FEDERAL COURT OF AUSTRALIA

Coker v Minister for Immigration and Border Protection [2017] FCA 929

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Assistant Minister made on 29 August 2016 not to revoke the decision to cancel the applicant’s visa be quashed.

2.    The respondent determine the applicant’s application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law.

3.    Subject to paragraph 4, the respondent pay the applicant’s costs of the proceeding, to be taxed if not agreed.

4.    If the respondent wishes to seek a variation of the costs order in paragraph 3, he may give notice in writing to the Court and the applicant within three business days.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, who is a national of Sierra Leone, arrived in Australia on 10 September 2009. His mother had been granted a Refugee and Humanitarian (Class XB) — Woman at Risk (Subclass 204) visa, and he had been granted a like visa as a member of her family unit. The applicant was aged 17 years at the time the visa was granted and 18 years at the time of his arrival in Australia.

2    On 11 February 2011, the applicant committed the offence of doing grievous bodily harm. The offence involved stabbing a 13 year old with a knife. The applicant pleaded guilty and, on 2 October 2012, was sentenced to four years and three months imprisonment, a sentence ending on 1 January 2017. The sentencing judge fixed the eligibility date for parole as 2 July 2014.

3    On 13 January 2015, the Central and Northern Queensland Regional Parole Board (the Parole Board) decided to release the applicant on parole on 3 February 2015. This was approximately two years before the end of his sentence. The Parole Board’s decision was notified to the applicant by a letter dated 19 January 2015. Enclosed with the letter was a Parole Order made by the Parole Board under the Corrective Services Act 2006 (Qld).

4    On 30 January 2015, a delegate of the respondent (the Minister) decided to cancel the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). That subsection provides that 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 (relevantly) the person has a substantial criminal record; and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. There is no issue that the applicant’s circumstances fell within the criteria for mandatory cancellation set out in s 501(3A).

5    The applicant applied, pursuant to s 501CA of the Migration Act, for revocation of the cancellation decision. On 27 February 2015, the applicant’s solicitors, Holding Redlich, provided submissions on his behalf. A prominent aspect of these submissions was that the Parole Board had granted the applicant parole. This was relied on as demonstrating that he did not pose a threat to the Australian community.

6    On 29 August 2016, the Assistant Minister for Immigration and Border Protection (the Assistant Minister) decided not to revoke the cancellation decision. It will be convenient to refer to the decision not to revoke the cancellation decision as the Decision. The Assistant Minister signed a statement of reasons for the Decision on the same day (the Statement of Reasons). In the context of considering the risk posed by the applicant to the Australian community, the Statement of Reasons expressed concern that the applicant was not rehabilitated, referred to remarks of the sentencing judge, and included a finding that the risk posed by the applicant “must be considered very serious in nature”. The Statement of Reasons did not refer to the decision of the Parole Board to release the applicant on parole.

7    On 12 October 2016, the applicant commenced a proceeding in the Federal Circuit Court of Australia seeking judicial review of the Decision. That proceeding was subsequently transferred by consent to this Court.

8    By his amended application, the applicant relies on four grounds in support of his application for judicial review of the Decision. In summary, these grounds are that:

(a)    the Assistant Minister failed to consider whether the applicant’s removal from Australia to Sierra Leone would breach Australia’s non-refoulement obligations (the Non-Refoulement Ground);

(b)    the Assistant Minister, in reaching the conclusion that the applicant represented “an unacceptable risk of harm to the Australian community”, failed to consider the applicant’s submission and evidence that the Parole Board had decided to grant him release on parole (the Parole Ground);

(c)    the Assistant Minister effectively required the applicant to prove his rehabilitation in the community, which was impossible for him to do (the Rehabilitation Ground); and

(d)    the Assistant Minister effectively required the applicant to “rule out” the possibility of him re-offending, which was impossible for him to do (the Re-offending Ground).

9    The issues raised by the Non-Refoulement Ground were considered by the Full Court of this Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (BCR16). At the time of the hearing of the present matter, the Full Court had heard the appeal and judgment was reserved. After the Full Court handed down its judgment, the parties in the present proceeding were given leave to file supplementary submissions addressing the impact of BCR16 on the present case. The parties filed supplementary submissions in accordance with an agreed timetable. The applicant’s position is that the Full Court’s decision is dispositive of the Non-Refoulement Ground in his favour. The Minister notes that he has filed an application for special leave to appeal to the High Court of Australia from the decision in BCR16. The Minister invites the Court to reserve judgment on the Non-Refoulement Ground pending resolution of the application for special leave and any appeal.

10    For the reasons that follow, my conclusions in relation to the grounds raised by the applicant are as follows:

(a)    In relation to the Parole Ground, I consider that the Assistant Minister failed to consider the applicant’s submissions and evidence relating to the Parole Board decision. In the circumstances, this constituted a constructive failure to exercise jurisdiction, a denial of procedural fairness and a failure to carry out the statutory task.

(b)    In relation to the Rehabilitation Ground and the Re-offending Ground, I reject the applicant’s challenge to the decision of the Assistant Minister.

(c)    In light of my conclusion in respect of the Parole Ground, it is unnecessary to determine the Non-Refoulement Ground. However, I make some observations regarding this ground.

11    It follows that the Decision should be quashed, and an order made that the respondent determine the applicant’s application for revocation of the cancellation decision according to law.

Key legislative provisions

12    It is convenient to set out the key legislative provisions of present relevance before setting out the facts. Section 501 of the Migration Act relevantly provided:

(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.

13    That provision referred, relevantly for present purposes, to paragraphs (6)(a) and (7)(c) of s 501, which provided as follows:

(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 …

14    Section 501CA provided:

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

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

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

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

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

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

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

(ii)    particulars of the relevant information; and

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

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

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

(b)    the Minister is satisfied:

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

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

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

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

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

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

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

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

Background facts

15    The following statement of the background facts is based on the material in the Application Book and that contained in two additional affidavits relied on at the hearing. The additional affidavits were:

(a)    an affidavit of Kylie Hall, a solicitor at Holding Redlich, the solicitors for the applicant, dated 6 February 2017; and

(b)    an affidavit of Elena Arduca, a solicitor at the Australian Government Solicitor, the solicitors for the respondent, dated 7 February 2017.

