FEDERAL COURT OF AUSTRALIA

Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Assistant Minister made on 11 July 2017 is set aside.

2.    The matter is remitted to the Assistant Minister for redetermination in accordance with law.

3.    Subject to order 4, the Assistant Minister is to pay the costs of the Applicant, including the costs thrown away by the adjournment granted on 23 November 2017.

4.    The costs to be paid by the Assistant Minister are to be paid pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth) directly to the pro bono lawyers who appeared for the Applicant.

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

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding, Mr Lagi Tamaso Buadromo, is a citizen of the Republic of Fiji.

2    Mr Buadromo normally resided in Australia after February 1996, when he was 25 years old. On 4 December 2014 he was granted a Class BB Subclass 155 Five Year Resident Return visa.

3    On 11 August 2016 he was convicted of common assault, assault involving an act of indecency and contravening an Apprehended Violence Order. He was sentenced to a 12 month term of imprisonment.

4    On 4 November 2016, Mr Buadromo was advised by the Department of Immigration and Border Protection that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“Migration Act”). That letter further advised Mr Buadromo that “you have an opportunity to make representations about revoking the decision to cancel your visa”. A response to that invitation was provided by Mr Buadromo on 15 November 2016.

5    Mr Buadromo was taken into immigration detention on 28 November 2016 when he was released from criminal custody. He has remained in immigration detention ever since. At present he is being detained at the Christmas Island Immigration Detention Centre.

6    On 11 July 2017 the Assistant Minister for Immigration and Border Protection (“Assistant Minister”) made a decision pursuant to s 501CA(4) not to revoke the original decision to cancel the resident visa. On 13 July 2017, Mr Buadromo signed a form acknowledging receipt of the notice of the decision not to revoke the visa cancellation and that he had received the other documents pertaining to the decision, which included a copy of the Assistant Minister’s reasons.

7    Mr Buadromo thereafter filed on 10 August 2017 an Originating Application in this Court seeking review of the decision of the Assistant Minister. He there claimed that the Assistant Minister did not give “proper Consideration to my Revocation”. Mr Buadromo there identified the following matters as those in respect to which the Assistant Minister had not given “proper consideration”, namely:

    the National Police Certificate, which he did not dispute;

    the “presumption/opinion” that he would reoffend;

    the risk he posed to society, founded upon “the word of the Lady Parole officer”;

    the prospect of his being able to work in Fiji, the “[m]edication” which it was “presumed” he should have, and the wellbeing of his children;

    the comments of the sentencing Magistrate; and

    the prospect of his committing further “violent against women /sexual against women”.

8    On 11 October 2017, the initial hearing date, Mr Buadromo appeared before this Court by way of a video link from Christmas Island. He was then unrepresented.

9    The Assistant Minister was represented by Counsel. On that occasion concern was expressed as to whether the Assistant Minister could give “proper consideration” to the merits of the claims being made by Mr Buadromo without arguably making findings of fact in respect to a number of those claims. The reasons provided by the Assistant Minister, on one interpretation, merely recounted or “noted” the claims made by Mr Buadromo.

10    Given these concerns, an order was made pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) referring Mr Buadromo for legal assistance and the hearing adjourned. Ms Stern SC and Ms Palmer of Counsel thereafter prepared detailed written submissions and appeared for Mr Buadromo on a pro bono basis. The Court is grateful for the assistance they have provided. The Assistant Minister was represented by Counsel at the adjourned hearings.

11    Leave was granted at the outset of the resumed hearing on 23 November 2017 to amend the Originating Application.

12    On 23 November 2017 an application, however, was also made on behalf of the Assistant Minister to further adjourn the hearing. The intention to make that application had not been previously foreshadowed. But the application was nevertheless granted and costs thrown away by the adjournment were reserved.

13    It is concluded that the decision of the Assistant Minister should be set aside.

SECTION 501 & RELATED PROVISIONS

14    The provisions of the Migration Act which assume primary importance to the present proceeding are ss 501, 501CA and 501G(1).

15    Section 501 of the Migration Act provides in relevant part as follows:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

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

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

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

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

Decision of Minister—natural justice does not apply

(3)    The Minister may:

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

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

if:

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

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

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

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

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

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

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

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

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

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

Character test

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

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

…

Otherwise, the person passes the character test.

Substantial criminal record

(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

…

16    Section 501CA provides in relevant part as follows:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(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.

…

17    Section 501G(1) provides in relevant part as follows:

Refusal or cancellation of visa—notification of decision

(1)    If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:

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

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

(ba)    not revoke a decision to cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

(c)    sets out the decision; and

(d)    specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non-disclosable information) for the decision; and

…

It was common ground that the statutory obligation imposed by s 501G(1)(e) to provide “reasons” carried with it an obligation to also set forth the findings on material questions of fact together with a reference to the evidence upon which such findings were made: Acts Interpretation Act 1901 (Cth) s 25D. See: King v Minister for Immigration and Border Protection [2014] FCA 766 at [36] to [37] per Flick J; Dunn v Minister for Immigration and Border Protection [2016] FCA 489 at [17] per North ACJ.

