In the October 2009 remarks, Judge Smallwood said as follows, at [11] and [14]:

Also tendered on your behalf was a psychologist's report from a Dr Cunningham. Dr Cunningham has apparently spoken to you in custody in late September. He in that report describes that you had a presentation consistent with a diagnosis of pervasive developmental disorder, not otherwise specified. He goes on to describe that people with that condition have difficulty relating to other people; often lack empathy and may be highly impressionable to negative influence. It was clear as I said in my earlier sentencing remarks, that a lack of empathy played a significant part in that offending.

…

It was put to me that you had previously been assaulted in gaol and that is why you fled. I accept that you have been previously assaulted in gaol, bearing in mind what you told apparently the psychologist. I am prepared to accept that it may have been part of the reasoning that you were afraid of physical assault in a prison environment. Unfortunately, that is one of the consequences of being placed in a custodial environment and applies to many, many prisoners. I accept that since verdict you have been depressed and that is highly understandable and again, common.

48    Mr Buchwald relied in particular upon Judge Smallwood’s acceptance that fear of physical assault constituted part of Mr Buchwald’s reason for absconding, and upon Judge Smallwood’s acceptance that Mr Buchwald had been diagnosed with a pervasive developmental disorder, and that “people with that condition have difficulty relating to other people, often lack empathy, and may be highly impressionable to negative influence” (October 2009 findings).

49    Mr Buchwald submitted that “a selective presentation of the evidence led to a conclusion that was contradicted or at least significantly modified by the most relevant sentencing remarks.” He also submitted that the September 2009 findings “appear to have played a role in tipping the scales in favour of cancellation of the appellant’s visa.” Because I do not accept either proposition, I do not accept that any jurisdictional error constituted by a failure to take the remarks into account deprived Mr Buchwald of the possibility of a successful outcome.

50    I will deal with the second point first. While there was some reason for thinking that the Minister’s assessment of risk to the community was conducted by reference to the kidnapping offence only, ultimately I accept Mr Buchwald’s submission that the better view is that, in reaching his conclusions as to the risk of harm to the Australian community, the Minister relied upon all of the offences (see, e.g., paras [25], [32], [47]). However, counsel for Mr Buchwald accepted (rightly, in my view) that the matters that the Minister allegedly did not take into account generally went to the risk of re-offending, rather than the harm that would be occasioned should that risk materialise.

51    Mr Buchwald submitted that the October 2009 findings were “mitigating factors,” and he submitted that the Minister did not, or did not adequately, take them into account. I will assume, for the sake of Mr Buchwald’s argument, that both propositions are correct. Mr Buchwald submitted that, had those “mitigating factors” been taken into account, the Minister might have held that there was less risk than the extent of the risk which the Minister in fact found to exist. Mr Buchwald submitted that, in that event, there was a possibility that the Minister might then have made a decision other than his decision to cancel Mr Buchwald’s visa.

52    The difficulty for Mr Buchwald is that the Minister’s actual finding was that the risk of Mr Buchwald re-offending was “low” (see [31], [34], and [48]). In response to my suggestion to Mr Buchwald’s counsel that it was difficult to see how a more favourable outcome could have been reached on that question, Mr Buchwald submitted that the risk might have been assessed as “even lower,” or “de minimis”. Necessarily, that submission carries with it that if risk had been assessed as lower in that way, there was a possibility of a successful outcome for Mr Buchwald. With respect, I do not accept those submissions. The Minister said at [48] of his reasons that he “could not rule out the possibility of further offending by Mr BUCHWALD.” He continued at [50], “some conduct, and the harm that would be caused if it was to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable.” The Minister’s reasons in whole, and especially in the passages just quoted, disclose that his decision was made on the basis that—given the nature of harm that could flow from re-offending—any risk of re-offending was unacceptable. Mr Buchwald did not submit that consideration of the October 2009 remarks might have led to a finding of no risk, and it is only that finding that, by reference to the balance of the Minister’s reasons, might have altered the Minister’s decision.

53    Further, there is nothing in the Minister’s reasons that suggests to me that there was a lower categorisation of risk than “low.” On the contrary, the Minister treated “low” risk as a matter that counted in Mr Buchwald’s favour and did not give the impression that it was, as it were, the second-best available finding. Indeed, the Minister characterised Judge Smallwood’s remarks on the question of prospects of rehabilitation and risk of re-offending as “positive comment” (at [34]). Accordingly, even had the Minister taken the October 2009 remarks into account, there is no possibility that his finding as to risk of re-offending would have been different in such a way that there was a possibility that the outcome overall would have been different.