Neither deponent was cross-examined.

16    The applicant first arrived in Australia on 10 September 2009, aged 18, as a dependent of his mother, who had been granted permanent residence as a “Woman at Risk”. The applicant was also granted a Woman at Risk (Subclass 204) visa, as a member of his mother’s family unit.

17    On 11 February 2011, the applicant committed the offence of doing grievous bodily harm. The circumstances of the offending were set out in a schedule of facts that was before the sentencing judge. The judge summarised those circumstances as follows:

… this offence arose out of a plan that groups of diverse races would fight each other. This behaviour of group animosity and violence towards other racial groups is disgraceful.

You, though, went to this incident armed with a knife, and you produced the knife, and you used the knife. Taking a knife to a fist fight and using it, is intolerable.

It seems that the victim, who was only 13 years of age, entered the fray because of your assaulting another whilst holding the knife. You stabbed the victim in the back. The injury was life-threatening. The stab cut the intercostal artery, causing a massive blood loss. Indeed, without surgical intervention the complainant would have bled to death.

18    On 2 October 2012, the applicant (who had pleaded guilty) was convicted in the District Court of Queensland of the offence and sentenced to four years and three months imprisonment. In sentencing the applicant, the judge noted the following (in addition to the statements quoted above):

(a)    The applicant was 19 years of age at the time of the offence and 21 years at the time of sentencing.

(b)    The applicant had no criminal history of any moment.

(c)    The applicant had experienced a very difficult childhood and upbringing. He was a refugee from Sierra Leone and had suffered significantly in refugee camps before coming to Australia.

(d)    The applicant was in a stable relationship and his partner was soon expecting their first child.

(e)    When interviewed by police, the applicant gave a self-serving and dishonest version of events, denying stabbing the victim.

(f)    The matter was due to commence as a trial that day. The applicant’s plea of guilty was a late one, which seemed to have occurred in the context of a relatively strong Crown case.

(g)    The applicant’s plea of guilty would nonetheless be taken into account.

(h)    There had been “absolutely no expression of remorse” made on the applicant’s behalf, and the applicant’s behaviour to date did not suggest any remorse.

19    The sentence period of four years and three months ended on 1 January 2017.

20    On 13 January 2015, the Parole Board decided to release the applicant on parole on 3 February 2015. By letter dated 19 January 2015, the Parole Board wrote to the applicant informing him of the decision (AB64). Enclosed with the letter was a Parole Order made by the Parole Board under the Corrective Services Act (AB103-104). The Parole Order was a two-page document setting out, among other things, a series of conditions applicable to the applicant’s release.

21    On 30 January 2015, a delegate of the Minister decided to cancel the applicant’s visa under s 501(3A) of the Migration Act (referred to in these reasons as the cancellation decision). This decision was notified to the applicant by a letter of the same date. The letter stated that, while the applicant’s visa had been cancelled and he no longer held a visa, he had the opportunity to request that the cancellation decision be revoked. It was explained that s 501CA(4) of the Migration Act allowed the applicant to make representations about the possible revocation of the cancellation decision on the grounds that: (a) he passed the character test; or (b) there was another reason why the cancellation decision should be revoked. This letter also stated that, if the applicant decided to request revocation, he could write to the Department of Immigration and Border Protection (the Department) “with the reasons why you think the original decision should be revoked” using the attached form. A copy of Direction 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65) was also enclosed. It was explained that the Direction identified “issues that are relevant to the revocation consideration” and that the applicant should address each paragraph in Part C of the Direction that was relevant to his circumstances. The letter stated that if the decision-maker (in relation to the decision whether or not to revoke the cancellation) is a delegate of the Minister, the delegate must follow Direction 65, whereas if the Minister makes the decision personally, he or she is not required to give consideration to Direction 65, “though it provides a broad indication of the types of issues that he or she may take into account in determining whether or not to revoke the original decision”.

22    The applicant completed and submitted the request for revocation form. In the section headed “Reasons for Revocation”, the applicant referred, among other things, to the Ebola crisis in Sierra Leone. It was also stated that full reasons for revocation were set out in Holding Redlich’s attached submissions dated 27 February 2015 (referred to below). In a personal details form, apparently submitted with the request for revocation, in response to the question “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?”, the applicant ticked the box for “Yes” and provided the following comments:

Country in War, Ebola Crisis, Sister kidnapped by rebels, Father killed by rebels – in fear I will share the same fate if I am returned or killed by Ebola.

23    By letter dated 27 February 2015, Holding Redlich provided submissions in support of revocation of the cancellation decision on behalf of the applicant. The letter was 10 pages in length plus seven annexures. The submissions set out in the letter sought to address each of the considerations referred to in Part C of Direction 65. In particular, the letter included the following submissions regarding the decision of the Parole Board:

    On page 1, the letter stated: “[The applicant] was provided with a letter granting him parole on 19 January 2015. He was to be released on 3 February 2015 and was keenly anticipating being able to spend time with his young son and other family members, and start his life afresh. In the intervening period, on 30 January 2015, his visa was cancelled. We note that the cancellation of his visa has therefore caused his continued incarceration since 3 February 2015, even though he has been paroled.”

    On page 2, in connection with the protection of the Australian community from criminal or other serious conduct, the letter stated: “There is no evidence to suggest that [the applicant] is likely to cause future harm. In fact, the parole assessment authority’s determination that he should be released from incarceration on 3 February 2015 demonstrates that he has been assessed as not posing a threat to the Australian community (see Annexure 1).” (Annexure 1 to Holding Redlich’s letter was the letter from the Parole Board dated 19 January 2015.)

    Also on page 2, in connection with the sentence imposed by the courts, the Holding Redlich letter stated: “Although [the applicant] was originally sentenced to four years and three months of imprisonment, it must be borne in mind that he was to be released on parole on 3 February 2015. His early release date demonstrates that the parole assessment board had determined that he no longer posed a threat to the Australian community.”

