FEDERAL COURT OF AUSTRALIA

Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s decision to refuse the Applicant’s visa is quashed and the matter remitted to the Respondent to reconsider the visa application according to law.

2.    The Respondent pay the Applicant’s costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

KERR J:

1    The Applicant, Mr Sahil Sabharwal, seeks judicial review of a decision made personally by the Minister for Immigration and Border Protection (the Minister) to refuse to grant him a Skilled (Residence) (Class VB) visa on 13 July 2017.

2    Mr Sabharwal is an Indian national. He was born on 30 April 1989. He arrived in Australia as an overseas student in April 2007. As the holder of a student visa Mr Sabharwal had only a temporary right of residence in Australia. On 5 November 2009 Mr Sabharwal applied for a visa which, if granted, would entitle him to remain in Australia. That is the visa which the Minister refused to grant.

3    The Minister’s decision was made pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act). The Applicant challenges the legal validity of the Minister’s decision on a number of grounds including, but not limited to, an assertion that the Minister misconstrued or misapplied s 501(6)(d)(i) of the Act in concluding that Mr Sabharwal had not satisfied him that the Applicant passed the character test.

4    It is not in dispute that if the Minister did misconstrue the test, and the decision was thereby affected, the decision might be set aside. This appeal therefore has as its central issue the proper and fair reading of the Minister’s reasons in refusing to grant the Applicant the visa he had applied for.

5    There is a second associated but more specific issue. It concerns whether, when exercising his discretion under s 501(1) of the Act, the Minister had a legal duty to take into account a psychologist’s report which the Applicant had supplied relating to his mental health and, if so, whether the Minister had failed to do so.

Background and procedural history

6    Mr Sabharwal filed his application on 5 November 2009 (AB pp 32-45).

7    No decision was made for more than six and a half years. No doubt there are reasons for the delay but they are not apparent in the materials before the Court. In the intervening period Mr Sabharwal committed a number of offences.

8    On 5 July 2012 Mr Sabharwal was convicted of a drink driving offence. On 28 October 2015 he was convicted of seven public order offences that had arisen out of two separate incidents. It is common ground that the Applicant was convicted of the offences listed on the dates specified below (at AB pp 29-30):

9    On 15 August 2016 a delegate of the Minister, relying on s 501(1) of the Act, refused Mr Sabharwal’s application. The delegate concluded that the Applicant had not passed the character test as stated by s 501(6)(d)(i) of the Act.

10    The delegate concluded that if the Applicant was allowed to remain in Australia there was a risk that he would engage in criminal conduct in Australia.

11    The Applicant, as he was entitled to, applied for merits review of the delegate’s decision in the Administrative Appeals Tribunal (the Tribunal).

12    The Tribunal referred to the critical issue it was required to address as follows (at [1]-[2]):

1.    Sahil Sabharwal becomes obnoxious when he drinks to excess. He has made a pest of himself to the police on a number of occasions when he was drunk. He has also been convicted of drink-driving. That behaviour has landed him in trouble with the immigration authorities. On 15 August 2016, a delegate of the Minister for Immigration and Border Protection relied on s 501(1) of the Migration Act 1958 to refuse Mr Sabharwal’s application for a new visa that would permit him to remain in this country. The delegate concluded the discretion to refuse the visa was enlivened because the applicant failed the ‘character test’ as defined in s 501(6) of the Act as ‘there is a risk that the person would…engage in criminal conduct in Australia’: s 501(6)(d)(i). Mr Sabharwal has asked the Tribunal to review that decision.

2.    The applicant says he no longer drinks to excess. On that basis, he says [the Tribunal] should not be satisfied ‘there is a risk he would…engage in criminal conduct’. If the applicant is right about that, the discretion to refuse the visa under s 501(1) is not enlivened. The applicant argues that the discretion to cancel should not be exercised against him even if it is enlivened.

13    The Tribunal summarised Mr Sabharwal’s record of offending in the following passages (at [5]-[14]):

5.    Mr Sabharwal was detained after he was found driving with a high range concentration of alcohol late in the early hours of 20 June 2012. In his oral evidence, he explained he had consumed a few beers – but the blood alcohol reading recorded in the Court Attendance Notice shows the applicant must have been drinking considerably more than that. The applicant was convicted on 5 July 2012 and his licence was suspended for 12 months.