54    Next, I do not, in fact, accept the first of the two assumptions that I set out at [51] above: that the October 2009 findings were “mitigating factors”. Mr Buchwald submitted that the findings of lack of empathy and lack of respect for authority went to the risk of re-offending. So, if they are to mitigate relevantly, they must mitigate in relation to that question of risk of re-offending. But, Judge Smallwood’s October 2009 remarks do not say anything that suggest that the matters to which his Honour there refers diminish the risk of re-offending. His Honour’s remarks might go to explaining why there is a lack of empathy, or why a lack of respect for authority was manifested, but they go no further. The Minister’s assessment of risk was concerned with the fact of a lack of empathy, not with any of the reasons therefor. And in any event, Judge Smallwood continued, at [15], to say that “the risk of [Mr Buchwald] re-offending remain[s] as I outlined in my earlier remarks … .”

55    Mr Buchwald submits that the cause for any lack of empathy was significant. That is because, he submitted, there is a difference between:

… a lack of empathy that is displayed as a result of a medical illness, which might be treatable or treated, as [compared] with a lack of empathy that was simply a part of the applicant’s characteristics as a person.

56    Apart from the fact, already mentioned, that the Minister did not seem to me to be concerned with cause, Mr Buchwald’s further submission relies on two assumptions, neither of which has an evidential basis: first, that pervasive development disorder is distinguishable from “the applicant’s characteristics as a person”; and, second, that lack of empathy arising out of pervasive developmental disorder was treatable, or more treatable than “the applicant’s characteristics as a person.” Absent something more than surmising and hypothesis, I would not be prepared to find that the Minister had formed a misconceived impression of the risk of Mr Buchwald re-offending because he was only aware of the applicant’s lack of empathy, and not its cause.

57    For the reasons given in preceding paragraphs, I am of the view that even if Mr Buchwald established that the Minister either had the remarks before him (including constructively) or was required to make inquiries to procure them, and that either his failure to consider them or consider them properly, or his failure to inquire after them, was a jurisdictional error, he has not established that any such failure or failures deprived him of the possibility of a successful outcome. I think that there is no possibility that the outcome would have been different if the October 2009 remarks had been taken into account.

Was there a jurisdictional error?

58    Because of my conclusions under the previous sub-heading, it is not necessary that I reach concluded views about whether any of the jurisdictional errors for which Mr Buchwald contends have been committed. Nevertheless, in the event that I am wrong about the possible effect of the October 2009 remarks, I will consider whether jurisdictional error was established. Counsel for Mr Buchwald put his case as turning on the resolution of three issues, as follows:

Those three issues are, first, essentially, a threshold issue that the relevant sentencing remarks were constructively before the Minister, or if not, should have been provided or inquired after … and then … there was a failure to have a regard to those sentencing remarks that constituted jurisdictional error, and then third, that that failure materially affected the decision of the Minister.

59    I have addressed the third issue above. As to the first two, I think that what Mr Buchwald contemplated collectively as his first step—that the remarks were either before the Minister or ought to have been inquired after—is better considered separately. That is because a failure to inquire after the remarks if the Minister was obliged to, in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, would itself be a jurisdictional error so that the second step concerning whether failure to have regard to the remarks in a particular way constituted jurisdictional error could be bypassed. I think that Mr Buchwald’s case is best determined by the resolution of the following questions.

(1)    Were the October 2009 remarks before, including constructively before, the Minister?

(2)    If the October 2009 remarks were before the Minister, did his failure to consider the remarks constitute jurisdictional error?

(3)    If the October 2009 remarks were not before the Minister, was he obliged to inquire after them?

60    If both of questions (1) and (2) are answered, “yes,” or if question (3) is answered, “yes,” jurisdictional error would be established. My answers to those questions are as follows:

(1)    No. The remarks were neither before nor constructively before the Minister.

(2)    Not necessary to answer. Alternatively, there was no jurisdictional error in the Minister’s consideration of the risk of harm to the Australian community.

(3)    No.