    On page 3, in connection with the likelihood of the non-citizen engaging in further criminal or other serious conduct, the letter stated: “There is no evidence to suggest that [the applicant] is in any way likely to cause future harm. In fact, the parole assessment authority’s determination that he should be released from incarceration on 3 February 2015 demonstrates that he has been determined to not pose a threat to the Australian community.”

    On page 10, in the section headed “Conclusion”, the letter referred, among other things, to the applicant’s “rehabilitation as demonstrated by his being paroled”.

24    The Holding Redlich letter included a number of other submissions in connection with the protection of the Australian community, but it is unnecessary to refer to these for present purposes. The letter also included submissions in relation to: the best interests of minor children in Australia; the expectations of the Australian community; and other considerations. In the section headed “Other considerations”, Holding Redlich noted that “Section 14 [of Direction 65] sets out other considerations relevant to revocation requests”. Holding Redlich noted that these considerations included, but were not limited to: “[i]nternational non-refoulement obligations”; and the “[s]trength, nature and duration of ties”. (These two considerations correspond to the first two matters referred to in cl 14(1) of Direction 65.) Certain submissions were then set out. It is not altogether clear whether the submissions were intended to address both of those considerations or only the second. Among these submissions, it was contended that the removal of the applicant from Australia would cause his Australian-citizen mother “great distress”. In this regard, it was submitted that “she holds grave fears for [the applicant’s] well-being if he is forced to return to Sierra Leone”.

25    On 28 April 2015, Holding Redlich sent a short, supplementary letter to the Department. It is not necessary to refer to the detail of this letter for present purposes.

26    On 19 January 2016, the Department wrote to the applicant giving notice that the Department had received certain information that might be taken into account when making the decision whether or not to revoke the cancellation decision. The identified information was: a National Police Certificate dated 20 May 2015; a copy of the transcript of the proceedings in the District Court on 2 October 2012; and a sentence calculation report from Queensland Corrective Services created on 23 January 2015.

27    On 29 August 2016, the Assistant Minister decided not to revoke the cancellation decision (the decision of the Assistant Minister being referred to in these reasons as the Decision). The page on which the Decision is recorded included a statement that “I have considered all relevant matters including an assessment of the character test as defined by s 501 of the Migration Act 1958, and all evidence before me provided by, on behalf of, or in relation to [the applicant] in connection with the possible revocation, under s 501CA(4), of the decision under s 501(3A) to cancel [the applicant’s] … visa”. The Assistant Minister’s Decision was expressed in the following terms:

Mr COKER has made representations about revocation of the visa cancellation decision in accordance with the invitation. I am not satisfied that Mr COKER passes the character test (as defined by section 501). Nor am I satisfied that there is another reason why the original decision should be revoked. My reasons for this decision are set out in the attached Statement of Reasons.

28    Also on 29 August 2016, the Assistant Minister signed the Statement of Reasons. This document recorded, at [3], that the applicant had made representations through his legal representative, Holding Redlich, seeking revocation of the cancellation decision. It was stated that these representations were made within the period and in the manner set out in the regulations. The Statement of Reasons addressed, at [4]-[9], whether or not the Assistant Minister was satisfied that the applicant passed the character test (this being one of the bases for revocation, under s 501CA(4)(b)(i)). The Assistant Minister concluded that he was not satisfied that the applicant passed the character test. In the course of his consideration of this issue, the Assistant Minister stated (at [7]): “I have considered the representations made by [the applicant] and the documents he has submitted in support of his recommendations”.

29    The Statement of Reasons then addressed whether or not the Assistant Minister was satisfied that there was another reason why the cancellation decision should be revoked (this being the other basis for revocation, under s 501CA(4)(b)(ii)). The Assistant Minister stated (at [11]): “In undertaking this task, I assessed all of the information set out in the attachments. In particular, I considered [the applicant’s] representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked”. At [12], the Assistant Minister summarised the reasons that had been put forward by the applicant in support of his request for revocation. One of these was summarised as: “He will not reoffend”.

30    In the course of considering the expectations of the Australian community, the Assistant Minister stated (at [18]): “I note that, as further discussed below, [the applicant] has not at present proven that he is rehabilitated”.

31    Under the heading “International non-refoulement obligations”, the Assistant Minister stated:

22.    Mr COKER entered Australia as a dependant of his mother, who was granted a Woman at Risk visa. He has expressed concerns about returning to Sierra Leone, which is mainly addressed below. One of his claims is that Sierra Leone is ‘a war zone country not stable in the least’. It is not clear if this is a claim that relates to the Refugees Convention and may give rise to international non-refoulement obligations. However Mr COKER is able to make a valid application for another visa.  In particular I note that Mr COKER is not prevented by s501E of the Act from making an application for a Protection visa.  Thus it is unnecessary to determine whether non-refoulement obligations are owed to Mr COKER for the purposes of this decision.

32    In connection with the extent of the impediments if the applicant were removed from Australia to Sierra Leone, the Assistant Minister’s reasons included the following:

27.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr COKER will face if removed from Australia to his home country of Sierra Leone in establishing himself and maintaining basic living standards.

28.    I note that Mr COKER is 24 years of age and has not submitted that he has any medical issues which would compromise his ability to work and support himself.

29.    I have taken into consideration that Mr COKER states he does not have the skills or life experience required to live independently in Sierra Leone as he fled from there when he was three years of age. He states that he has no relatives or friends and no economic support available to him in Sierra Leone, and lacks the financial means to establish himself there.

30.    I accept that general conditions in Sierra Leone would make it difficult to find employment and that Mr COKER, as someone who has not lived there since early childhood, would have difficulty in adjusting to life in Sierra Leone. I have given full consideration to the hardship Mr COKER may face upon returning to Sierra Leone.