6.    The second set of charges arose out of an incident at the Westfield Shopping Centre in Hornsby. The facts are set out in the police facts sheet in exhibit two. Police were called to assist security officers in the centre on 7 August 2015 after the applicant was seen swearing and abusing customers in the food court. Two female police officers approached the applicant. He was verbally aggressive towards them. The applicant was arrested at 8.45am for assaulting one of the police officers while she questioned him about using offensive language in a public place. The applicant kept up a stream of venomous and derogatory comments addressed towards both officers. The abusive language continued after he was taken to the police station. He was also charged with resisting arrest, using offensive language and a second count of assaulting police.

7.     The applicant was clearly drunk early in the morning. He was disturbing the peace, although he was not charged with an offence of that nature. He was verbally aggressive but – while a handful – he was not violent. (His resistance involved going limp and being uncooperative; the assaults appeared to occur when the applicant bumped against the police officers. He did not strike the officers although it appears he did try and spit at one of them.) The applicant was allowed to sober up somewhat before he was released on bail.

8.    The details of this tawdry interaction are, for the most part, unremarkable. But the respondent says the offensive language merits closer attention. The fact sheet does not make clear which of the applicant’s utterances was the subject of the offensive language charge. The fact sheet records the applicant using a number of expletives but that is not necessarily enough to ground a charge. I was told the real problem for present purposes was the applicant’s shouted description of the arresting officers as “whores” and “fucking sluts” after they had effected the arrest and put him in the back of the police vehicle.

9.     The police records provided at the hearing show the applicant rang Hornsby station on several occasions in the days that followed his arrest and release. On 3 September 2015, he called repeatedly to ask for a variation of his bail conditions so he could attend a church event at the Westfield centre where he was arrested. Police declined his request. Later that evening, he rang the station several times and asked for the phone number of an officer so he could send a ‘selfie’. He turned up at the station early the following morning and was disruptive before he was asked to leave. He described the officer who had arrested him earlier as a “slut”. He was obviously affected by alcohol and returned on several occasions to the police station to make a pest of himself throughout the day: exhibit two at p 10-11.

10.    Mr Sabharwal had another run in with police on 21 October 2015. Officers were called to the applicant’s flat to assist sheriff’s officers who were in the process of evicting the applicant. He appeared drunk when the officers arrived. He declined to leave and the police officers removed him from the premises. He became uncooperative and he was placed in handcuffs. At that point, the applicant turned his ire on the real estate agent who had sought the eviction. He is recorded (exhibit two at p 18) as addressing the agent as follows:

Steven, I will fuck you up. This is your fault. I am going to rape your mother. I will stick my dick deep inside her.

11.     The applicant was subsequently charged with stalking or intimidating with the intent of causing fear of physical harm. But he was not done yet. As the applicant was bundled into the police vehicle, he recognized the police officer who had arrested him on the previous occasion. He addressed her by name from the inside of the vehicle, shouting:

Laura is a slut. Laura you are a slut, your mother’s a slut. I will rape you Laura. I will rape your children. I hope your children are born with disabilities. Laura you are a slut. Your grandmother is a slut. I fucking hate you Laura.

12.     The applicant was charged with intimidating a police officer in execution of her duty. There was more to come. After he was transported to the station and placed in the dock, he urinated on the back wall of the dock and the seat. The dock had to be forensically cleaned at a cost of $450. The applicant was charged with damaging property.

13.     The fact sheet notes the applicant contacted the station by phone on a number of occasions in the days that followed. He asked to speak with the female officer whom he had insulted. He also attended the station and behaved erratically.

14.     The applicant initially disputed aspects of the accounts provided by police. In a statement provided to the Minister’s department, he denied he had misbehaved to the extent described in the fact sheets: exhibit one at p 79. When he gave oral evidence at the hearing, he acknowledged the accounts provided by police were accurate although he said he did not have a clear recollection of what occurred. I have no reason to doubt the accounts in the fact sheets, and I accept them. But I was left with the impression that the applicant’s acknowledgement of the police accounts was a tactical concession rather than a demonstration of insight and contrition.

