FEDERAL COURT OF AUSTRALIA

DLF16 v Minister for Immigration and Border Protection [2017] FCA 1072

ORDERS

The Court declares that:

The decision of the Respondent made on 13 October 2016 to refuse the Applicant a temporary protection (Class XD) visa was not made in accordance with law.

AND THE COURT ORDERS THAT:

1.    A writ of certiorari issue to the Respondent to quash the decision of the Respondent made on 13 October 2016 to refuse the Applicant a temporary protection (Class XD) visa.

2.    The Respondent pay the Applicant's costs of the proceeding.

3.    The parties have liberty to apply.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    The applicant in this proceeding is a stateless 32 year old man of Rohingyan ethnicity who was born and lived in Myanmar and then in Thailand and Malaysia, but who has no right to citizenship in any country. He entered Australia by boat on 12 April 2012 as an unauthorised maritime arrival. The application seeks judicial review of a decision of the respondent, the Minister for Immigration and Border Protection, to refuse the applicant a Temporary Protection (Class XD) visa on the basis that the Minister was not satisfied the applicant passed the “character test” in s 501 of the Migration Act 1958 (Cth) (the Act).

2    The application for judicial review alleges two grounds of jurisdictional error by the Minister in refusing the visa:

(a)    Ground 1 alleges that the Minister failed to have regard to information provided by the applicant, namely:

(i)    that on 3 June 2016 the Australian Security Intelligence Organisation (ASIO) advised that the applicant is not assessed by ASIO to be directly or indirectly a risk to security (the ASIO security clearance); and

(ii)    as to the context surrounding various incidents in which the applicant was allegedly involved while in immigration detention

as required by s 54 of the Act.

(b)    Ground 2 alleges that the Minister failed to comply with the obligation under s 57(2)(b) of the Act to ensure, as far as is reasonably practicable, that the applicant understands why certain information is relevant to the Minister’s consideration, and thereby deprived the applicant of a fair hearing.

3    For the reasons I explain I find for the applicant. I have made orders to quash the decision to refuse the visa and for the Minister to pay the applicant’s costs.

THE LEGISLATIVE FRAMEWORK

4    Pursuant to s 501(1) of the Act the Minister is empowered to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the “character test”. The Minister relied on s 501(6)(d)(v) as the basis for his decision in that regard. It provides:

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

…

(d)    in the event the person were allowed to enter or remain in Australia, there is a risk that the person would:

…

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way;

5    Where a decision is made under s 501(1) to refuse to grant a visa the Act requires the Minister to give the person a written notice that sets out the reasons for the decision: see s 501G(e). The reasons must “set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”: see Acts Interpretation Act 1901 (Cth) s 25D.

6    Where a refusal decision is made by the Minister personally, rather than by a delegate of the Minister, the decision is not reviewable by the Administrative Appeals Tribunal under Part 5 or Part 7 of the Act: s 500(4)(b) and s 500(1)(b). The visa applicant has no right to a hearing in relation to the application and no recourse to a review on the merits of a decision to refuse the visa.

7    A decision to refuse a visa is subject to review by this Court (s 476A(1)(c)) but, as a privative clause decision or a purported privative clause decision, it is reviewable only on the basis of jurisdictional error: Plaintiff s 157/2002 v The Commonwealth (2003) 211 CLR 476.

8    Other provisions of the Act concern the requirements of natural justice when the Minister is considering refusing a visa. Sections 54, 55 and 57 are relevant and I set out those provisions when dealing with the respective grounds.

THE FACTUAL CONTEXT

9    The factual background is uncontroversial. The Applicant is a 32 year old stateless man of Rohingyan ethnicity who was born in Myanmar. His father was taken away by the military and killed in 1988. In 1989, when he was four years old, his mother took him and his younger sister and fled to Thailand where they subsisted illegally. It was difficult for them to survive in Thailand and his mother took the family to Malaysia in 1995 where they lived illegally until 2001. While in Malaysia his mother met and married an Indonesian citizen who was also living illegally in Malaysia. In 2001 his mother decided to go to Indonesia with her husband and the applicant’s younger sister, leaving the applicant behind. The applicant was devastated by this and has not seen his mother or sister again.

10    The applicant remained in Malaysia until 2007 when the Malaysian government made several announcements threatening to return all illegal immigrants to their country of origin. The applicant had no identity documents and feared he would be forcibly returned to Myanmar. Accordingly he left Malaysia and illegally re-entered Thailand once again. In 2009 the applicant was able to obtain a temporary work permit in Thailand, which expired each year. In 2011 the duration of his work permit was reduced to seven or eight months and when he tried to renew his work permit he was informed that he would need to produce a passport to do so. He again feared that he would be forcibly returned to Myanmar, and he fled Thailand in December 2011.

11    In April 2012 the applicant arrived by boat at Christmas Island, having journeyed there from Indonesia. He was placed in immigration detention as an unauthorised maritime arrival.

12    The applicant was screened by the Department of Immigration and Citizenship (as it was then named) (the Department) which concluded on a prima facie basis that the applicant was a refugee within the meaning of the Act. On 22 August 2012 the applicant applied for a protection visa.

13    On 13 September 2012 a delegate of the Minister granted the applicant a Bridging Visa (BVE) (bridging visa) which permitted him to live in the community.

14    On 13 May 2013 a delegate of the Minister accepted the applicant was stateless and a refugee within the meaning of s 36(2) of the Act. His application for a protection visa was remitted to the Department for assessment of the remaining criteria for a grant of a protection visa.

15    On 6 February 2014 a delegate of the Minister refused to grant the applicant a protection visa on a ground that is not presently relevant. On 31 July 2014 the Refugee Review Tribunal set aside that decision.

16    It is a matter of real concern that from 31 July 2014 until October 2016 the applicant’s visa application remained undetermined and from 10 October 2014 the applicant has been in immigration detention.

The 7 October 2014 incident

17    On 7 October 2014, at a time when the applicant was frustrated and angry about the delay in his application for a visa, the applicant is alleged to have made some threats which are significant to the position he now finds himself in.