33    The Assistant Minister addressed the protection of the Australian community at [32]-[42] of the Statement of Reasons. At [32], the Assistant Minister noted the applicant’s claim that “he is rehabilitated”. The Assistant Minister discussed the seriousness of the applicant’s criminal offending at [33]-[37]. The Assistant Minister stated, at [38], that in considering whether the applicant represented an unacceptable risk of harm, he had “had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases”. In making his assessment regarding the risk to the Australian community, the Assistant Minister stated (at [39]) that he had given regard to: “the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct”; and “the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending”. The Statement of Reasons then included the following paragraphs:

40.    In sentencing, the judge noted that when interviewed by police, Mr COKER had denied stabbing the victim and that there had been ‘absolutely no expression of remorse’ made by Mr COKER or on his behalf and his behaviour did not suggest any remorse.  In this regard, I note that Mr COKER’s current representations still do not express remorse or concern for the victim of his offence, and continue to claim that his stabbing of a 13 year old boy in the back was accidental and he was inadvertently involved in the whole incident. These statements, which are at odds with the findings of the court, indicate to me that Mr COKER still does not accept responsibility for his offending and add to my concern that he is not rehabilitated.

41.    The available information indicates that Mr COKER has undertaken English lessons whilst in prison; however there is no evidence available to me that he has participated in treatment or completed violence-related rehabilitation programs. Also, I note that any progress that Mr COKER may have made towards rehabilitation and his ability to avoid further offending is yet to be tested in the community.

42    While acknowledging that Mr COKER has only one serious criminal offence recorded, the matters referred to above lead me to find that reoffending cannot be ruled out in his case. Should he do so, the potential consequences for a member or members of the Australian community could be very grave, in terms of physical harm. I find that the risk that Mr COKER represents must be considered very serious in nature.

34    The final section of the Statement of Reasons is the conclusion. In the course of this section, the Assistant Minister stated (at [46]): “I find that the Australian community could be exposed to great harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the applicant]. The Australian community should not have to accept a risk of further violent offending.” The Assistant Minister concluded, at [50], that the applicant “represents an unacceptable risk of harm to the Australian community”.

35    The Statement of Reasons did not refer to the Parole Board decision to release the applicant on parole.

36    The attachments to the Statement of Reasons included the letter from Holding Redlich dated 27 February 2015 and a copy of the letter dated 19 January 2015 from the Parole Board. (I note for completeness that, in the attachments to the Statement of Reasons, the first page of the two-page Parole Order (that was apparently enclosed with the Parole Board’s letter) is missing. A complete copy of the Parole Order appears at AB103-104. I do not think anything turns on this, as the Parole Board’s letter dated 19 January 2015 (AB64) – which was attached to the Statement of Reasons – made clear that the applicant had been granted parole.)

37    The material before the Court includes, through Ms Arduca’s affidavit, a copy of a submission to the Assistant Minister (the Submission), and the attachments to that submission, in relation to the decision whether or not to revoke the cancellation decision. It is apparent that the Submission was considered by the Assistant Minister, as he signed it on 29 August 2016, indicating his decision or position with respect to various matters that had been raised for his consideration.

38    The Submission did not refer to the decision of the Parole Board to release the applicant on parole. Under the heading “Rehabilitation and mitigating circumstances”, the Submission stated:

17.    Mr COKER states that he will not reoffend and that the risk of removal from Australia has been a ‘wake up call’ for him (Attachment F). It has been submitted on his behalf that he has committed only one serious offence and that this occurred when he was a very young man and should be seen in the context of his traumatic early life, when he witnessed much violence and death, including to his own family members.

Attachment F, referred to in the above passage, was a handwritten letter from the applicant. The letter from Holding Redlich dated 27 February 2015 was attachment E3, and the Parole Board’s letter was attachment E4. Neither was referred to in this section of the Submission.

39    The Submission also included the following statements under the heading “Other Relevant Information”:

26.    Mr COKER has not provided any evidence of rehabilitative training. He has been in custody since being convicted of the above offence.

27.    Mr COKER’s rehabilitation has not been tested in the community, as he has been held in immigration detention since his release from prison.

40    In connection with the impediments that the applicant would face if he were returned to Sierra Leone, the Submission stated (at [18]) that the applicant “is concerned that if he is returned to Sierra Leone, with a war and the Ebola crisis continuing, he will be killed by the rebels or the Ebola virus (Attachment G)”. Attachment G was another handwritten letter from the applicant.

The application for judicial review

41    As noted above, the proceeding was commenced in the Federal Circuit Court of Australia and transferred to this Court. At the hearing of the application, the applicant sought leave to amend his application to add the words “denied the applicant procedural fairness” in each of grounds 1 and 2. This was not opposed and leave was granted. The four grounds in the amended application are as follows:

1.    The Assistant Minister constructively failed to exercise his jurisdiction, denied the applicant procedural fairness, or otherwise failed to carry out his statutory task, by failing lawfully to consider a “reason” claimed by the applicant as to why the Visa Cancellation Decision should be revoked. Further or alternatively, the Assistant Minister failed to take into account the Act and its operation in making his decision, or misunderstood the Act and its operation in making his decision.

Particulars

a.    One “reason” claimed by the applicant as to why the Visa Cancellation Decision should be revoked was that his removal from Australia to Sierra Leone would breach Australia’s non-refoulement obligations.

b.    The Assistant Minister was required lawfully to consider this claim.

c.    The Assistant Minister thought it “unnecessary” to consider this claim, on the basis that the applicant was “able to make a valid application for another visa”.

d.    As a consequence of the applicant’s “representations” under section 501CA(4) of the Act, the Assistant Minister was required to assess the “reasons” claimed by the applicant as to why the Visa Cancellation Decision (i.e., to cancel his Woman at Risk (Permanent) visa) should be revoked.  The fact that the applicant was able to make an application for a new and different visa was irrelevant, and did not avoid this obligation.

e.    Furthermore, and in any event, the implicit premise to the Assistant Minister’s reasoning – i.e., that if the applicant was to make an application for a protection visa then any claims that may give rise to international non-refoulement obligations would “necessarily” be considered in that context – was false. If the applicant was to make an application for a protection visa, there are multiple pathways by which the Minister might decide under section 65(1)(b) to refuse to grant the visa without considering Australia’s non-refoulement obligations.