14    Mr Sabharwal told the Tribunal that he had stopped drinking, but in cross examination acknowledged that he had not become abstinent; what he had meant was that he had stopped drinking to excess.

15    The Tribunal accordingly noted at [22]-[23]:

22.    All of the applicant’s relatively low-level offending appears to be connected to alcohol misuse. When he does not drink to excess, the evidence suggests he is able to live within the law: see, for example, the evidence of the community corrections officer at exhibit one, p 85. It follows the risk of Mr Sabharwal re-offending is dependent on whether he can successfully manage his alcohol intake.

23.    It is entirely possible the applicant’s excessive consumption of alcohol was a response to the sense of crisis he felt after he was effectively forced to move out of his brother’s home to live alone in a flat he could not afford. (He insisted he was employed throughout the time he was in the community in a variety of hospitality roles but his answers in cross-examination suggest he was almost certainly under-employed.) If he has not developed an alcohol habit, the prospects of him controlling his behaviour in the future are good. But is that the case?

16    The Tribunal further noted (at [26]) that Mr Sabharwal had disclosed he was then being treated with anti-depressant medications. His doctor’s clinical notes had been produced but the Tribunal (at [28]) stated its reluctance to draw conclusions on that basis. It observed:

…These matters are properly the subject of expert evidence which I can then use in my assessment of the risk of the applicant engaging in further criminal conduct.

17    The Tribunal adjourned to permit the Applicant’s treating medical practitioner to give evidence but that proved difficult to arrange at short notice.

18    Under the heading of “Assessing Risk”, the Tribunal reasoned as follows (at [29]-[33]):

29.    The delegate assumed the applicant’s criminal history of itself provided a basis for finding there was a risk of him engaging in criminal conduct. That is a contestable assumption. In a case like this, one would have thought the delegate should refer to the obvious risk factors when assessing the risk of further offending. I note clause [6] of annex A to the Ministerial Direction No 65 entitled Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – which discusses the operation of the character test – certainly assumes the decision-maker will go further. Clause [6(3)] says:

It is not sufficient to find that the person has engaged in conduct specified [in] paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

30.     But even if I assume the applicant does not pass the character test because there was a risk of him engaging in criminal conduct, I am still required to have regard to the considerations in the body of the Direction. Part B of the Direction refers to three primary considerations which I must take into account when considering the exercise of the discretion to cancel. The first of these is the need for Protection of the Australian Community. To that end, the Direction says (at clause [11.1]) I must have regard to the nature and seriousness of the non-citizen’s conduct to date. But it also says I must have regard to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Clause [11.1.2(3)(b)(i)] points out that I should place particular value on “information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending”.

31.     The absence of expert evidence addressing the applicant’s mental health issues makes it difficult to complete the risk assessment contemplated in clause [11.1] of the Direction.

32.     I told the parties during the hearing that I was considering remitting the matter to the Minister pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 with a view to having the applicant seen by appropriate experts who could prepare a report on whether he has an alcohol misuse condition or other mental health issues that might raise the risk of him misusing alcohol and engaging in further offending. Mr Sharpe, for the Minister, urged me not to adopt that course. While he conceded the power to remit was available in appropriate cases, he pointed out it should be read subject to the legislative intention that reviews of this nature be concluded within a fixed time frame.

33.     There is some force in Mr Sharpe’s point, but I am satisfied it is appropriate to remit for further consideration in this case. The need for speed in these cases does not trump the obligation to reach the correct or preferable decision. If the material before the Tribunal includes obvious gaps that are capable of being addressed, the correct or preferable decision may be to remit the matter for further consideration. In this case, the parties appeared not to appreciate there was an obvious gap in the evidence until I raised the issue at the commencement of the hearing. (In most other hearings in the General division of the Tribunal, the gap would almost certainly have been identified during the course of the conferencing process. A failure to produce relevant evidence after that prompt might not be viewed in the same way.) There is no suggestion the applicant approached the hearing with a view to putting off the day of reckoning, and I am conscious of the need to avoid rewarding an applicant who has not prepared properly for a hearing although – in fairness – I should acknowledge the applicant‘s preparation was almost certainly complicated by the fact he was being held at a remote location.