A FAILURE TO GIVE PROPER CONSIDERATION

18    Following upon the amendments to the Originating Application, the Grounds upon which Mr Buadromo now relies in support of his Amended Originating Application were recast and expressed to be that the Assistant Minister failed to make findings as to matters raised by the Applicant in his representations which exposes:

    a failure to have regard to a relevant consideration;

    a failure to accord procedural fairness;

    a failure to give proper, genuine and realistic consideration to the Applicant’s representations; and/or

    a failure to conduct the task required under the Migration Act.

This reformulation of the Grounds nevertheless proceeded from Mr Buadromo’s contention advanced from the outset that “proper consideration” had not been given to the matters that he had first identified. The reformulated Grounds merely characterised – albeit more helpfully – the arguments sought to be relied upon under more recognisable grounds of review.

19    A number of other Grounds were raised in the Amended Originating Application, but these are unnecessary to resolve.

20    On behalf of the Assistant Minister it was submitted that each of the matters previously relied upon by Mr Buadromo in his initial Originating Application had in fact been considered. Detailed references were provided in the Assistant Minister’s written submissions to those parts of the reasons provided by the Assistant Minister where each of the matters relied upon by Mr Buadromo were referred to and, so the submission ran, that on “a fair reading of the decision that the Assistant Minister did give consideration” to each of the matters identified.

21    It may be accepted that the reasons provided by the Assistant Minister make some reference to each of the matters relied upon by Mr Buadromo as follows:

22    The reasons provided by the Assistant Minister, accordingly, in fact expose reference being made to each of these matters. Indeed, in respect to the consideration given by the Assistant Minister in respect to the wellbeing of Mr Buadromo’s children, the Assistant Minister accepted the submissions made to him by Mr Buadromo. The reasons provided on this issue thus conclude as follows:

[22]    I find that it is in the best interests of the three children that I revoke the original decision to cancel Mr BUADROMO’s visa, to enable them to be parented and emotionally and financially supported by Mr BUADROMO. I take into account that the children may also need to rely on parenting and care by Mr BUADROMO if Ms Turagalailai continues to suffer from post-natal depression.

23    But that which remains open to judicial scrutiny is whether the consideration given by the Assistant Minister to each of the remaining matters relied upon by Mr Buadromo was such consideration as was required by law or whether the Assistant Minister’s reasons expose jurisdictional error.

24    It is, accordingly, necessary to consider the Assistant Minister’s reasons with some degree of care to unravel the manner in which the Assistant Minister proceeded, including identifying such findings of fact as were made and the conclusions reached based upon any such findings.

The need to consider reasons in a fair and balanced manner

25    Care must nevertheless be taken to ensure that the findings and reasons of the Assistant Minister are not construed with an eye attuned to the detection of legal error where none truly exists: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

26    The eyes of a reviewing court should nevertheless “not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case”: Soliman v University of Technology, Sydney [2012] FCAFC 146 at [57], (2012) 207 FCR 277 at 295 to 296 per Marshall, North and Flick JJ. See also: 4nature Inc v Centennial Springvale Pty Ltd [2016] NSWLEC 121 at [150], (2016) 218 LGERA 289 at 333 per Pepper J. Whether the reasons for decision expose a proper consideration of submissions advanced nevertheless forever remains a conclusion to be drawn by reference to the reasons in fact provided: cf. Sevdalis v Director of Professional Services Review [2017] FCAFC 9 at [33] per Tracey, Pagone and Markovic JJ.

27    The use of “stock standard” or “formulaic” reasons, in particular, cannot be invoked by a decision-maker with a view to shielding a reasoning process from scrutiny: Berryman v Minister for Immigration and Border Protection [2015] FCA 616 at [24], (2015) 235 FCR 429 at 437 per Flick J; Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [40] per Allsop CJ, Flick and Griffiths JJ; Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 at [48] per Griffiths J. Recitations, for example, that particular matters have been “noted” or “considered” does not preclude an analysis as to whether such matters have been given such consideration as is required by law.

28    Although a reviewing Court should not unfairly parse and analyse a statement of reasons with a view to determining error where none truly exists, a reviewing Court should equally not be hesitant to grant relief where legal error is exposed.

29    The more so is this the case where, as in the present case, there is a statutory duty to provide reasons: Migration Act s 501G(1)(e).