2.    The Assistant Minister constructively failed to exercise his jurisdiction, denied the applicant procedural fairness, or otherwise failed to carry out his statutory task, by failing lawfully to consider significant evidence provided by the applicant in support of a claim, or alternatively by failing to consider a submission worthy of serious consideration.

Particulars

a.    The applicant made a claim to the effect that he no longer represented an unacceptable risk to the Australian community.

b.    In support of this claim, the applicant provided evidence that the Parole Board had decided to grant the applicant release on parole on 3 February 2015.

c.    On 27 February 2015, the applicant, by his representative, referred to the Parole Board’s decision to grant the applicant release on parole on 3 February 2015, and submitted that this “demonstrates that he has been determined to not pose a threat to the Australian community”.

d.    The Assistant Minister was required lawfully to consider this evidence, and this submission.

e.    The Assistant Minister addressed the protection of the Australian community in paragraphs 32 to 42, 46 and 50 of his statement of reasons. The Assistant Minister concluded, at paragraph 50, that the applicant “represents an unacceptable risk of harm to the Australian community”.  When addressing this issue and reaching this conclusion, the Assistant Minister failed completely to consider the applicant’s evidence or submission.

3.    The Assistant Minister constructively failed to exercise his jurisdiction, took into account an irrelevant consideration, made a decision (or adopted a mode of reasoning) that was legally unreasonable, or otherwise failed to carry out his statutory task, by effectively requiring the applicant to “prove” his “rehabilitation” in a manner that it was impossible for him to do.

Particulars

a.    The Minister concluded that the applicant had not “proved” that he no longer represented an unacceptable risk of harm to the Australian community, in part, on the basis that “any progress that [the applicant] may have made towards rehabilitation and his ability to avoid further offending is yet to be tested in the community” (emphasis added).

b.    The circumstances in which a decision under section 501CA to revoke the automatic cancellation of the visa of a person serving a sentence of imprisonment [is] made are such that it is impossible for the person to demonstrate their rehabilitation “in the community”. The person is subject to imprisonment, and then to immigration detention.

c.    Accordingly, it was impossible for the applicant to demonstrate his rehabilitation “in the community”.

d.    Accordingly, by concluding that the applicant had not “proved” that he no longer represented an unacceptable risk of harm to the Australian community, in part, on the basis that his rehabilitation was “yet to be tested in the community”, the Assistant Minister:

i.    took into account an irrelevant consideration (being the failure of the applicant to provide evidence that the applicant could not possibly provide);

ii.    alternatively, made a decision (or adopted a mode of reasoning) that was legally unreasonable.

4.    The Assistant Minister constructively failed to exercise his jurisdiction, took into account an irrelevant consideration, made a decision (or adopted a mode of reasoning) that was legally unreasonable, or otherwise failed to carry out his statutory task, by effectively requiring the applicant to “rule out” the possibility of him reoffending, which was impossible for him to do.

Particulars

a.    The Minister concluded that the applicant had not “proved” that he no longer represented an unacceptable risk of harm to the Australian community, in part, on the basis that “reoffending cannot be ruled out in his case”.

b.    It was impossible for the applicant to “rule out” the possibility that he would reoffend.

c.    Accordingly, by concluding that the applicant had not “proved” that he no longer represented an unacceptable risk of harm to the Australian community, in part, on the basis that “reoffending cannot be ruled out in his case”, the Assistant Minister:

i.    took into account an irrelevant consideration (being the failure of the applicant to give evidence that the applicant could not possibly provide);

ii.    alternatively, made a decision (or adopted a mode of reasoning) that was legally unreasonable.

Sections 501(3A) and 501CA

42    I described the background to ss 501(3A) and 501CA in Marzano v Minister for Immigration and Border Protection [2016] FCA 1180 at [44]-[45]. I refer to that discussion, without setting it out.

43    As noted in Marzano at [46], the provisions were considered by Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430. In that case, the applicant contended that there had been a denial of procedural fairness in relation to the Minister's decision under s 501CA not to revoke a cancellation decision. Tracey J explained (at [40]) that: s 501(3A) requires the Minister to cancel a visa if he or she (or a delegate) is satisfied that the holder does not pass the character test and is serving a sentence of imprisonment; as a result, the reasons for a cancellation decision can be very shortly stated; and there is no need for a decision-maker to have regard to any discretionary considerations. Tracey J then stated (at [40]) that, in this context, s 501CA is an ameliorative provision, which requires the Minister to invite representations from the person whose visa has been cancelled about the revocation of the cancellation decision and confers on the Minister a discretion to revoke the cancellation. In relation to s 501CA(3), Tracey J noted that: the Minister is required to provide a person whose visa has been cancelled under s 501(3A) with written notice of the cancellation decision and particulars of “the relevant information” relating to the making of the decision; such “relevant information” is defined in s 501CA(2) as information that the Minister considers “would be the reason, or part of the reason, for making the [cancellation] decision” and “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”; and that the obligation thus relates to information bearing on the decision to cancel, not information on which the Minister might rely in deciding whether or not to revoke the cancellation decision. Tracey J observed (at [40]) that “[t]his is a somewhat strange provision given that the cancellation will have occurred because the Minister (or his delegate) will have been satisfied of two objectively ascertainable facts”. Tracey J referred (at [41]) to Direction 65 and stated that it identified a series of broad considerations which the Minister could, but was not obliged to, take into account when reaching a decision. Tracey J then stated (at [42]):

It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant’s circumstances and conduct. If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant’s case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision.

44    Sections 501(3A) and 501CA(4) have also been considered by the Full Court of this Court in BCR16, Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78 (BSJ16), Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 and Parker v Minister for Immigration and Border Protection [2017] FCAFC 115 (Parker).

The Parole Ground

45    It will be convenient to deal first with the Parole Ground. The applicant contends that the Assistant Minister constructively failed to exercise his jurisdiction, denied the applicant procedural fairness, or otherwise failed to carry out his statutory task, by failing lawfully to consider significant evidence provided by the applicant in support of a claim, or alternatively by failing to consider a submission worthy of serious consideration. The applicant relies on the submissions made and information provided by Holding Redlich about the Parole Board’s decision to release the applicant on parole.