19    Consistent with that reasoning the Tribunal concluded at [34]:

34.    The decision under review is set aside. I decide that the matter should be remitted to the respondent for reconsideration with a recommendation that the decision-maker obtain independent expert evidence in relation to the extent and effect of the applicant’s alcohol misuse and any other mental health conditions that might trigger alcohol misuse.

20    The Tribunal’s reasons were published on 25 November 2016.

21    On 15 March 2017 a case officer from the Department of Immigration and Border Protection (the Department) wrote to Mr Sabharwal inviting him to provide such further information. On 12 April 2017 his migration agent replied on his behalf as follows (at AB p 118):

…The applicant has instructed us to make a request of additional two week [sic] time to submit the requested psychological or psychiatric report in relation to his alcohol misuse and mental health issues as requested by the AAT, to enable further processing of his visa application.

22    On 13 April 2017 the report of a registered psychologist, Ms Claudia Roman, dated 11 April 2017 was sent to the Department on the Applicant’s behalf (AB pp 133-136).

23    Ms Roman’s report addressed Mr Sabharwal’s mental health and drinking issues as follows:

Drug and Alcohol Use:

In June 2016 Sahil came to see me as he was referred by his GP Dr Maldonado, for depression and anxiety. Dr Maldonado prescribed an antidepressant that also targets anxiety, Lexapro. Sahil attended for 2 sessions and he revealed that he had been engaging in some self medicating behaviour with the use of alcohol, and at the same time he reported that he had managed to cut this alcohol use down significantly before even attending sessions. Sahil reported that the increased reliance on alcohol coincided with his brother's move to Melbourne and finding himself without fulltime employment. He informed me that at this point on the 7th August 201, he was charged with Resisting Arrest and Assault of a Police Officer in the execution of her duty.

In our recent sessions Sahil has demonstrated remorse, appeared ashamed of his actions and conduct, agreeing that he needed help to address his depression and any reliance on alcohol. He also agreed that his conduct had been reprehensible and that he had a problem with anger management. It is my professional experience of Sahil in these recent sessions that he appears to be proactive in seeking help, accessing appropriate pharmaceutical medication under the guidance of his GP and is willing to engage in at times difficult introspection.

Sahil has always maintained that he does not use drugs of any kind.

I am aware that Sahil was charged on the 21st October 2015, with other offences such as listed in Respondents Supplementary bundle of documents in ‘Sahil Sabharwal and Minister for Immigration and Border Protection’ (intentionally damage property, intimidate a police officer, stalk or intimidate). It is stated that he was under the influence of alcohol when all these offences were committed.

Clinical Assessment:

Sahil has always been an extremely hard worker throughout his life in Australia, often working 7 days a week. His goal has been to make Australia his home and he has wanted to be a productive and contributing member of society.

Sahil has changed markedly since our first sessions in 2016. His time in both detention centres appears to have had a detrimental effect on him. Throughout the sessions that Sahil has attended with me in 2016 and more recently in 2017 it is my professional opinion that Sahil is a sensitive individual who has been adversely affected and whose judgement has been impaired by depression, loneliness and social isolation; during his time in Australia since 2007 and in particular since having attended the detention centres. Sahil reports having lived a life free from these adverse effects in India.

In the most recent sessions this year with Sahil he has presented as quite erratic in mood. In our first session Sahil’s mood, presentation and symptoms were consistent with depression and anxiety. It is likely that he may be suffering from Post Traumatic Stress Disorder (PTSD) given his experiences at Villawood Detention Centre and at Christmas Island Detention Centre, but this would have to be further investigated and a more thorough assessment carried out.

It appears that Sahil has a very strong connection to his family, reporting that he misses his parents and talks to them as often as possible and finds their support to be a stabilising factor in dealing with his current situation. Sahil reports that he was more settled, felt grounded and connected when his brother and sister in law resided in Sydney and he has felt extremely overwhelmed and isolated.