30    Useful guidance as to the ability to draw inferences from a failure to make express findings of fact in a statement of reasons is to be gleaned from the following observations of French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593 at 604 to 605:

[47]    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

In commenting upon these observations, Griffiths J in Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 said:

[42]    There is one important qualification. It relates to the need for greater caution in drawing inferences from omissions in a statement of reasons which has been voluntarily provided by a decision-maker and not in discharge of a statutory obligation to do so. The High Court’s decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) highlights the importance of paying close regard to the precise terms of a statutory provision, such as s 430(1) of the Migration Act 1958 (Cth), which imposes a statutory obligation on a decision-maker to provide a written statement which sets out various matters and not just the reasons, such as a requirement to set out the findings on any material questions of fact. The precise terms of such a statutory obligation necessarily provide a critical framework in determining, for example, what legal significance should attach to the failure of such a decision-maker to make findings on every matter of fact which is objectively material to its decision. Caution is required in drawing adverse inferences from omissions in a statement of reasons which is volunteered by a decision-maker and absent any immediate legal obligation to do so because there is no detailed legal framework of the kind which operated in cases such as Yusuf and WAEE (and see also s 25D of the Acts Interpretation Act 1901 (Cth)).

Reasons and findings were, of course, required to be provided in the present case.

31    The degree of care with which a statement of reasons may be scrutinised depends in large part upon the statutory context in which reasons are to be given and the degree of care with which it may be expected that the reasons are prepared. Part of that statutory context in the present case is the volume of decisions to be made and the necessity to assess both disputed factual claims and competing policy considerations. Part of that statutory context, however, is that decisions such as the present impact fundamentally upon the life of a claimant and their immediate family. Part of that statutory context is also the fact that the Legislature has entrusted the making of the present class of decisions to the Minister personally. It is to be expected that such reasons have been carefully thought through and with an appropriate sense of responsibility as to the manner in which decisions impact upon – after all – an individual.

The reasons provided

32    Such is the approach to be adopted when reviewing the reasons provided by the Assistant Minister in the present case.

33    The reasons for decision of the Assistant Minister made on 11 July 2017 commence as follows:

REVOCATION UNDER S. 501CA OF THE MIGRATION ACT 1958 – DECISION BY THE ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION

I have considered all relevant matters including an assessment of the character test as defined by s. 501 of the Migration Act 1958 (the Act), and all evidence before me provided by, or on behalf of, or in relation to Mr Lagi Tamaso BUADROMO in connection with the possible revocation under s. 501CA(4) of the Act, of the original decision under s. 501(3A) of the Act to mandatorily cancel Mr BUADROMO’s Class BB Subclass 155 Five Year Resident Return visa.

Thereafter follows three “[r]evocation outcomes” ranging from a statement of satisfaction that Mr Buadromo passes the character test through to a statement of satisfaction that he has not passed the character test. The Assistant Minister “circled” the last of the three “[r]evocation outcomes”, namely “[n]on-revocation outcome”.

34    That decision, and the statement that the Assistant Minister had “considered all relevant matters”, is to be read together with the Statement of Reasons separately provided in respect to that decision.

35    Although the reasons provided should be read in their entirety, particular parts of the reasoning process assume greater importance than others.

36    When addressing the question as to whether there was “another reason why the original decision should be revoked” and s 501CA(4)(b)(ii), the Assistant Minister’s reasons state in part as follows:

Best interests of minor children

…

[15]    I am aware that Mr BUADROMO was separated from Ms Turagalailai before his incarceration. I consider Mr BUADROMO has provided physical, emotional and financial support to his family. I acknowledge his statement that the three children lived with Mr BUADROMO at his mother’s house prior to his incarceration. I note Mr BUADROMO helped his children with their homework, took the older two to school and arranged day-care for the younger son, arranged extra curriculum activities, took them to the park, and taught them spiritual Christian beliefs. I accept that Mr BUADROMO had carer responsibilities for his three children prior to his incarceration and has continued to play a strong parental role in their lives. Mr BUADROMO also stated he talked to the children everyday on the phone while he was in prison. I acknowledge Mr BUADROMO’s statement that his incarceration has affected Natasha and Grace’s school performance; that they have been missing school ‘a lot’.

[16]    I note Mr BUADROMO’s statement that Ms Turagalailai was recently diagnosed with postnatal depression. Mr BUADROMO stated the impact of his visa cancellation would cause the children ‘to lose security, hurt, feel deserted, broken in heart and spirit, stress, depression, lose hope for the future…’.

[17]    Mr BUADROMO also states that prior to his incarceration the family had never been apart and the separation is affecting the children’s wellbeing. His submissions also include that it will be hard for the children to live a normal life in Australia if he is not there to support them as they grow up. Mr BUADROMO also states that he need to be here to financially support the children as his wife is not working and if she returns to work this will not be enough alone to support three children. He states that he will not be able to support the children if he is living in Fiji.