46    In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf), McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) cited (at [82]) the following passage from Craig v South Australia (1995) 184 CLR 163 at 179:

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

47    In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT), Robertson J (at [97]), after setting out the above passage, explained: “Thus merely to ignore ‘relevant material’ does not establish jurisdictional error.” His Honour continued: “This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.” This passage from Robertson J’s judgment in SZRKT was relied on in the written submissions of both the applicant and the Minister in the present proceeding.

48    In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 (Dennis Willcox), the Full Court of this Court (Woodward, Jenkinson and Foster JJ) held that the Administrative Appeals Tribunal had erred in law in circumstances where its reasons were devoid of any reference to a submission and a question of fact concerning the value of certain shares. As noted by Jenkinson J (with whom Woodward and Foster JJ agreed) (at 276), s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) required that, subject to certain restrictions that were not relevant, the tribunal should give reasons in writing for its decision, and that the reasons should include its findings on material questions of fact. Jenkinson J stated (at 276-277):

There is also the further possibility that the tribunal’s failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975, or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal “on a question of law” is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent’s decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal’s decision was vitiated by error of law: see Pettitt v Dunkley [1971] 1 NSWLR 376.

49    In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, a visa applicant (the first respondent to the appeal), a national of Zimbabwe, claimed fear of persecution because of his political opinion in support of the Movement for Democratic Change, and his opposition to the Zimbabwean government and the Zimbabwe African National Union – Patriotic Front. He also claimed to fear persecution as a member of a particular social group based on his family membership or as a returnee who had lived in a Western country. The protection visa was refused and the Refugee Review Tribunal affirmed the decision. The visa applicant sought judicial review of the decision on the basis that the Tribunal had made a jurisdictional error by not having regard to recent country information. The Full Court (Kenny, Griffiths and Mortimer JJ) noted (at [44]) that the Tribunal’s reasons did not contain any evaluation of the situation in Zimbabwe at the time of its decision. The Full Court considered that the absence of any such evaluation in the face of what the visa applicant and his adviser had submitted, and in the context of the Tribunal’s statutory task, could only signify a constructive failure to exercise jurisdiction. The Full Court also said, at [46], that although in one sense the absence of any evaluation of the visa applicant’s post-hearing submission on the point might be described as a “failure to consider” the most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in the Full Court’s opinion the error was, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a) of the Migration Act. See also the Full Court’s reasons at [62].

50    In the present case, the Minister’s submissions in response to the Parole Ground can be summarised as follows:

(a)    It is clear from the attachments to the Submission that the Assistant Minister had before him the submission from the applicant’s representative dated 27 February 2015 (which referred to the applicant’s release on parole), the letter from the Parole Board dated 19 January 2015, as well as the Queensland Corrective Services report created on 23 January 2015. The last document indicated that at a meeting on 13 January 2015, it was decided to release the applicant on parole on 3 February 2015.

(b)    The Statement of Reasons itself includes a statement that in undertaking the task (contemplated by s 501CA(4)(b)(ii)), the Assistant Minister assessed all of the information set out in the attachments and, in particular, considered the applicant’s representations and the documents that supported the representations (which included the documents referred to in (a) above). These statements by the Assistant Minister should be accepted.

(c)    In weighing the factors leading to a conclusion concerning the risk posed by the applicant to the Australian community, the Assistant Minister took into account that: the applicant had not shown any remorse for his offending; the applicant had not accepted responsibility for his offending; and there was no evidence that the applicant had participated in treatment or completed violence-related rehabilitation programs. The Assistant Minister also took into account the findings of the sentencing judge, indicating that the applicant did not accept responsibility for his offending, in support of the conclusion that the applicant had not yet been rehabilitated.

(d)    In any event (and without any indication that in fact this is what occurred), the failure to take into account some evidence or submission does not necessarily lead to a conclusion that the Assistant Minister failed to consider the merits of the claim or that he failed to give proper and genuine consideration to relevant matters: Buchwald v Minister for Immigration and Border Protection (2016) 242 FCR 65 at [72]. Error going to jurisdiction is only established if ignoring relevant material affects the exercise of the relevant power: Yusuf at [82]; SZRKT at [97].

(e)    Just as it has been held in the context of s 501(1) and (2) of the Migration Act that it is largely for the Minister to decide whether to treat a particular claim as relevant to his exercise of discretion and what weight to accord to it (Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [43]), likewise it is largely for the Minister to decide on the relevance and weight to be accorded to a particular reason advanced in representations following the invitation in s 501CA(3), in the context of deciding whether the Minister is satisfied that there is a reason why the cancellation decision should be revoked under s 501CA(4)(b)(ii).

(f)    Here, the Assistant Minister took into account various factors in making his decision that the applicant represented an unacceptable risk to the community, including that the applicant claimed to have been rehabilitated, this being a matter to which the Parole Board evidence and submissions were directed.

51    In oral submissions, counsel for the Minister indicated that the Minister’s submissions on this ground operate at two levels. First, if the Assistant Minister did not consider the Parole Board material, it did not need to be considered. This was because the Parole Board material did not have a sufficient “quality of cogency” about it. In particular, there was no indication of the factors that the Parole Board had taken into account in reaching its decision. Secondly, it was submitted (in reliance on [7] and [11] of the Statement of Reasons) that the Assistant Minister had considered all the material and that there is no reason not to take these statements of the Assistant Minister at face value.