18    At the time the applicant was living in the community on a bridging visa, and he had a fortnightly interview with his case officer at the Adult Migration Education Service office in Dandenong. As the case officer reported, at the fortnightly interview on 7 October 2014 the applicant said that he was experiencing financial hardship and that he was frustrated that it was taking so long to assess the balance of his visa application, especially when some friends who came to Australia in the same boat as him had already been granted a protection visa. The applicant became angry and said in English “I hate Australians and I want to join ISIS the Islamic State group and kill Australians.” He added that “if I see Tony Abbott somewhere I will kill him”.

19    The case officer told the applicant that his comments were very serious and could constitute a breach of a code of conduct he had signed. The applicant responded “I don’t care, nothing is important for me anymore”.

20    The case officer reported the incident to the Department. In passing I note that the applicant’s submissions assert that the case officer described the applicant’s alleged conduct as “out of character”.

The dispute surrounding the applicant’s bridging visa

21    On 10 October 2014 the applicant was interviewed by a delegate of the Minister in relation to the 7 October 2014 incident. On that day the delegate cancelled the applicant’s bridging visa under s 116(1) of the Act on the basis that the applicant’s presence in Australia is or would be a risk to the health, safety or good order of the Australian community. The decision states that the applicant initially admitted via an interpreter that he made threats, although not the threat against the Prime Minister, but that he had said those things out of frustration with the visa application process and that he was not serious. After the interpreter left the applicant changed his statement and said that the interpreter did not interpret correctly, and he denied making any threats against Australia and denied saying that he wanted to join a terrorist group.

22    The applicant was taken into immigration detention where he has remained ever since. A series of administrative decisions and applications for judicial review followed. They are not relevant to the present proceeding, but they help to explain why the applicant has remained in immigration detention:

(a)    on 14 October 2014 the applicant applied to the Migration Review Tribunal for review of the delegate’s decision to cancel his bridging visa. On 31 October 2014 the Tribunal affirmed that decision. The applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court (FCC), which ordered the decision be set aside and remitted the matter to the Tribunal;

(b)    on 11 March 2015 the Migration Review Tribunal, differently constituted, affirmed the delegate’s decision to cancel the bridging visa. The applicant again sought judicial review of the Tribunal’s decision in the FCC. Again, the FCC ordered the decision be set aside and remitted the matter to the Tribunal;

(c)    on 24 August 2015 the Migration Review Tribunal affirmed the delegate’s decision to cancel the bridging visa, for a third time. The applicant again sought judicial review of the Tribunal’s decision in the FCC. For a third time the FCC ordered the decision be set aside and remitted the matter to the Tribunal; and

(d)    on 12 December 2016 the Administrative Appeals Tribunal set aside the delegate’s decision to cancel the bridging visa.

Notwithstanding that the decision to cancel the applicant’s bridging visa was set aside on four occasions the applicant has remained in detention.

The process leading up to the visa refusal decision

The notice of intention to consider visa refusal

23    On 10 August 2016 the Department sent a letter headed “Notice of intention to consider refusal of your visa application under s 501(1) of the Migration Act 1958” (the Notice) to the applicant’s solicitors, Victoria Legal Aid. The Notice informed the applicant that consideration was to be given to whether his application for a protection visa should be refused on character grounds. It said that the Department held information which suggested that the applicant may not pass the character test by virtue of ss 501(6)(d)(i) and (ii).

24    A suite of documents were attached to the Notice, including:

(a)    the case officer’s report of the 7 October 2014 incident; and

(b)    a spreadsheet titled “Client Incident Report” which listed in summary form various alleged incidents involving the applicant while in immigration detention on dates from 12 June 2012 until 30 July 2016 (the Client Incident Report). The incidents included allegations that the applicant had exhibited abusive and aggressive behaviour towards detention officers, had missed meals, had threatened self-harm and, in one incident, was found in possession of a concealed knife.

25    The Notice invited the applicant to comment or provide information.

The applicant’s submissions

26    On 11 August 2016 the applicant’s solicitors wrote to the Department and made submissions (the applicant’s submissions) which included submissions to the effect that the Minister should determine that the applicant passes the character test.

27    At that date the Notice only identified ss 501(6)(d)(i) and (ii) as grounds for possible refusal of the visa, which concern any risk that the visa applicant will engage in criminal conduct in Australia or harass, molest, intimidate or stalk another person in Australia. The applicant’s submissions contended that the decision-maker could not be satisfied on a reasonable basis that the applicant failed the character test on those grounds.

28    The applicant’s submissions:

(a)    addressed the context in which the 7 October 2014 incident occurred;

(b)    addressed the incidents classified as “major” in the Client Incident Report, endeavouring to put those incidents in context;

(c)    drew attention to the fact that the applicant was referred to and interviewed by the Australian Federal Police (AFP) immediately after the 7 October 2014 incident and the AFP had decided not to take the matter further; and

(d)    drew attention to the fact that on 3 June 2016 ASIO advised the Department that the applicant “is not assessed by ASIO to be directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979” (the ASIO Act). The applicant submitted that this assessment was made after an “extensive investigation” which supported a finding that the “applicant does not pose a security threat, or any other substantive threat within the framework of their enquiry”.

29    On 5 September 2016 the Department wrote to the applicant’s solicitors and referred to two further documents which may be taken into account in the Minister’s consideration, namely:

(a)    a National Police Certificate which showed that there were no disclosable court actions regarding the applicant; and

(b)    an order of the Dandenong Magistrates Court made 12 March 2015 which recorded that the applicant had been convicted on one count of dangerous driving and had his license suspended for six months.

30    On 15 September 2016 the Department sent a letter to the applicant’s solicitors headed “Further information regarding possible visa refusal under s 501(1) of the Migration Act 1958” (the Further Notice). The Further Notice stated that s 501(6)(d)(v) was also deemed relevant in considering whether the applicant passed the character test. That provision concerns a different risk to that in ss 501(6)(d)(i) and (ii), namely a risk that the applicant “would represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way”.

31    The Further Notice referred to “updated information” which the Minister may take into account being an updated Client Incident Report generated on 14 September 2016 (the Updated Client Incident Report) which contained one further alleged incident, dated 18 August 2016, classified as “minor”.

The request for particulars

32    On 19 September 2016 the applicant’s solicitors wrote to the Department and sought particulars as to “what danger the applicant is said to present, to whom, and what evidence is being relied on to support the potential risk”, to show how the applicant is said to satisfy the requirements of the new ground for possible visa refusal under s 501(6)(d)(v).