Conclusion:

Sahil has demonstrated self responsibility in seeking professional help to begin addressing his past mental health problems. Included in Sahil’s current treatment program is the goal for him to reinitiate and maintain supervision with his GP while recommencing the appropriate course of antidepressants.

Sahil has assured me that since he has been released from the Detention Centre he has not engaged in alcohol consumption. Nevertheless, we have discussed his participating in specific alcohol counselling in order to ensure he receives adequate support in this area.

Sahil has reported to me that he is very aware that he needs professional psychological help in order to deal with the difficult issues that he faces including depression, anger management and the behaviour and thought processes that have lead to these inappropriate incidences towards the female police officers.

It is recommended that Sahil continues to see a mental health professional on a weekly to fortnightly minimum basis for an extended period of time. Sahil has an interest in setting goals, working on action plans and looking at TAFE courses for future training possibilities.

Sahil reports that he realises that his past behaviour of intentionally damaging property, intimidating people and stalking is not acceptable and appears extremely motivated to change for the better. He has been a hard working member of our community for the last 10 years. It is my professional opinion that if Sahil continues to engage help seeking behaviours and continues to work with mental health professionals as well as remaining engaged with his family Sahil Sabharwal has the potential to achieve rapid progress.

24    On 19 May 2017 the Applicant was notified that the Department had received the sentencing remarks of Magistrate Viney delivered on 28 October 2015 (AB pp 148-154). The Applicant was advised that the sentencing remarks could be taken into account in considering his visa application. He was invited to respond. His migration agent did so on 23 May 2017 (AB pp 155-156), submitting that the sentencing remarks were consistent with the observations of the Tribunal. It concluded:

We believe that the applicant has already [been] punished for the offences committed while intoxicated and has been receiving counselling for alcohol problems. It is a universal principle of justice that no one should be punished twice [for] the same offence.

We also request you to indicate any particular part or parts in the Court decision/sentencing remarks which you want the applicant to address, as the remarks clearly flag out that the central issue of the offence is ALCOHOL. We again submit that the main problem to address is the applicant's alcohol abuse for which he is seeking counselling.

(Emphasis in original)

25    On 24 May 2017 a case officer from the Department replied:

… [T]here is no particular part of the sentencing remarks to be addressed, they are given to your client for him to comment on as he wishes.

26    That appears to have been the last communication of any substance between the Department and the Applicant before the decision now challenged in these proceedings was made.

Statutory framework

27    The purposes of s 501 include the protection of the Australian community: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 per Allsop CJ at [16]. When a decision is made by the Minister personally, the evaluative choices are for him or her alone. Respect for the separation of powers doctrine requires all federal courts to not usurp the functions of an administrative decision maker. To the extent it needs be stated, the Minister, in distinction to his delegates, is not bound by “Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” made pursuant to s 499 of the Act (Direction 65). It is settled law that in applying s 501 the Minister may give protection of the Australian community priority over any hardship the decision might cause an individual, subject to the limits on the discretionary power conferred on the Minister by that section.

28    However, every statutory power or discretion conferred on an officer of the Commonwealth must be exercised within the boundaries, express or implied, set by the enactment conferring it: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; per Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ, and Alexandra Private Geriatric Hospital Pty Ltd v Blewett [1984] FCA 223; (1984) 2 FCR 368 at 375 per Woodward J; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) per French CJ at 348-352.

29    Accordingly the text of s 501 read in its statutory context, properly construed, defines the boundaries of the powers and discretions lawfully available to the Minister when refusing a visa on character grounds.

30    That section is as follows:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate--natural justice applies

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

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

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

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

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

Decision of Minister--natural justice does not apply

(3)    The Minister may:

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

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

if:

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

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

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

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

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

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

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

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

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

(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

(aa)    the person has been convicted of an offence that was committed:

(i)    while the person was in immigration detention; or

(ii)    during an escape by the person from immigration detention; or

(iii)    after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab)    the person has been convicted of an offence against section 197A; or

(b)    the Minister reasonably suspects:

(i)    that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii)    that the group, organisation or person has been or is involved in criminal conduct; or

(ba)    the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i)    an offence under one or more of sections 233A to 234A (people smuggling);