52    In my view, the applicant has established that the Assistant Minister failed to consider the submissions and information provided by Holding Redlich about the Parole Board’s decision to release the applicant on parole. The Statement of Reasons did not refer to the submissions or information concerning the decision of the Parole Board. Given the potential relevance of this material to the issue of the applicant’s risk to the Australian community, an issue discussed at [38]-[42] of the Statement of Reasons, one would expect it to have been referred to if taken into account. Thus the failure to refer to the material at all supports an inference that it was overlooked. Such an inference is also supported by the statutory context, which included, in s 501G of the Migration Act, an obligation to give a person who is the subject of a non-revocation decision under s 501CA a written notice setting out the reasons (other than non-disclosable information) for that decision (s 501G(1)(e)). The relevant section of the Statement of Reasons (namely [38]-[42]) included reference to the remarks of the sentencing judge, but not the (more recent) decision of the Parole Board. This tends to reinforce the inference that it was not considered. Similarly, this section of the Statement of Reasons referred to the absence of evidence that the applicant had completed violence-related rehabilitation programs, but not to the Parole Board decision. In circumstances where the Parole Board decision was potentially relevant to the applicant’s rehabilitation, the absence of any reference to it suggests that it was not considered.

53    The Submission does not assist the Minister in demonstrating that the submissions and information concerning the Parole Board decision were considered by the Assistant Minister. There was no reference to the Parole Board decision in the Submission itself. The paragraph of the Submission dealing specifically with “Rehabilitation and mitigating circumstances” (paragraph [17] of the Submission, set out at [38] above) did not mention the Parole Board decision. The paragraph referred to a single attachment (a handwritten letter from the applicant) but not the attachments which were the Holding Redlich letter or the Parole Board letter.

54    It is true that the Statement of Reasons contained statements to the effect that the Assistant Minister had considered the applicant’s representations and the documents he had submitted and assessed all of the information set out in the attachments (at [7] and [11]). A statement to similar effect was set out on the Decision page. I accept that, ordinarily at least, such a statement should be taken at face value (see, in this regard, Parker at [22]-[23]). However, the practical realities of the situation suggest that the Assistant Minister is likely to have been (quite properly) heavily reliant on the Submission in informing himself of the matters relevant to the decision whether or not to revoke the cancellation decision. It is unlikely, given his high office and the understandable constraints on his time that this would impose, that the Assistant Minister read each of the attachments to the Submission. The Minister may well have considered the applicant’s representations and documents and assessed the information in the attachments by way of considering the matters set out in the Submission. Thus, I do not think the statements at [7] and [11] of the Statement of Reasons and the like statement on the Decision page preclude a conclusion that, in the particular circumstances of this case as described above, it is to be inferred that the Assistant Minister did not consider the submissions and information relating to the Parole Board decision. (For completeness, I note that in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, the Full Court at [61] accepted that, despite the personal nature of the power (in that case, in s 501(3) of the Migration Act), the Minister was entitled to obtain assistance from departmental officers and members of his private staff, including having them prepare summaries of information for review by him, subject to the qualifications there set out.)

55    Further, in my view, the submission concerning the Parole Board decision was “worthy of serious consideration” and was “seriously advanced” on behalf of the applicant (to pick up the language of Jenkinson J in Dennis Willcox). The submission formed a prominent part of Holding Redlich’s letter dated 27 February 2015, as indicated by the passages set out at [23] above. The Parole Board is a government body exercising statutory functions under the Corrective Services Act and part of the criminal justice system of Queensland. Even without reference to Ministerial guidelines pertaining to the Parole Board (and there is no suggestion that these were before the Assistant Minister), it would be assumed that the safety of the community would be a priority, if not the highest priority, in deciding whether or not to grant a parole order. Thus, the decision of the Parole Board and the submissions based on it were worthy of serious consideration (even in the absence of reasons for the Parole Board’s decision). Of course, the weight to be given to the submissions and information about the Parole Board’s decision in the circumstances was a matter for the Assistant Minister.

56    For the same reasons, the information concerning the Parole Board decision, put forward as part of the applicant’s representations, was “critical and relevant” to the applicant’s case (to pick up the language of Tracey J in Picard at [42]).

57    In these circumstances, consistently with the authorities discussed at [43] and [46]-[49] above, the failure of the Assistant Minister to consider the submissions and information concerning the Parole Board’s decision to release the applicant on parole constituted a constructive failure to exercise jurisdiction, a denial of procedural fairness and a failure to carry out the statutory task. In particular, the failure to consider submissions and information (put forward as part of the applicant’s representations) that were “worthy of serious consideration” and that were “critical and relevant” to the applicant’s case involved a failure to perform the task conferred on the decision-maker by the legislation.

The Rehabilitation Ground and the Re-offending Ground

58    It is convenient to deal with these grounds together, consistently with the way they were presented in the applicant’s submissions. The applicant focuses on [41], [42] and [46] of the Statement of Reasons (set out at [33]-[34] above). The applicant submits that, having regard to the reasons in those paragraphs, it is apparent that the Assistant Minister “erected hurdles that it was simply impossible for the applicant to clear”.

59    The applicant’s submissions may be summarised as follows:

(a)    Having regard to the scheme of the Migration Act, it was impossible for the applicant to have his rehabilitation “tested” in the community. This is because: (i) the applicant’s visa was mandatorily cancelled under s 501(3A), and one of the conditions for that mandatory cancellation was that the applicant was, at the time of the cancellation, serving “a sentence of imprisonment, on a full-time basis in a custodial institution”; (ii) at the time of the cancellation decision, the applicant remained in prison, as his release on parole was not scheduled to occur until four days later; (iii) as a consequence of the mandatory cancellation of the applicant’s visa under s 501(3A), the applicant was subject to mandatory immigration detention under s 189 of the Migration Act; (iv) accordingly, the applicant necessarily moved straight from custodial detention to immigration detention – indeed, that was the very purpose of the scheme (see the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), [34]); and (v) thus, a person in the applicant’s position who requests the Minister to exercise his power under s 501CA to revoke a cancellation decision under s 501(3A) will necessarily not be free in the community.

(b)    The Minister’s task under s 501CA includes considering whether there is any reason why a mandatory cancellation decision under s 501(3A) should be revoked. That task is performed in a context where, necessarily, the applicant has failed the character test because they have been convicted of a crime deemed by Parliament to be very serious (ie, one where the applicant does not pass the character test because of s 501(6)(a) (substantial criminal record) on the basis of s 501(7)(a), (b) or (c), or because of s 501(6)(e) (sexually based offences involving a child)).