33    On 20 September 2016 the Department responded and stated that the 15 September 2016 letter contained additional information not previously provided to the applicant, but that “there are no other particulars or information that we have not already presented to your office, to address [the applicant’s] liability under subparagraph s 501(6)(d)(v)”. The request for particulars and the Department’s response are significant in Ground 2 of the proceeding.

The applicant’s further submissions

34    The applicant’s solicitor responded to the Department’s 20 September 2016 letter later the same day and made further submissions (the applicant’s further submissions). The further submissions:

(a)    again addressed the 7 October 2014 incident, and submitted that the applicant was extremely vulnerable and frustrated at the time and that his case manager considered that the applicant was acting out of character;

(b)    again noted that the applicant was referred to the AFP and ASIO who conducted investigations into the 7 October 2014 incident. The submissions noted that the applicant was not charged with any criminal offence by the AFP and was not assessed by ASIO to be either directly or indirectly a risk to security. The submissions said that the applicant had not repeated such comments or behaviour in almost 2 years, and there was no pattern of behaviour which, on a reasonable assessment, could be said to support a conclusion that the applicant held or advocated extremist views; and

(c)    noted that the Updated Client Incident Report only contained one additional incident, classified in the report as “minor”, in which the applicant allegedly abused a detention officer. The submissions noted that there was no context provided in relation to that alleged incident.

35    On an unidentified date in late September or early October 2016 the Department provided the Minister with a document headed “Issues for consideration of possible visa refusal under subsection 501(1) of the Migration Act 1958” (the Issues Paper). It attached all documents the Department considered to be relevant to the Minister’s consideration of whether to grant or refuse the visa, including the applicant’s submissions and further submissions.

THE MINISTER’S DECISION

36    On 13 October 2016 the Department sent the applicant’s solicitors a letter which informed the applicant that the Minister had decided to refuse to grant him a visa under s 501(1), doing so on the basis that the Minister was not satisfied that he passed the character test by virtue of s 501(6)(d)(v) (the refusal decision). The letter attached the Minister’s reasons for decision (the Minister’s reasons) and a copy of every document relevant to the making of the decision (except for any non-disclosable information).

37    The Minister’s reasons state that the Minister considered “all evidence before [him] provided by, on behalf of, or in relation to” the applicant, and that the Minister has:

…taken into account the submissions from [the applicant’s] representatives, who state that the applicant cannot be reasonably found to fail the character test on account of his conduct as outlined above, with reference to s 501(6)(d)(v).

38    In relation to the character test, the Minister’s reasons state (at paragraphs 10 to 12):

However, in considering the nature of the threats made by [the applicant] in October 2014, I take the view that making a threat to join ISIS and kill Australians, as well as specifically threatening to kill the former Australian Prime Minister is very serious conduct; especially when threats to kill are made in reference to joining a fundamentalist group that is known for making and carrying out such threats, and implementing acts of real violence against ordinary members of the Australian community. I find [the applicant] has engaged or threatens to engage in conduct likely to be incompatible with the orderly and peaceful operation of Australian society.

I am also of the view that the number of incidents involving [the applicant] exhibiting abusive and aggressive behaviours towards detention officers and being found in possession of a concealed knife are of serious concern. I find that [the applicant’s] behaviour in immigration detention, such as carrying a concealed knife, in addition to his willingness to make grave threats of harm, indicate [the applicant] may repeat such behaviour and threats in the community. I consider his behaviour to be disruptive to, or in violence threatening harm to, the Australian community or a segment of that community.

On the basis of this information, I reasonably suspect that [the applicant] does not pass the character test by virtue of s 501(6)(d)(v) of the Migration Act in that, in the event that he were allowed to remain in the Australian community, there is a risk that he would “represent a danger to the Australian community or to a segment of that community, whether by way [sic] being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way”. I find that [the applicant] represents an ongoing danger to the Australian community or to a segment of the community. As a result of his conduct I find that he does not pass the character test (as defined by section 501 of the Migration Act) within the meaning of s 501(6)(d)(v) of the Migration Act.

39    The Minister then considered whether to exercise the discretion to refuse the applicant’s visa application. First he did so under the heading “Criminal conduct” and accepted that the applicant had only one conviction, for a traffic violation, with no other convictions or recorded offences in Australia. Then, under the heading “Risk to the Australian Community” the Minister’s reasons state (at paragraphs 18 to 20 and 25 to 27):

18    I have taken into account that the available information indicates that [the applicant’s] threats were made in an apparently isolated incident in October 2014 and occurred in the context of expressing his frustration over visa processing times.

19    However, as stated above, in considering the nature and seriousness of the threats made by [the applicant] in October 2014, I take the view that making a threat to join ISIS and kill Australians, as well as specifically threatening to kill the then Australian Prime Minister, is serious. I am of the view that there ought to be little tolerance afforded to threats of such a nature to be made by non-citizens against the Australian community.

20    I further note [the applicant] has a significant number of incidents recorded while in immigration detention; including contraband found, aggressive or abusive behaviour, assaults, and self-harm, both actual and threatened, as well as being found in possession of a concealed knife. While I am cognisant that these incidents amount to alleged and unproven behaviour, I have nevertheless given them some weight, particularly where they relate to alleged assaults and threats made against detention centre staff and other detainees, because such behaviour is consistent with [the applicant’s] conduct prior to his detention and causes me concern.

…

25    [The applicant] has been prepared to make grave threats of harm whilst in the community, and has demonstrated a capacity for violence and aggressive behaviour towards officers in detention, which I note is a supervised and controlled environment. I find that [the applicant’s] willingness to resort to such conduct could induce him to repeat those threats and behaviours in the community, for example if he again finds himself frustrated or dissatisfied with public and community services. Accordingly I conclude that there is an ongoing risk of him repeating such conduct. Should [the applicant] continue his behaviour he will represent a danger to the Australian community or likely provoke violence or other harm.

26.    While [the applicant] has not physically harmed anyone in Australia to date, his history of making threats, including against the former Prime Minister, the multiple incidents in detention, especially being found carrying a knife, and concerns relating to his mental health, lead me to conclude that [the applicant] poses a risk to the Australia [sic] community.