[18]    Mr BUADROMO states that if he is to return to Fiji his children will not be able to afford to come to Fiji.

37    When addressing the “[s]trength, nature and duration of ties”, the Assistant Minister’s reasons also state in part as follows:

[28]    I note Mr BUADROMO provided financial support to Ms Turagalailai and their children. I also note that since Mr BUADROMO’s incarceration, Ms Turagalailai has been experiencing financial hardship. Mr BUADROMO gave examples that Ms Turagalailai has to find cheaper accommodation and the two older children have to move school which affect their school work; and Ms Turagalailai could not afford to repair their family car.

[29]    Mr BUADROMO is also trying to support Ms Turagalailai emotionally as she is suffering from postnatal depression.

38    The reasons thereafter progress to the following topic:

Extent of impediments if removed

[35]    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 BUADROMO will face if removed from Australia to his home country of Fiji in establishing himself and maintaining basic living standards.

[36]    I note that Mr BUADROMO has two brothers living in Fiji.

[37]    Mr BUADROMO stated his relatives in Fiji cannot support him as they often cannot look after themselves and at times relied on his financial support from Australia in the past.

[38]    Mr BUADROMO said that it will be ‘impossible’ for him to find work in Fiji to provide for the family; it will be hard for him to cope living there alone without his family. Mr BUADROMO’s family will not join him in Fiji as their life is better living in Australia; they cannot afford to visit him in Fiji. It will affect Mr BUADROMO’s mental and physical health should he be sent back to Fiji.

[39]    I take note that Ms Turagalailai will struggle financially should Mr BUADROMO be returned to Fiji.

[40]    I recognised that Mr BUADROMO is 46 years of age, and has not returned to Fiji for a long time and therefore may no longer be familiar with the culture or language. I note that Mr BUADROMO has some family in Fiji, and although he will likely suffer hardship in readjusting to life in Fiji, he may seek support from his family to assist him to readjust and resettle in Fiji.

[41]    I also consider Mr BUADROMO has some work skills which may help him in gaining employment in Fiji.

[42]    Mr BUADROMO has not identified any health issues. However, should Mr BUADROMO require medical or other services in Fiji, he will have access to those as available to other citizens in Fiji. I recognise that any available services may not be of the same high standards as those equivalent services in Australia.

39    When addressing Mr Buadromo’s criminal conduct, that part of the reasons relevantly proceeds as follows:

Protecting the Australian Community

[43]    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 consideration of the protection of the Australian community, noting in particular Mr BUADROMO’s claim that he will not re-offend. I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens.

Criminal conduct

…

[46]    The indecent assault occurred on 29 May 2016, when Mr BUADROMO, who was at the time separated from his ex-partner (Ms Turagalailai) was asked to look after their 11 year old and three month old children at Ms Turagalailai’s home while she was out for the night. On her return to the house, Mr BUADROMO stated ‘you need me I am helping you out’ which was rejected by Ms Turagalailai who stated she did not want him in her life anymore and to leave her alone. Mr BUADROMO disregarded her statements and proceeded to indecently assault her, touching her vagina inside her clothing, without her consent. The judge considered it a serious offence noting it took place inside the victim’s home, constituting a breach of trust, and was in no way lessened by the fact that the victim at one stage was a partner…

The reasons go on to address the convictions which led to Mr Buadromo’s imprisonment as follows:

[47]    Mr BUADROMO’s criminal history shows that from 2004 - 2007 he was convicted with driving offences, non-compliance with taxation law and stalking. Penalties varied from fines between $400-5,500, license disqualification for 2 years, and s. 9 bond of 12 months.

[48]    Mr BUADROMO provides an explanation in relation to the tax offences stating that he was not aware he had to pay his own tax because he used an ABN, as he though the employer was responsible for these. He has learnt from this mistake for the future. He states that the stalking was a result of his partner’s parents making a complaint, and they later reconciled their differences.

[49]    I find that the sentences Mr BUADROMO received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy. I have considered that the court viewed the domestic violence offending and I note that the sentence of imprisonment given in 2016 was for his first.

40    When addressing the “[r]isk to the Australian community” posed by Mr Buadromo, the reasons provide in part as follows (without alteration):

[53]    I have considered Mr BUADROMO’s statement that he has now accepted Ms Turagalailai’s decision to split up and he ‘sincerely regret’ the way he treated her without respect, and that he feels shame.

[54]    Mr BUADROMO stated he is remorseful and will never re-offend and he has learnt to ‘better ways to solve family problems’.

[55]    I note the judge’s comment in 2016 that Mr BUADROMO had no violent offending in the past 19 years.

[56]    I also take note that Ms Turagalailai has provided a letter supporting Mr BUADROMO stating he is now remorseful.