(ii)    an offence of trafficking in persons;

(iii)    the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

(c)    having regard to either or both of the following:

(i)    the person's past and present criminal conduct;

(ii)    the person's past and present general conduct;

the person is not of good character; or

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

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

(iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

(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; or

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f)    the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i)    the crime of genocide;

(ii)    a crime against humanity;

(iii)    a war crime;

(iv)    a crime involving torture or slavery;

(v)    a crime that is otherwise of serious international concern; or

(g)    the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(h)    an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

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:

(a)    the person has been sentenced to death; or

(b)    the person has been sentenced to imprisonment for life; or

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)    the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

(e)    the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

(f)    the person has:

(i)    been found by a court to not be fit to plead, in relation to an offence; and

(ii)    the court has nonetheless found that on the evidence available the person committed the offence; and

(iii)    as a result, the person has been detained in a facility or institution.

Concurrent sentences

(7A)    For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.

Periodic detention

(8)    For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.

Residential schemes or programs

(9)    For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:

(a)    a residential drug rehabilitation scheme; or

(b)    a residential program for the mentally ill;

the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.

Pardons etc.

(10)    For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

(a)    the conviction concerned has been quashed or otherwise nullified; or

(b)    both:

(i)    the person has been pardoned in relation to the conviction concerned; and

(ii)    the effect of that pardon is that the person is taken never to have been convicted of the offence.

Conduct amounting to harassment or molestation

(11)    For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:

(a)    it does not involve violence, or threatened violence, to the person; or

(b)    it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.

Definitions

(12)    In this section:

"court " includes a court martial or similar military tribunal.

"imprisonment " includes any form of punitive detention in a facility or institution.

"sentence " includes any form of determination of the punishment for an offence.

Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa.

Note 2: For notification of decisions under subsection (1) or (2), see section 501G.

Note 3: For notification of decisions under subsection (3), see section 501C.

The Minister’s decision and his reasons

31    On 13 July 2017 the Minister decided to refuse Mr Sabharwal the visa he had applied for.

32    On 31 July 2017 the Department advised the Applicant of the Minister’s decision. Mr Sabharwal was told that he had not satisfied the Minister that he passed the character test as provided by s 501(6)(d)(i) of the Act and was given a statement of reasons (AB 12-26). I refer to that statement as the “Minister’s reasons” notwithstanding that it appears uncontentious that those reasons were prepared by a departmental officer. The Minister circled option (d) and signed and dated a briefing paper as had been submitted to him (AB 11). Once the document was adopted by the Minister it became his reasons.

33    Those aspects of the Minister’s reasons which are relevant to the specific grounds of appeal need to be examined in greater detail but an outline of the way in which the Minister approached the task is as follows.

34    The Minister noted at [4] that s 501(1) of the Act enabled him to refuse to grant a visa to a person if the person did not satisfy him that he or she passes the character test.

35    The Minister stated at [5] and [6]:

5.    The relevant ground of the character test in this case is s. 501(6)(d): in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i) engage in criminal conduct in Australia;…

6.    Accordingly I have had regard to Mr SABHARWAL’s criminal conduct and considered the risk of him reoffending in the future if he were to remain in Australia.

36    At [7]-[14] under the heading “Criminal conduct” the Minister outlined the Applicant’s prior convictions. In doing so he referred to the facts stated in the New South Wales Police Facts Sheet that had earlier been supplied to the Tribunal.

37    On that basis at [15] the Minister found that the Applicant had, in the past, engaged in criminal conduct in Australia. (No attack is made on that finding).

38    That was followed by four paragraphs ([16]-[19]) in which the Minister addressed the seriousness of the Applicant’s past criminal conduct.

39    Paragraph 16 commences with the words “[i]n considering the nature and seriousness of Mr SABHARWAL’s criminal offending I note that violent offences are viewed seriously”. To the extent that statement implies that the Minister had made a finding that the Applicant’s past criminal offending involved actual violence as that word is ordinarily understood, there would appear to be nothing in the evidence to support such a finding: and see, by contrast, the Tribunal’s finding at [7] (AB p 110).