27.    Even if the risk is considered low, the harm that could result to the Australian community if [the applicant] acted on his threats is significant. Such action would involve violence and could result in injury or loss of life to members of the Australian community. Furthermore, the Australian community would be at risk of heightened fear and alarm, given the nature of such threats in the current global environment. I find that the harm that could result is so serious that any risk of it occurring in the future is unacceptable.

THE APPLICATION FOR JUDICIAL REVIEW

Ground 1: The Alleged Failure to Consider Relevant Considerations

40    Ground 1 of the application alleges:

The Minister’s finding, at paragraphs 12 and 25-27, that the Applicant poses a risk to the Australian community, is vitiated by jurisdictional error constituted by failing to consider relevant considerations, namely:

1.1.    that the Australian Security Intelligence Organisations (ASIO) had issued a clean security clearance for the Applicant; and

1.2.    the context in which incidents recorded in Client Incident Reports, on which the Minister relied, had occurred.

The relevant legislative provisions and principles

41    Whether the Minister is bound to take account of a particular consideration when exercising the power to refuse to grant a visa under s 501 depends on the express obligations imposed by the Act, or in the absence of an express obligation, on the subject matter, scope and purpose of the Act: Minister for Aboriginal affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 39-40 (Mason J).

42    Part 2, Division 3, Subdivision AB of the Act sets out an exhaustive statement of the requirements of natural justice that apply when a decision-maker is considering whether to grant or refuse to grant a visa: s 51A. Sections 54, 55 and 56 relevantly provide that:

(a)    the Minister “must…have regard to all of the information in the application” including any “additional relevant information” subsequently provided by the applicant prior to the relevant decision under s 55(1): s 54(1);

(b)    information is in an application for the purposes of s 54(1) if it is set out in the application or in an attached document (ss 54(2)(a) and (b)) and/or if it is “additional relevant information” provided under s 55 (s 54(2)(c)); and

(c)    the Minister may get any information that the Minister considers relevant. If the Minister gets such information, the Minister must have regard to it in making the visa decision: s 56(1).

43    Section 54(1) means that it is mandatory for the Minister to “have regard to” the information that the applicant provides to the Minister through his submissions and further submissions. Compliance with the obligation under s 54(1) is a jurisdictional requirement: Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; [2001] FCA 389 (Singh) at [53] (Sackville J).

44    It is uncontentious that the applicant’s submissions and further submissions raised the two considerations alleged under Ground 1, namely:

(a)    that ASIO had assessed the applicant not to be directly or indirectly a security risk; and

(b)    the context surrounding the alleged incidents involving the applicant in immigration detention.

45    The Minister was accordingly required to “have regard to” those matters. This required the Minister to engage in a real process of consideration of the information submitted, that is, an “active intellectual process directed at the information”: Tickner v Chapman (1995) 57 FCR 451; [1995] FCA 1726 (Tickner) at 462 (Black CJ); Singh at [59]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [46] (Hill, Madgwick and Conti JJ). The extent of the active intellectual process depends on the nature and relevance of the information: Singh at [59]; Tickner at 462-463. It is not enough for the Minister merely to be aware of the information, and the duty under s 54(1) will not have been discharged where no realistic regard is had to the information: A v Pelekanakis (1999) 91 FCR 70; [1999] FCA 236 at [50] (Weinberg J); Singh at [59].

46    Whether the Minister failed to have regard to the considerations alleged is a question of fact, and the applicant bears the onus of establishing the failure on the balance of probabilities: Singh at [60]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 (SZGUR) at [67], [91]-[92] (Gummow, Heydon and Crennan JJ).

47    The evidence before the Minister must be considered as a whole. The Minister’s reasons should not be reviewed “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Singh at [65].

48    The fact that a decision makes no, or only a passing, reference to a relevant consideration does not necessarily mean that the decision-maker did not consider the matter at all. The Minister may give little or no weight to a relevant matter after having considered it, and this may explain a lack of reference to the matter rather than a failure of consideration: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (ARG15) at [65] (Griffiths, Perry and Bromwich JJ) citing SZGUR at [31] and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (SZSRS) at [34] (Katzmann, Griffiths and Wigney JJ). However, as the Full Court said in SZSRS at [34]:

…where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight.

See also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [52] (Kenny, Griffiths and Mortimer JJ).

A:    Did the Minister have regard to the ASIO security clearance

49    The Minister’s reasons make no express reference to the fact that ASIO had completed a security assessment in relation to the applicant and did not assess him to be either directly or indirectly a risk to security under s 4 of the ASIO Act. The Minister contends however that the Court should not be satisfied that he failed to have regard to that consideration.

50    First, the Minister argues that the ASIO security clearance was squarely raised in the applicant’s submissions and further submissions, which were before the Minister, and the Court must view the evidence as a whole. The Minister’s reasons expressly state that the Minister considered all evidence put forward by the applicant and that the relevant parts of the applicant’s submissions were specifically mentioned in the Issues Paper. The Minister argues that there is nothing about the size and complexity of the material which makes it improbable that he considered the material as he said he did.

51    Second, the Minister’s reasons state:

I have taken into account the submissions from [the applicant’s] representatives, who state that [the applicant] cannot be reasonably found to fail the character test on account of his conduct as outlined above…

The Minister contends that the Court should approach the matter on the basis that he took the submissions into account as he said he had. The Minister submits that the reference to the “conduct as outlined” is more than just a general reference to his taking into account all the material before him. He contends that, understood in context, it includes a reference to his having taken into account the applicant’s submissions that, notwithstanding the applicant’s conduct in the 7 October 2014 incident, ASIO had assessed that the applicant was not a risk to security.

52    Third, the Minister’s reasons state that “[t]he available information indicates that [the applicant] is not of interest to Australian law enforcement authorities”. The Minister argues that, in context, this statement should be understood as a reference to the ASIO security clearance as well as to the AFP decision not to lay charges against the applicant in relation to the 7 October 2014 incident. He contends that this is apparent because the Department’s submissions to the Minister said that the applicant was “not of interest to Australian law enforcement authorities on account of the threats he made in October 2014”, and quoted a part of the applicant’s submissions where the applicant was discussing that incident and referred to both the AFP and to ASIO.