61    I turn now to explain those answers.

Were the remarks before or constructively before the Minister?

62    It was not suggested that the Minister actually had before him the October 2009 remarks. Mr Buchwald’s case relied upon establishing that those remarks were “constructively” before the Minister. To make good that proposition, Mr Buchwald relied upon Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178–9 (Toohey J), as follows:

… it may be that the material placed before the Minister or his delegate contains some obvious omission or obscurity that needs to be resolved before a decision is made. This is more likely to be the case where the person concerned has not had the benefit of any advice. If an officer of the Department withholds information from the Minister or his delegate, it is no answer to a complaint that the decision-maker failed to take into account a relevant consideration to say that the matter was not before him. That information was constructively before him. And, in my view, if an officer of the Department, albeit innocently, dissuades or discourages a person from giving information that is relevant to the decision to be made, it is no answer to a complaint in terms of s 5(2)(e) to say that the decision-maker did not have the matter before him. It was nevertheless a relevant consideration. Clearly much will depend upon the circumstances of each particular case.

(emphasis added)

63    Mr Buchwald submitted that because the failure to answer bail charge was relied upon by the Minister, and because the September 2011 remarks refer to the October 2009 remarks, the Minister was “constructively aware of” the October 2009 remarks, and that because he had “constructive knowledge” of the remarks, those remarks were “constructively before” the Minister.

64    I do not accept that submission. I read the holding of “constructive knowledge” in Videto as being confined to the circumstance where the relevant material is in fact on the Departmental file and is, for whatever reason, not put before the decision-maker. That is consistent with Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 31, where Gibbs CJ said this (citation omitted):

The material in the possession of the Department must clearly be treated as being in the possession of the Minister: see Daganayasi v. Minister of Immigration [1980] 2 NZLR 130, at p. 148.

65    It seems to me also to be consistent with other cases that have considered Videto, Peko-Wallsend, or both, including VKAC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 974 at [60] (Nicholson J), and Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [80] (Kiefel and Bennett JJ).

66    Accordingly, the remarks were neither before nor constructively before the Minister.

Did the Minister’s failure to consider the remarks constitute jurisdictional error?

67    On the assumption that the October 2009 remarks were constructively before the Minister, nevertheless, for the following reasons, it is my opinion that Mr Buchwald has not demonstrated jurisdictional error.

68    This ground was advanced in quite a few different ways. It was summarised as being “that the Minister ignored relevant material and/or failed to make a decision on the basis of the most current material” (P-3.8–10). That failure was said to constitute the three errors identified by Wigney J in Te Puke at [61], namely that there was a failure to consider the merits of Mr Buchwald’s claim, that there was a failure to give proper and genuine consideration to the of harm posed by Mr Buchwald to the Australian community, and that the decision was legally unreasonable or irrational.

69    Mr Buchwald also advanced the claim through the framework of Lu and Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417. In Gbojueh at 428–9, I considered Lu and Huynh, being two judgments of Full Courts of this Court that were in some tension with one another. At [58], I said this:

In my view, where the Minister exercises his discretion under s 501A(2), he is bound to consider the potential for harm to the Australian community should the visa-holder be permitted to remain without ignoring material before him which gives an accurate account of the seriousness of the visa-holder’s prior criminal conduct. Such an obligation will extend to a consideration of the circumstances in which the offending occurred, where those circumstances are relevant to the assessment of risk. My view seems at odds with that expressed by the majority in Huynh, but consistent with the reasoning of the majority in Lu.

70    Since then, what are “relevant considerations” in the Peko-Wallsend sense has been considered in a number of judgments of Full Courts of this Court, including Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132, Gbojueh v Minister for Immigration and Border Protection [2015] FCAFC 43, and Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367. Mr Buchwald acknowledged that I am bound by Moana, and the parties were effectively agreed that the position was this:

(1)    risk to the Australian community posed by the continued presence of the visa holder in Australia is a consideration that the Minister is bound to take into account, though in general terms only (Moana at [48], [66], and [71] per Rangiah J, with whom North J agreed); and

(2)    the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct that may cause harm (Moana at [73], [74]).

(3)    notwithstanding (2), an evaluation of likelihood may be centrally relevant in many cases and the exercise of discretion to cancel a visa without consideration of the likelihood of engaging in future conduct that may cause harm may be unreasonable in the sense of lacking an evident and intelligible justification (Moana at [74]).