[57]    Although I accept that Mr BUADROMO has no prior violent or sexual offending and has expressed remorse for his offending conduct against his former partner, I also consider that at the time of sentencing he lacked insight into his offending, was assessed as a medium to low risk, and that in the time since, his rehabilitate efforts have not yet been tested in the community. I therefore find there is a likelihood that Mr BUADROMO will re-offend, albeit a low likelihood. I consider that further offending of a violent nature by Mr BUADROMO could result in physical harm to members of the Australian community. I am cognisant that Mr BUADROMO’s rehabilitation is yet to be tested in the community.

The Grounds of Review as amended

41    The Grounds relied upon in the Amended Originating Application identify a number of well-recognised grounds whereby jurisdictional error may be exposed. Of particular relevance are the following:

    a failure “to give proper, genuine and realistic consideration to the applicant’s representations”; and/or

    a failure “to conduct the task required under the Act”.

Both Grounds can be considered together.

42    The decision of the Assistant Minister, it is concluded, has been made without findings of fact being made in respect to a number of issues which formed part of the decision-making process. “Proper, genuine and realistic consideration” of the issues presented for resolution required the Assistant Minister to go beyond merely “noting” what Mr Buadromo had been putting forward for consideration; what was required of the Assistant Minister was the taking of the further step of making an assessment as to whether what was being put forward had factual merit. That assessment process may remain a matter entrusted to the Assistant Minister to resolve; but the Assistant Minister could not halt that assessment process at the outset by merely “noting” what had been put before him and not proceeding to engage in some assessment as to the merit of that which was being put forward. The requirement imposed by s 501G(1)(e), which is a “task required under the Act”, only reinforces the necessity for the Assistant Minister to complete his assessment by making findings of fact. In the face of s 501G, “the Court may draw certain inferences from what is not expressly set out in the Reasons as much as it may draw an inference from that which is expressly set out”: Stevens v Minister for Immigration and Border Protection [2016] FCA 1280 at [44], (2016) 153 ALD 346 at 358 to 359 per Charlesworth J. The absence of an express finding of fact may thus assist in reaching a conclusion that no finding was implicitly made.

43    This conclusion has been reached with considerable diffidence given:

    the well-accepted reservations which have been expressed with too readily concluding that “proper, genuine and realistic consideration” has not been given to a particular matter; and

    the need to constantly recognise the limitations placed upon judicial review as opposed to merits review of an administrative decision – those limitations themselves reflecting a well-accepted division of judicial and administrative functions.

Considerable diffidence is also expressed by reason of the fact that:

    other parts of the reasons provided by the Assistant Minister in fact disclose “proper, genuine and realistic consideration” being given to (for example) the best interests of the children. Where considerable care is exposed by part of the reasoning process, it is necessary not to scrutinise the balance of the reasoning process with an eye keenly attuned to the perception of legal error where none truly exists: cf. Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22], (2013) 229 FCR 290 at 297 to 298 per Flick J (Katzmann J agreeing generally, Wigney J agreeing). See also: [2013] FCAFC 141 at [29] to [31], (2013) 229 FCR at 298 to 299 per Katzmann J

44    The expression “proper, genuine and realistic consideration” may for present purposes be traced back to the following observations of Gummow J in this Court in Khan v Minister for Immigration and Ethnic Affairs (unreported, FCA, Gummow J, 11 December 1987):

[W]hat was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense…

These observations have oft been repeated: see, e.g., Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [23], (2015) 231 FCR 513 at 520 per Flick, Griffiths and Perry JJ; Reece v Webber [2011] FCAFC 33 at [68], (2011) 192 FCR 254 at 277 per Jacobson, Flick and Reeves JJ; Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 13 per Sheppard J.

45    But it has also been recognised that “[t]aken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review”: Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], (2010) 6 ASTLR 339 at 351 to 352 per Basten JA (Allsop P agreeing). See also: Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171 at [76], (2007) 153 LGERA 450 at 467 per Basten JA. These words of caution have also themselves been oft-repeated: see, e.g., Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [30], (2010) 243 CLR 164 at 175 to 176 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Tewao v Minister for Immigration and Citizenship [2011] FCA 1515 at [41] per Katzmann J. Indeed, Perram J has queried whether the phrase adds much to the analysis: Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22]. The formula of “proper, genuine and realistic consideration”, it has also been said, “has the very real danger of creating ‘a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised’”: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [24], (2015) 231 FCR 513 at 520 per Flick, Griffiths and Perry JJ (applying Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [65], (2001) 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ). However, whether these criticisms be correct matters not; the phrase “remains a useful touchstone to ensure that consideration given to a particular matter is such consideration as is required by law”: Islam v Cash [2015] FCA 815 at [14], (2015) 148 ALD 132 at 135 to 136 per Flick J.