53    The Minister also submits that, as a matter of ordinary usage, there is no difficulty in referring to ASIO as a “law enforcement agency” and notes a Parliamentary debate and a Parliamentary inquiry in which that phrase was used in respect to ASIO.

54    Fourth, the Minister argues that there was no requirement for him to refer to the ASIO security clearance because that matter was not material to his decision to refuse the visa and of insufficient importance to be included in the reasons for decision. The Minister contends that the definition of security in s 4 of the ASIO Act is more limited in scope than s 501(6)(d)(v) and that ASIO’s assessment that the applicant is not directly or indirectly a security risk within the meaning of s 4 of the ASIO Act was of limited significance to the decision that the applicant did not pass the character test. The Minister argues that while both the Minister and ASIO were required to consider the seriousness of any threat to the Australian community or some segment of it, his visa refusal decision was concerned with matters beyond the scope of the security clearance assessment.

55    As I now explain, I consider the Minister failed to have regard to the fact that ASIO assessed the applicant not to be either directly or indirectly a risk to security, as required by s 54(1) of the Act, which constitutes jurisdictional error.

56    I commence by noting that I accept the Minister’s contention that the relevant considerations for the Minister under s 501(6)(d)(v) are broader than ASIO’s considerations in assessing whether the applicant represents a risk to security. However, both involve an assessment of the risk that the applicant may represent a danger to the Australian community and the ASIO security clearance was relevant to the issues before the Minister.

57    On a fair reading, I do not consider the statement in the Minister’s reasons that the applicant “is not of interest to Australian law enforcement authorities” is a reference to the ASIO security clearance. ASIO’s broad functions under s 17 of the ASIO Act are intelligence gathering and national security rather than law enforcement. It is not ASIO’s function to carry out or enforce measures for security within a Commonwealth authority and it is not properly described as a law enforcement authority. I take the Minister to have understood that. I consider the Minister was referring to the AFP decision not to lay charges in relation to the 7 October 2014 incident and to the fact that the applicant’s only conviction is a traffic violation, not to the ASIO security clearance. Nor do I consider that a statement that the applicant is “not of interest to Australian law enforcement authorities” can be equated with a statement that the applicant is not assessed by ASIO to be directly or indirectly a risk to security within the meaning of s 4 of the ASIO Act. They are not the same.

58    ASIO’s functions under s 17 of the ASIO Act include obtaining and evaluating intelligence relevant to security and advising Ministers and Commonwealth authorities in respect of matters of security relevant to their functions and responsibilities. Section 4 of the ASIO Act defines “security” to include protecting the Australian community from “politically motivated violence” and the “promotion of communal violence”. Politically motivated violence is precisely the type of violence which the applicant allegedly threatened on 7 October 2014.

59    Part IV of the ASIO Act is concerned with “security assessments” which are defined to mean a written recommendation from ASIO to a government agency on whether the requirements of security may warrant “prescribed administrative action” being taken in respect to a person: see s 35(1). In assessing that the applicant was not directly or indirectly a risk to security, ASIO must have assessed the degree of risk that the applicant posed to the Australian community through politically motivated violence. ASIO had power to recommend that prescribed administrative action be taken in respect to the applicant if it considered the applicant was a risk to security, and it did not recommend any such action. I have little doubt that, had ASIO assessed that there was any risk that the applicant might follow through or attempt to follow through on the threats he allegedly made, it would not have made the assessment that the applicant was not a risk to security.

60    The applicant’s submissions to the Department state:

The only inference to be drawn from the ASIO clearance, coming after what could only be described as extensive investigation, is that the applicant does not pose a security threat, or any other substantive threat within the framework of their inquiry. The ASIO clearance is, I submit a relevant consideration in an assessment of future risk.

61    The applicant’s further submissions state:

In my view, it is highly relevant, that ASIO, a specialised agency whose main role is to gather information and produce intelligence that will enable it to warn the government about activities or situations that might endanger Australia’s national security, do not consider that the applicant represents a risk of danger to the Australian community…

In the case of the applicant in this matter, ASIO undertook an eighteen-month investigation into the applicant, and any security risk which he may present to the Australian community. ASIO’s investigation would have, no doubt, involved a consideration as to whether the alleged threats made by the applicant on 7 October 2016, had any substance and whether the applicant genuinely held any extremist views which would constitute a danger to the Australian community.

The Issues Paper quoted the relevant passage of the applicant’s submissions and attached both those and the applicant’s further submissions.

62    It is plain from the Minister’s reasons that the threats the applicant allegedly made on 7 October 2014 were significant to his decision to refuse the visa. The question for the Minister was whether there is a risk that the applicant would “represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way”: s 501(6)(d)(v). That ASIO had assessed that the applicant was not directly or indirectly a risk to security points away from a conclusion that there is a risk that the applicant would represent a danger to the Australian community through violence threatening harm.

63    The applicant’s submissions and further submissions put the fact of the ASIO security clearance as “highly relevant” to the Minister’s consideration. In my view, having regard to the significance of the 7 October 2014 incident to the Minister’s consideration, the fact that ASIO had assessed the applicant not to be directly or indirectly a security risk was plainly relevant. The Minister made findings that “there is a risk that [the applicant] would represent a danger to the Australian community” and that the applicant “represents an ongoing danger to the Australian community”, yet the Minister did not refer to the ASIO security clearance at all and his reasons do not reveal that he gave that matter any consideration.

64    I do not consider the Minister’s failure to refer to the ASIO security clearance can sensibly be understood as a matter the Minister considered but did not mention because it was not material. In my view the ASIO security clearance is sufficiently central to the issue before the Minister that his failure to refer to it provides a proper basis to infer that he did not consider it at all or failed to engage in the required active intellectual process, as required by s 54(1): see ARG15 at [65]-[66].

65    It is not the Court’s role to substitute its assessment of whether there is a risk the applicant would represent a danger to the Australian community for that of the Minister, and I have not done so. The weight the ASIO security assessment ought to carry in the Minster’s decision is a matter for the Minister. The Minister is, however, required to accord the applicant natural justice pursuant to Part 2, Division 3, Subdivision AB of the Act and must have regard to the information the applicant provides, even if only to discount its significance or give it little weight. I am satisfied on the balance of probabilities that the Minister failed to do so.