71    The relevant consideration is risk to the Australian community. The Minister clearly took that matter into account and discussed it at great length. Failure to take into account some evidence that may bear upon a mandatory consideration is not the same thing as a failure to consider the mandatory consideration.

72    Nor does the failure to consider or take into account some evidence necessarily lead to a conclusion that a decision-maker has failed to consider the merits of a claim, or that there has been a failure by the decision-maker to give proper and genuine consideration to a relevant matter. As Robertson J said at [97] of Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 by reference to the judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, "merely to ignore 'relevant material' does not establish jurisdictional error". That is so because jurisdictional error is only established if ignoring relevant material affects the tribunal's exercise or purported exercise of power (Yusuf at [82]). Where relevant evidence is ignored, it is crucial to the assessment of whether jurisdictional error is established that consideration be given to the consequence of that omission. As Robertson J said in SZRKT at [111]:

The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.

See further VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] (Hill, Sundberg and Stone JJ) and SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 at [81(b)] and [81(f)] (Griffiths J).

73    As in this case, the failure of the Minister to take into account sentencing remarks in the exercise of the Minister's discretion under s 501 was an issue in Huynh. In declining to find jurisdictional error by reference to that omission, Kiefel and Bennett JJ at [81] said this:

The remarks of the Court of Criminal Appeal were in no way critical to the Minister's decision and they did not stand as some important omission.

74    In finding that Mr Buchwald was not denied the possibility of a successful outcome, I have explained why I consider that, had the Minister taken the October 2009 remarks into account, there is no basis for concluding that his finding as to the risk of reoffending would have been altered in such a way that there was a possibility that the outcome overall would have been different. Those reasons also demonstrate that the October 2009 remarks were not critical to the Minister's decision. Any omission was unimportant. It did not affect the exercise of the Minister's power.

75    Thus, even if I had held that the October 2009 remarks were constructively before the Minister, I would not have held that the Mr Buchwald established jurisdictional error in the Minister’s failure to consider those remarks.

Was the Minister obliged to enquire after the remarks?

76    In SZNBX v Minister for Immigration and Citizenship (2009) 112 ALD 475 at [21], Bennett J said that Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 raised three considerations: first, whether the inquiry that the Tribunal failed to make was obvious; second, whether it concerned a critical fact, the existence of which was easily ascertained; and, third, whether it supplied a sufficient link to the outcome as to constitute a failure to review. I accept the Minister’s submission that the application of this test depends heavily upon identification of what is the “critical fact.” Here, the “critical fact” cannot be whether Mr Buchwald’s lack of empathy had a psychological cause, or whether his apparent lack of respect for authority had another cause, viz, his fear of assault while incarcerated. Rather, based upon the manner in which the Minister conducted his analysis, I consider that there were only two critical facts: what was the risk of Mr Buchwald’s re-offending, and what would be the likely harm were he to do so. So identified, it becomes clear that even if the first question raised in Bennett J’s considerations is answered affirmatively, the other two are not.

77    The October 2009 sentencing remarks, though they may have been easy to procure, do not allow easy ascertainment of either of the two critical facts. Rather, they contain (at best for Mr Buchwald) factors that weigh into the balance in consideration of the two critical facts. That being the case, this is not the nature of enquiry contemplated by SZIAI as being one that the fact-finder was required to make.

Conclusion

78    Mr Buchwald has failed to establish that the Minister’s decision to cancel his Visa is affected by jurisdictional error. It follows that Mr Buchwald’s application must be dismissed.

79    Each party submitted that, in the event it was successful, the other party should pay its costs. Mr Buchwald did not make any submission as to what order ought to be made in the event that he was unsuccessful. While I am not aware of any circumstance that would warrant departure from an order that costs should follow the event, I will give Mr Buchwald an opportunity to make submissions (supported by affidavit, if he desires), within 14 days, in support of a different order. In the event Mr Buchwald makes such submissions, the Minister will have 7 days to respond (again supported by affidavit, if he desires). Assuming there is no objection, and if the issue of costs appears to be appropriate to deal with on the papers, I will deal with it on the papers. In the absence of submissions in support of a different costs order, I will order that Mr Buchwald pay the Minister’s costs of this application.

Associate:

Dated:    16 February 2016