46    The dividing line between a conclusion that an administrative decision-maker has not given proper or adequate consideration to a particular matter and has thereby failed to discharge the task required by law (on the one hand) and a conclusion that the administrative decision-making function has indeed been discharged but factually miscarried (on the other hand) is notoriously difficult to define with any precision. A determination as to where that line is to be drawn and where judicial intervention trespasses into impermissible merits review depends upon the facts and circumstances of each individual case. Any conclusion that one case falls on one side of the line and another case on the other side is inevitably a question of judgment – but any individual conclusion must attempt to explain the basis upon which it has been reached. An unexplained conclusion may conceal (albeit unwittingly) a tendency to merely side-step the problem of identifying the permissible limits of judicial scrutiny.

47    Difficulty in explaining why a particular case falls on one side of the line or another may itself have a tendency to conceal impermissible merits review with the identification of legal error. A mere statement that a matter has not been “properly, genuinely and realistically” taken into account may well be, with respect, no more than the ritual incantation of a phrase and a conclusion rather than a reasoned approach as to why legal error is exposed.

Those matters in respect to which there were no findings

48    With reference to the reasons provided by the Assistant Minister in the present case it is respectfully considered that the error in those reasons can be identified with some degree of precision.

49    In order for the Assistant Minister to have given “proper, genuine and realistic consideration” to the matters identified, the Assistant Minister, it is considered, was required to :

    not merely “note” what Mr Buadromo had “stated” as to the difficulties he said he would confront if returned to Fiji (at paras [36] to [38]) – the Assistant Minister was also required to make a finding (for example) as to whether he would be able to find work and provide for his family.

A finding that if Mr Buadromo was sent back to Fiji it would “affect [his] mental and physical health” (at para [38]) and that he would “likely suffer hardship in readjusting to life in Fiji” (at para [40]) falls short, with respect, of a finding made in respect to the claims made by Mr Buadromo that “it will be ‘impossible’ for him to find work in Fiji”. Such statements cannot be construed as “implicit findings” that the Assistant Minister accepted the claims as made. The fact that a finding was made in the last sentence of [38], and such findings as are made at paras [40] and [41], arguably fall short of resolving the claims made by Mr Buadromo.

    The same comment may also be possibly made with respect to the Assistant Minister’s recitation of the “state[ment]” made by Mr Buadromo as to the inability of his children to visit him should he be returned to Fiji (at para [18]). The reason for qualification is that the “state[ment]” referred to at para [18] is to some extent, albeit not completely, addressed by the findings at [21] and [22].

    not merely state that Mr Buadromo had provided an “explanation in relation to the tax offences” and that he “has learnt from this mistake for the future” (at para [48]). The Assistant Minister was required to go on and make a finding as to whether that explanation was a truthful explanation or an explanation that should be accepted as a genuine explanation. The Assistant Minister’s statement that Mr Buadromo “has learnt from this mistake for the future”, it is considered, is more a recitation of the statement made by Mr Buadromo than a finding that the explanation provided by Mr Buadromo is to be accepted. Similarly, the statement in para [48] that Mr Buadromo “states that the stalking was a result of his partner’s parents making a complaint”, says nothing as to whether Mr Buadromo was in fact “stalking” his former partner or whether the “complaint” was unsubstantiated.

The Assistant Minister, faced with the pre-sentencing report and the sentencing remarks of the Magistrate in August 2016 and Mr Buadromo’s submissions, was required to make an assessment as at July 2017 as to what to make of Mr Buadromo’s submissions. The reasons expressed at paras [53] to [56], contrary to the submission advanced on behalf of the Assistant Minister, cannot be regarded as findings.

    not merely “note” the claim made by Mr Buadromo “that he will not re-offend” (at para [43] and [54]) and a statement that Mr Buadromo’s claim has been “considered” (at paras [53]). The Assistant Minister was required to go on and reach a state of satisfaction as to whether the statements made by Mr Buadromo reflected (for example) a genuine current acceptance on Mr Buadromo’s part that he had treated his former partner in the past “without respect” (at para [53]) and that Mr Buadromo was genuinely “remorseful” and genuine in his conviction that he “will never re-offend” (at para [54]).

A finding of fact, for example, that Mr Buadromo is now “remorseful” of his past conduct may be of relevance to an assessment as to the prospects of his re-offending. So, too, would a finding of fact that Mr Buadromo “now accept[s]” his former partner’s decision “to split up” (at para [53]). Even though such findings of fact were not made a conclusion was reached that “there is a likelihood that Mr BUADROMO will re-offend” (at para [57]).