B:    Did that Minister have regard to the context surrounding the incidents in immigration detention

66    The Minister’s reasons make no express reference to the applicant’s submissions as to the context surrounding the alleged incidents involving the applicant in immigration detention.

67    The Minister contends however that he did not fail to have regard to those submissions.

68    First, the Minister argues that the context surrounding the incidents was squarely raised in the applicant’s submissions and further submissions which were before him, and the Issues Paper summarised the submissions and quoted a part of them. The Minister’s reasons expressly state that he considered the applicant’s submissions, and he argues that there is nothing improbable about him having read them.

69    Second, the Minister’s reasons state that he took into account the applicant’s submissions that the applicant “cannot be reasonably found to fail the character test on account of his conduct as outlined above”. He argues that this should be read as including a reference to the context surrounding the incidents in immigration detention. The Minister’s reasons also note that the incidents in detention are alleged and unproven, which is a point made in the applicant’s submissions and which the Minister contends shows that he considered those submissions.

70    The Minister says that the Court should not be satisfied on the balance of probabilities that the absence of an express mention in the reasons of the context surrounding the alleged incidents is properly understood as a failure to have regard to that context. Instead, the Minister contends that when the Court considers the whole of the evidence, which included the applicant’s submissions and further submissions, the Minister’s failure to refer to the context to the incidents in detention should be understood as reflecting the Minister’s conclusion that the context was not material to the refusal decision. For example, the Minister submits that the applicant’s submissions as to the incident in which the applicant was found with a concealed knife could in no way have ameliorated his concerns about the applicant’s character arising from the applicant’s abusive and aggressive behaviour towards detention officers, which behaviour was not addressed or contextualised.

71    The Minister’s failure in this regard is not as plain as in relation to the ASIO security clearance but, for the reasons I explain, I am satisfied on the balance of probabilities that the Minister failed to have regard to the applicant’s submissions as to the context surrounding the alleged incidents in detention, as required under s 54(1) of the Act. This constitutes jurisdictional error.

72    The applicant’s submissions to the Minister included two pages dealing solely with the context surrounding the alleged incidents in detention, including that:

(a)    there were at least five incidents that involved harm perpetrated against the applicant by other detainees;

(b)    the applicant was found with a concealed knife on 4 November 2015 in circumstances where he had been assaulted by other detainees the day before by being struck and kicked in the back of the head, to the extent that he required medical treatment. During that period the detention centre was on high alert because of unrest among detainees, particularly character cancellation detainees, which erupted into “full blown riots” on or about 5 November 2015. During the riots SERCO staff housed the applicant in seclusion for his own protection;

(c)    a number of the alleged incidents of abusive behaviour related to the “pre-planned” use of force by SERCO staff in the course of transferring the applicant between detention centres and in other transfer situations. The applicant found the use of force in those situations demeaning and unnecessary and submitted, in effect, that this provided context to his alleged abusive behaviour; and

(d)    spending two years (at that time) in detention, a large part of which had been in remote locations, had taken its toll on the applicant’s mental health. He has been diagnosed as suffering a major depressive disorder, which his treating doctor noted was probably caused by the length of his detention. The applicant submitted that this also gave context to his alleged abusive behaviour.

73    In relation to the incident involving the concealed knife, the thrust of the applicant’s submissions was that it was just a blunt tipped dinner knife which the applicant carried only for his own protection, in circumstances where his fear for his own safety was justifiable. The applicant submitted that the context surrounding the incident was relevant because it threw a different light on the incident and indicated that it should carry reduced weight in the Minister’s consideration.

74    It is plain from the Minister’s reasons that the incident involving the concealed knife and the incidents of alleged abusive and aggressive behaviour towards detention officers were significant to the Minister’s consideration. The Minister’s reasons state:

I am also of the view that the number of incidents involving [the applicant] exhibiting abusive and aggressive behaviours towards detention officers and being found in possession of a concealed knife are of serious concern. I find that [the applicant’s] behaviour in immigration detention, such as carrying a concealed knife, in addition to his willingness to make grave threats of harm, indicate [the applicant] may repeat such behaviour and threats in the community. I consider his behaviour to be disruptive to, or in violence threating harm to, the Australian community or a segment of that community.

75    In deciding whether to exercise his discretion to refuse to grant the applicant the visa, the Minister’s reasons state:

I further note [the applicant] has a significant number of incidents recorded while in immigration detention; including contraband found, aggressive or abusive behaviour, assaults, and self-harm, both actual and threatened, as well as being found in possession of a concealed knife. While I am cognisant that these incidents amount to alleged and unproved behaviour, I have nevertheless given them some weight, particularly where they relate to alleged assaults and threats made against detention centre staff and other detainees, because such behaviour is consistent with [the applicant’s] conduct prior to his detention and causes me concern.

…

[The applicant] has been prepared to make grave threats of harm whilst in the community, and has demonstrated a capacity for violence and aggressive behaviour towards officers in detention, which I note is a supervised and controlled environment. I find that [the applicant’s] willingness to resort to such conduct could induce him to repeat those threats and behaviours in the community, for example if he again finds himself frustrated or dissatisfied with public and community services. Accordingly I conclude that there is an ongoing risk of him repeating such conduct…

While [the applicant] has not physically harmed anyone in Australia to date, his history of making threats, including against the former Prime Minister, the multiple incidents in detention, especially being found carrying a knife, and concerns relating to his mental health, lead me to conclude that [the applicant] poses a risk to the Australia [sic] community.

76    In my view the significance of those incidents to the Minister’s decision, particularly the incident involving the concealed knife, indicates that the applicant's submissions as to the context in which those incidents occurred were relevant to the Minister’s consideration. Yet the Minister made no reference to those submissions and his reasons do not reveal that he gave any consideration to the context in which the knife incident or the other incidents occurred. I do not consider the Minister’s failure to refer to the applicant’s submissions as to the context of the incidents, particularly the knife incident, can reasonably be understood as matters the Minister considered but did not mention because they were not material. Those submissions were sufficiently central to the Minister's consideration that his failure to refer to them supports an inference that he did not consider them at all, or failed to engage in the required active intellectual process.