(c)    Of course, in this context, it is open to the Minister to consider the risks to the Australian community that may arise if the cancellation decision is revoked and the applicant is thereby able to live in the Australian community. Nevertheless, Parliament has contemplated that the Minister should consider whether there is a “reason” that an applicant who has been convicted of a very serious crime should be released.

(d)    For the Assistant Minister, in purporting to perform this task, to erect a hurdle that it is impossible for an applicant to clear (ie, proof of rehabilitation in the community) frustrates rather than effectuates Parliament’s purpose. It renders the process of considering revocation of a cancellation decision involving an applicant who has been convicted of a very serious crime a charade. The applicant simply cannot prove his rehabilitation in the community.

(e)    A similar vice infects the other hurdle that the Assistant Minister erected to revoking the cancellation of the applicant’s visa: “ruling out” “the possibility” of further offending by the applicant. Of course that possibility cannot be excluded. The possibility of any person committing an offence in the future cannot be excluded.

(f)    The Assistant Minister’s error in this context may be described in various ways (none of which is necessarily right or wrong: cf SZRKT at [77]; MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at [30]). One way to describe the Assistant Minister’s error is that he adopted a mode of reasoning that, having regard to the framework of the Migration Act, was legally unreasonable. There was evidence to the effect that there was a low prospect of the applicant re-offending and posing a risk to the community (including in the form of the decision of the Parole Board, which the Assistant Minister did not lawfully consider). But the applicant could not “prove” that he had been rehabilitated by showing evidence of good behaviour since his release from prison. No evidence based on the applicant’s behaviour in prison, however cogent, could ever exclude the possibility of the applicant re-offending if released into the community. The two hurdles that the Assistant Minister erected to being satisfied that the cancellation decision should be revoked were simply impossible for the applicant (or other persons in the position of the applicant) to clear.

60    In my view, for the reasons that follow, neither of these grounds is made out.

61    In relation to the Rehabilitation Ground, the applicant places significant emphasis on one passage from the Statement of Reasons and the reference in that passage to the applicant’s progress towards rehabilitation being “yet to be tested in the community” (Statement of Reasons, [41]). However, this reference needs to be understood in its proper context. The Assistant Minister made findings in relation to rehabilitation based on a number of factors. Although (as discussed above) the Assistant Minister failed to have regard to the submissions and information concerning the Parole Board’s decision, he did have regard to: the remarks of the sentencing judge; the representations made by the applicant (which were considered to lack remorse and to understate his level of culpability); and the absence of evidence that the applicant had participated in treatment or completed violence-related rehabilitation programs. The passage emphasised by the applicant occurred at the end of the Assistant Minister’s analysis with respect to rehabilitation and was expressed in terms of being a “note” or observation, rather than being a matter that operated decisively or with determinative effect. In these circumstances, the Assistant Minister did not erect a hurdle that was impossible for the applicant to clear.

62    In relation to the Re-offending Ground, the Assistant Minister was not under an obligation to evaluate in any particular way the risk of harm to the Australian community of the applicant re-offending: BSJ16 at [43]. The Assistant Minister weighed the gravity of harm (if the applicant re-offended) and the likelihood of re-offending. The statements in [42] and [46] of the Statement of Reasons to the effect that the Minister could not rule out the possibility of the applicant re-offending were in substance a finding that there was a risk of re-offending. This was sufficient, in my view, to support a rational and logical reasoning process. It is not shown that the Minister’s approach was legally unreasonable or otherwise in error as submitted by the applicant.

The Non-Refoulement Ground

63    As noted above, this ground in summary is that the Assistant Minister failed to consider whether the applicant’s removal from Australia to Sierra Leone would breach Australia’s non-refoulement obligations.

64    In light of the conclusion I have reached with respect to the Parole Ground, it is unnecessary to determine the Non-Refoulement Ground. However, I make the following observations. First, the last three sentences of [22] of the Statement of Reasons (set out at [31] above) are virtually the same as the last three sentences of the comparable paragraph in the statement of reasons considered in BCR16: see BCR16 at [16]. Thus, if and to the extent that the applicant in the present case made claims that may give rise to international non-refoulement obligations, the decision of the Full Court of this Court in BCR16 would appear to be applicable in the present case.

65    Secondly, there are some distinctions between the facts and circumstances of BCR16 and those of the present case that may be relevant to the determination of this ground. In BCR16, the applicant made representations to the effect that he would face harm upon return to Lebanon and, in this context, submitted “a great deal of country information about the situation in Lebanon for Alawites, as well as the high levels of sectarian violence in Lebanon” (BCR16 at [6]-[10]). This information was referred to in the briefing note prepared by the Department exclusively under the heading “International non-refoulement obligations” (BCR16 at [14]). The Assistant Minister in BCR16, in the statement of reasons, did not refer to these representations or to the related country information, and did not advert to the subject matter of the representations, except under the heading “International non-refoulement obligations” (BCR16 at [16]). However, in the present case, the matters said by the applicant to be capable of giving rise to international non-refoulement obligations (being the civil war in Sierra Leone and the Ebola epidemic) were referred to in the Submission under both the heading of “International non-refoulement obligations” and the heading “Impediments to return”. In each section of the Submission, the issues were described in substantially the same terms and by reference to the same attachment. Further, in the present case, the Assistant Minister arguably gave separate consideration to these matters in the section of the Statement of Reasons headed “Extent of impediments if removed” (paragraphs [27]-[30] of the Statement of Reasons).

Conclusion

66    For the reasons set out above, I consider that the Parole Ground is made out. Accordingly, orders should be made as set out at [11] above. It would appear to be appropriate that costs follow the event. Accordingly, I will also make an order that the Minister pay the applicant’s costs of the proceeding. However, as this matter was not the subject of submissions, I will allow a short period of time for the Minister to give notice if he seeks a variation of this order. In that event, directions will be made for the filing of written submissions on the question of costs.

Associate:

Dated:    15 August 2017