Unlike other aspects of the claims made by Mr Buadromo where Counsel for the Assistant Minister sought to take refuge in findings said to have been implicitly made, para [57] is an express finding as to the likelihood of reoffending – but it is a finding made without the related claims made by Mr Buadromo being resolved. A finding of fact, for example, that Mr Buadromo does not in fact accept his former partner’s “decision to split up” with him would unquestionably impact upon an assessment as to the likelihood of Mr Buadromo reoffending.

50    It is concluded that the statement of reasons does not contain implicit findings of fact: cf. Stevens [2016] FCA 1280 at [44], (2016) 153 ALD 346 at 358 to 359 per Charlesworth J. It is the failure to make such findings, and the fact that such findings are “missing” from the reasons provided, which exposes the incompleteness of the Assistant Minister’s assessment of the claims made by Mr Buadromo and the fact that he did not give “proper, genuine and realistic consideration” to these matters.

51    Although the reasons provided must be read in a balanced and common sense manner (cf. Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ), it is equally the case that an absence of a finding of fact in a statement of reasons such as that required by s 501G(1)(e) of the Migration Act and s 25D of the Acts Interpretation Act permits a Court to infer that no such finding was made: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [69], (2001) 206 CLR 323 at 346 per McHugh, Gummow and Hayne JJ. See also: East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 at [312], (2008) 23 VR 605 at 677 to 678 per Ashley and Redlich JJA. Such a conclusion is more easily reached where the statement of reasons provided does on occasions employ the language of “I find” (e.g. at paras [21] and [22]) where findings are made; the use of such language on those occasions stands in contrast to those occasions where the language employed is that Mr Buadromo “states” or “stated” (e.g. at paras [17], [37], [48]) or that the Assistant Minister “take[s] into account” (e.g. at para [20]) or “take[s] note” (e.g., at para [39]).

52    The more so is this the case in circumstances where the competing considerations to be weighed by the Assistant Minister have given rise to some factors favouring a decision revoking the cancellation and other facts have apparently been resolved against such a decision. In the absence of findings being made on these countervailing considerations, it would not have been possible for the Assistant Minister to have weighed one consideration against another.

53    The reason it is insufficient to simply advert to a particular consideration is not because the primary decision-maker may have undervalued it, but because – despite appearances – in truth the decision-maker may not have considered it at all: Commissioner of Taxation v Pham [2013] FCA 579 at [39], (2013) 134 ALD 534 at 544 per Katzmann J. It “is not sufficient simply to advert to the issue … without any analysis”: Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] per Perram J. Faced with the conflicting comments of the sentencing Magistrate and Mr Buadromo’s commitment to not reoffend, more was required than a mere reference to that conflict and the expression of the conclusion reached. Proper consideration required some explanation as to why Mr Buadromo’s statements should either be accepted or not accepted.

54    A proper consideration of the claims made by Mr Buadromo, it is respectfully concluded, required more than merely “noting” what Mr Buadromo had said. A proper consideration required attention to be directed to whether the issues raised for consideration had any merit and, if so, the extent to which those issues were matters that may impact upon the decision to be made. It is the content and reliability and factual accuracy of the submission being made which required proper evaluation and consideration; it is not the mere fact that a submission had been made which is of importance. A statement by a decision-maker that “I have listened to everything that you have said” falls short of a statement that “I have listened to everything that you have said and accept” (for example) “that you will not be able to ‘provide’ for the family”.

55    The concluding statement on the part of the Assistant Minister that he had “considered all relevant matters” (at para [59]), it should also be noted, does not “shield from scrutiny” the extent to which he has in fact considered the claims made and has in fact resolved those claims by reference to findings of fact material to the conclusion ultimately reached: cf. Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 at [32] per Flick, Barker and Rangiah JJ; Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 at [48] per Griffiths J.

56    The well-founded caution expressed in Liang assumes particular importance not only when considering the reasons provided but also when considering the findings that are made. Just as a court should not be overly critical when focussing attention upon a failure to make express findings of fact in circumstances where a fair and balanced reading of the explanation provided makes apparent that such findings were implicitly made, a court should equally not shirk from concluding that an absence of express findings of fact may well expose a failure to appropriately undertake the decision-making task where the decision maker refers to evidence and claims made but fails to consider those claims and evidence. To be overly willing to engage in such a process of implication has the impermissible tendency to both propel the court into the task of fact finding or even the tendency to permit a decision-maker to retrospectively do that which should have been done before a decision was made.