77    Again, it is not the Court’s role to substitute its assessment as to whether there is a risk the applicant would represent a danger to the Australian community, and I have not done so. But the Minister is required to accord the applicant natural justice pursuant to the Act. This required the Minister to have regard to the applicant’s submissions as to the context of the incidents, even if only to discount their significance or to give them little weight.

Ground 2: The Alleged Failure to Comply with s 57(2)(b)

78    Ground 2 of the application alleges:

The Minister relied on two “Client Incident Reports” in breach of s 57(2)(b) of the Act, insofar as the Minister failed to “ensure, as far as is reasonably practicable” that the Applicant “understood why” the Client Incident Reports generated 10 August 2016 and 14 September 2016 were relevant to consideration of the Applicant’s application for a visa.

The relevant legislative provisions and principles

79    Section s 57(1)(a)(i) provides:

In this section, relevant information means information (other than non-disclosable information) that the Minister considers… would be the reason, or part of the reason… for refusing to grant a visa.

80    Section 57(2) relevantly provides:

The Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)    invite the applicant to comment on it.

81    The effect of these provisions is that the Minister was required to ensure, as far as is reasonably practicable, that the applicant understood why information (which the Minister considers would be the reason or part of the reason for refusing the visa) is relevant. Compliance with s 57(2)(b) is a jurisdictional requirement.

82    Section 57(2)(b) requires that “the importance of the information and its potential impact upon the applicant’s case for a visa be identified and the information be communicated in a way which promotes that understanding as far as is possible”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 (Saeed) at [20] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). The greater the clarity of the information provided, the less that may be required of the Minister in exposing relevance. Conversely, the more the uncertainty in the information provided the greater may be the need to explain relevance: SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 232 FCR 282; [2009] FCA 486 (SZMTJ) at [52] (Flick J). Of course, in some cases the relevance of the information may be self-evident from the particulars provided: Wang v Minister for Immigration and Citizenship [2007] FCA 488 at [29] (Besanko J).

Application of the principles to the facts

83    The Notice sent to the applicant on 10 August 2016 informed him that consideration would be given to whether he should be refused a protection visa on character grounds. It said that the Department held information which suggested that the applicant may not pass the character test by virtue of ss 501(6)(d)(i) and (ii) and provided the applicant with a raft of material including the Client Incident Report.

84    On 11 August 2016 the applicant’s solicitor responded to the Notice and provided evidence and submissions, doing so on the assumption that the Minister’s concern related to the incidents in the Client Incident Report classified as “major”. Those submissions were addressed to ss 501(6)(d)(i) and (ii), which relate to any risk that the applicant will engage in criminal conduct or harass, molest, intimidate or stalk another person in Australia, because those provisions were the stated basis for possible visa refusal at the time. They were not directed to the requirements of s 501(6)(d)(v) as that provision had not yet been raised, although it can be seen that there is some crossover between the requirements under the provisions.

85    The Further Notice sent to the applicant on 15 September 2016 informed him that s 501(6)(d)(v) was also deemed relevant to the Minister’s consideration, and attached the Updated Client Incident Report which contained just one further incident, classified as “minor”.

86    The Client Incident Report and the Updated Client Incident Report are “relevant information” within the meaning of s 57(1). The Minister was accordingly obliged under s 57(2)(b) to ensure, as far as is reasonably practicable, that the applicant understood why those reports were relevant to the Minister’s consideration.

87    On 19 September 2016 the applicant requested particulars as to “what danger the applicant is said to present, to whom, and what evidence is being relied on to support the potential risk” that the applicant may pose to the Australian community. To some extent, that indicated that the applicant was unsure as to how the information that had been provided to him was relevant to the Minister’s consideration.

88    The Department responded on 20 September 2016 but did not substantively address the request for particulars. Relevantly, the Department said:

The consideration of [the applicant’s] case under s 501 takes into account all the documents and information we have provided, as well as the representations we have received from you in response.

Subparagraph 501(6)(d)(v) was also included to advise you that it may be relevant in the Minister determining if [the applicant] fails the character test. Please note there are no findings at this time, and the submission that will be presented to the Minister, as the decision maker, will also leave it open to him to find that [the applicant] does not fail the character test. The department has not formed a preliminary view that refusal under that ground is open to the Minister.

Accordingly, at this time, there are no other particulars or information that we have not already presented to your office, to address [the applicant’s] liability under subparagraph s 501(6)(d)(v).

It remains open to you to provide further comment on subparagraph s 501(6)(d)(v), or any other matter you find relevant to [the applicant].

89    The applicant’s solicitors responded the same day, noting that the Notice had been amended to include s 501(6)(d)(v) as a new consideration, and said:

We note that on 19 September 2016 we requested particulars to how it is said that the applicant meets the new consideration which was introduced at such a late stage, but no further particulars were provided.

The applicant’s solicitors also said

The correspondence dated 15 September 2016 contained an updated “Client Incident Report” which contained one additional “minor incident”, whereby the applicant was allegedly abusive to the officer. We note that there is no context given to the allegation, and we do not have instructions about this incident”.

That letter again indicated that the applicant was uncertain, at least to an extent, as to why the Client Incident Report and Updated Client Incident Report were relevant.

90    The Minister contends that the explanations given on 15 September and 20 September 2016 are sufficient to discharge his obligations under s 57(2)(b). He argues that those letters informed the applicant that the Client Incident Reports indicated a concern that, if the applicant was allowed to remain in Australia, there was a risk that he would represent a danger to the Australian community or to a segment of that community.

91    What must be provided to satisfy the requirements of s 57(2)(b) depends upon a range of things including the nature of the information provided to the visa applicant and, in the present case, the specifications of s 501(6)(d)(v).

92    The Minister argues that the relevance of each incident in the Client Incident Reports was clear when considered in light of the character assessment criteria in s 501(6)(d)(v) and that the nature of each incident, including possession of a concealed knife and aggressive and abusive behaviour directed towards detention officers, meant that no further explanation was required. For example, the Minister contends that the 7 October 2014 incident required no further explanation as it was self-evidently relevant to the character assessment. The Minister also contends that the incidents which recorded pre-planned uses of force through the use of mechanical restraints on the applicant to facilitate high-risk escorts were self-evidently not relevant. He submits that it was made “tolerably clear” to the applicant which incidents were relevant to s 501(6)(d)(v) and which were not. In this regard the Minister argues that the applicant’s submissions and further submissions addressed all the matters that the Minister took into consideration, which is evidence that the relevance of the information was obvious from the information provided.

93    The Minister argues that he is not required to provide the level of detailed information which the applicant contends. He relies on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (SZBYR) at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) where their Honours said that the Refugee Review Tribunal was not required to provide a visa applicant with details of its disbelief of the appellant’s evidence and cited, with approval, VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123 (VAF) at [24]. In that case Finn and Stone JJ held that the “information” required to be provided to the applicant:

…does not encompass the Tribunal’s subjective appraisals, thought processes or determinations… nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.

94    The Minister’s contentions are not without force, but I am satisfied on the balance of probabilities that the Minister failed to comply with his obligation under s 57(2)(b). That failure constitutes jurisdictional error.

95    In Saeed at [20], their Honours said:

The requirements of s 57(1)(a) and (2)(b) are similar to those referred to by Mason J. When the Minister considers that certain information would be the reason, or part of the reason, for refusing to grant a visa, the Minister is to provide particulars of it in order that the visa applicant understands its relevance. The requirement in s 57(2)(b), that the Minister ensure, as far as reasonably practicable, that the visa applicant understands why certain information is relevant, may go further. It would require that the importance of the information and its potential impact upon the applicant’s case for a visa be identified and the information be communicated in a way which promotes that understanding as far as is possible.

96    In SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 at [36], in discussing the equivalent disclosure obligations of the Refugee Review Tribunal, Rares J said:

It required the tribunal to ensure, as far as reasonably practical, that it identified to the appellant why he should have understood the information was relevant to the review. This is necessary to avoid an applicant for review being left to choose between uncertain inferences that might otherwise be available in the notification.

See also SZMTJ at [44].

97    The Client Incident Reports referred to 46 separate incidents classified as either “minor” or “major”. Neither the Notice or Further Notice indicated to the applicant which of the 46 incidents were most relevant to the Minister’s consideration of his visa application. I accept that it must have been clear to the applicant that the 7 October 2014 incident was relevant, but the Client Incident Reports raised many further alleged incidents, including many that were classified as minor.

98    Contrary to the Minister’s submissions, I do not accept that it was made “tolerably clear” to the applicant which incidents were relevant to the Minister’s consideration under s 501(6)(d)(v) and which were not. The applicant sought particulars of what evidence was being relied on and the Department did not provide a substantive response. Sensibly, the applicant’s submissions were addressed to the “major” incidents, but that indicates how the applicant was made to draw “uncertain inferences”. In fact, the Issues Paper raised some “minor” incidents as relevant to the Minister’s consideration (e.g. some alleged incidents of abusive or aggressive behaviour towards detention officers) and those incidents formed part of the Minister’s reasons for refusal, but it did not raise some other “major” incidents as relevant (e.g. the pre-planned use of force by detention officers) and those incidents were not part of the Minister’s reasons.

99    That the Department was in a position to identify the potential relevance of the incidents is clear from the Issues Paper. It identified the following relevant matters:

(a)    the number of incidents involving the applicant exhibiting abusive and aggressive behaviour towards detention officers and being found in possession of a concealed knife;

(b)    incidents involving the applicant that included contraband found, aggressive or abusive behaviour, assaults, and self-harm (both actual and threatened) as well as being found in possession of a concealed knife; and

(c)    that the alleged assaults and threats made against detention centre staff and other detainees is consistent with the applicant’s conduct prior to his detention.

It informed the Minister that on the basis of those (and various other) matters it was open to the Minister to conclude that the applicant “presents a likelihood of repeating threats of harm”, and that the harm that could result is so serious that any risk of it occurring in the future is unacceptable.

100    The Minister was accordingly in a position to ensure, as far as was reasonably practicable, that the applicant understood why the Client Incident Reports were relevant to the Minister’s consideration. The obligation to do so was not discharged merely by providing the applicant with a list of 46 incidents, some relevant and some not, including some “major” incidents which were not relevant and some “minor” incidents which were, and presuming the applicant would deduce which were most relevant to the pending decision by reference to the parameters of s 501(6)(d)(v). This is particularly so when the applicant requested relevant particulars and was not provided them. The Minister’s obligation can reasonably be understood to extend to identifying which of the 46 incidents were of most relevance and why, such that the applicant’s solicitors could have concentrated their energies on making submissions relevant to those matters.

101    The Minister was obliged to ensure that the importance of the information and its potential impact upon the applicant’s visa application be identified and the information communicated in a way which promoted that understanding as far as is possible: Saeed at [20]. By the Department providing the Client Incident Reports in the form it did and without identifying which of the 46 incidents were relevant and why, the Minister fell short of his obligation under s 57(2)(b). I do not accept that requiring the provision of information at that level is contrary to the decisions in SZBYR or VAF.

102    The Minister further contends that the applicant did not explain what the identification of the relevant incidents in the Client Incident Reports would or could have elicited by way of further submissions by the applicant, or how the applicant was prejudiced by the alleged breach. Essentially, the Minister contended that the Court should not be satisfied that the alleged breach would have made a difference to the submissions advanced.

103    It is established that an applicant should not be denied relief on the basis that the error was insignificant if he or she has been deprived of the possibility of a successful outcome by the decision-maker’s failure to observe the requirements of the Act: Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 at [64] (Sackville J). The applicant contends that he has been deprived the possibility of a successful outcome because, if he had been informed by the Minister that his alleged abusive and aggressive behaviour in detention was of particular relevance, he could have filed a psychiatric report to explain his behaviour as a manifestation of a significant mental illness (related to his ongoing detention). I accept that this may have meant that the Minister gave less weight to those incidents and I do not accept the Minister’s contention in this regard.

COSTS

104    I am aware of no reason why costs should not follow the event and I have made orders for the Minister to pay the applicant’s costs. In the event either party contends that there is a proper basis for a different costs order, I grant liberty to apply within seven days to set aside that order and direct the parties to file short submissions on costs (no more than three pages).

Associate:

Dated:    11 September 2017