57    A separate concern also emerges from para [57] and the Assistant Minister’s finding as to the likelihood of reoffending and “that further offending of a violent nature by Mr BUADROMO could result in physical harm to members of the Australian community”. It is the assessment of the likelihood of “physical harm to members of the Australian community” which attracts attention. An assessment as to the prospect of further offending vis-à-vis his wife was one matter; an assessment as to the prospect of offending and inflicting physical harm on other members of the Australian community is, with respect, an entirely different matter. There was nothing before the Assistant Minister, and certainly nothing in the findings and reasons given, which support any contention that Mr Buadromo posed any threat to anyone other than (potentially) his former partner. Indeed, the only express reference that is made to any such threat is to the contrary, namely the “not[ing]” of the sentencing Magistrate’s comment “in 2016 that Mr BUADROMO had no violent offending in the past 19 years”: at para [55]. This particular assessment made by the Assistant Minister is an assessment devoid of evidence and an assessment having no rational foundation: cf. Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 to 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. See also: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [145], (1999) 197 CLR 611 at 656 to 657 per Gummow J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [38], (2004) 78 ALJR 992 at 998 per Gummow and Hayne JJ.

58    This separate concern only provides further reason to question the reasoning process pursued by the Assistant Minister. That reasoning process is, with respect, fundamentally flawed by reason of jurisdictional error.

59    In reaching these conclusions it must necessarily be recognised that different minds may consider the criticisms expressed in respect to one particular aspect of the reasons provided more persuasive than the criticisms expressed in respect to another aspect. Thus, for example, it would be open to conclude that the reasons did provide a reason for the Assistant Minister’s conclusion in respect to the “[r]isk to the Australian community”, namely that Mr Buadromo’s “rehabilitation is yet to be tested in the community” (at para [57]). Implicitly, it could be said that the Assistant Minister accepted Mr Buadromo’s “statements” on this issue at face value. But where a man’s future is at stake, more is required than possible implication. Proper consideration required an assessment to be made as to the reliability of Mr Buadromo’s statements and a comparison then made with the other matters to which the reasons refer.

60    A different conclusion has been reached in respect to those parts of the Assistant Minister’s reasons which acknowledge that Mr Buadromo:

    “stated he talked to the children everyday on the phone while he was in prison” (at para [15]); and

    “stated the impact of his visa cancellation would cause the children ‘to lose security, hurt, feel deserted, broken in heart and spirit, stress, depression, lose hope for the future…’” (at para [16]).

It is respectfully concluded that the Minister did consider and resolved these “statements” when making the findings at paras [21] and [22].

CONCLUSIONS

61    It is concluded that the Assistant Minister’s assessment pursuant to s 501CA(4)(b)(ii) of the Migration Act as to whether there was “another reason why the original decision should be revoked” has miscarried because he failed to give proper consideration to matters that were identified in the statement of reasons as steps in the decision-making process.

62    Although the gravamen of the reasons for decision was directed to the circumstances surrounding the offences which gave rise to the convictions in 2016 and the best interests of the children, the matters identified all formed part of the reasoning process of the Assistant Minister and were all in their own right matters that required proper consideration. The reasons of the Assistant Minister, with respect, do not expose consideration being given to these matters.

63    As is self-evident from the vacillation in these reasons for decision, the conclusion reached has not proved easy.

64    Given the conclusion ultimately reached, it nevertheless follows that the Assistant Minister’s decision should be set aside and the matter remitted to the Assistant Minister to give proper consideration to Mr Buadromo’s claims.

65    An order should also be made pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth) that such costs as are to be paid by the Assistant Minister are to be paid directly to the pro bono lawyers who appeared for Mr Buadromo. In seeking such an order, it has been assumed that Senior Counsel who made the application was implicitly stating that a “costs agreement [had been] entered into”, that being a conditions precedent to the exercise of the discretion conferred by r 4.19(3). The entering into of such an agreement is a “precondition” to the exercise of the discretion: MZZMG v Minister for Immigration and Border Protection [2015] FCAFC 134 at [71], (2015) 234 FCR 180 at 197 per Tracey, Murphy and Mortimer JJ. Given the assistance normally given to the Court by Counsel who appear pro bono for a party, it would be difficult to envisage circumstances in which the discretion conferred by r 4.19 would be exercised so as not to make such an order. Although the role of pro bono counsel always remains a role of advancing the interests of the party for whom they appear, the assistance also provided to the Court in the clarification of the issues to be resolved – especially in migration cases – is a factor not to be lightly placed to one side when exercising the discretion: Chancliff Holdings Pty Ltd v Bell [1999] FCA 1783 at [15] to [16] per Lee J.

THE ORDERS OF THE COURT ARE:

1.    The decision of the Assistant Minister made on 11 July 2017 is set aside.

2.    The matter is remitted to the Assistant Minister for redetermination in accordance with law.

3.    Subject to order 4, the Assistant Minister is to pay the costs of the Applicant, including the costs thrown away by the adjournment granted on 23 November 2017.

4.    The costs to be paid by the Assistant Minister are to be paid pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth) directly to the pro bono lawyers who appeared for the Applicant.

Associate:    

Dated:    21 December 2017