40    Paragraph 17 reads:

I have also had regard to the principle that any conduct that forms the basis of a finding that a non-citizen does not pass a subjective limb of the character test is considered to be serious.

41    That reasoning appears to assume that the Minister’s earlier finding at [15] is or might be sufficient to establish that Mr Sabharwal would not pass the character test. If that were so it would be an error. Only if a non-citizen’s past criminal conduct amounts to a “substantial criminal record” pursuant to s 501(6)(a) and (7) does the consequence of not passing the character test follow as a matter of course. That is not Mr Sabharwal’s case.

42    Additionally it may be doubted that s 501(6)(d)(i) is any longer, if it ever was, a “subjective limb” of the character test. The character test has been the subject of many amendments. Prior to 1 June 1999 s 501(1) of the Act provided that:

The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if…. (b) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would: (i) be likely to engage in criminal conduct in Australia.

43    That “limb” of the character test arguably involved some subjective element – it required the Minister to be satisfied of the likelihood that a person would engage in criminal conduct.

44    By contrast, s 501(6)(d)(i) now provides an objective test. The statutory criterion required for the current character test to be engaged is that there is “a risk” that, if the person is allowed to enter or remain in Australia the person would engage in criminal conduct in Australia. The application of that criterion requires an evaluative judgment to be made – but it would be inapt to describe that as a subjective test.

45    Paragraph 18 commences:

Mr SABHARWAL’s offence of ‘assault officer in execution of duty’, where Mr SABHARWAL swore and rushed at a police officer and then attempted to spit on her is a violent offence…

46    What is stated in that paragraph appears to be inaccurate. Mr Sabharwal did not, as a plain reading of it infers, in an act of violence, rush at a police officer and attempt to spit at her. The New South Wales Police Facts Sheet which the paragraph purports to summarise describes the Applicant’s conduct in the following terms (at AB 94):

Constable [X] continued to ask the accused for his identification due to his offensive language and the accused quickly walked towards Constable [X] shouting in an aggressive manner and had his head bowed down looking directly at Constable [X] with his arms by his side. Constable [X] raised both her hands to stop the accused as she feared that the accused would assault her by running his body into hers. Constable [X] used her right hand to place it on the accused’s left shoulder and directed the accused to sit on the fountain edge that was behind him. The accused tried to stand up and approach Constable [X] again and Constable [X] had to use pressure on her right hand to keep the accused from approaching her.

47    The Facts Sheet then details how the Applicant attempted to prevent his wallet being removed by the attending police and resisted being handcuffed by stiffening his body. There is no suggestion that he was violent (as that word would ordinarily be understood) during that process. The incident involving spitting occurred after he had been handcuffed and was being walked towards a marked and caged police vehicle. It was not directed at a Constable X as the summary suggests but at a different officer. The Facts Sheet describes what happened (at AB p 95):

…The accused was swearing loudly ‘Fuck off’ and ‘This is fucked’ and turned his head to the right where Constable [Y] was holding him. Constable [Y] saw a large amount of saliva in the accused’s mouth and saw the accused about to make a spitting motion towards her. In fear of being assaulted by having saliva spat at her, Constable [Y] moved her body to the left with the accused spitting at Constable [Y] but her action in moving to the left prevented her from being hit with saliva and the saliva landed on the ground behind.

48    At [19] the Minister stated that he considered that four of the Applicant’s past offences had been committed against police officers in the course of their duties, which he considered to be serious.

49    At [20]-[30] under the heading “Mitigation and Rehabilitation” the Minister referred to the Applicant’s evidence before the Tribunal that he had undertaken counselling to turn his life around. In respect of that evidence the Minister found (as had the Tribunal) that the Applicant had conflated his attendance at counselling sessions to make it appear as if it was of his own volition rather than a condition of his bond. The Minister found that such behavior gave rise to concern about the Applicant’s progress to rehabilitation in terms of his insight regarding his offending.

50    On the other hand, the Minister accepted that the Applicant no longer had contact with the other people who had been involved in his offending. The Minister noted that since the Applicant had made those statements he had completed his community service, had undertaken some counselling, and had made submissions that he had been and currently was seeking counselling regarding his drinking. There was no mention of the potential relevance of the report of his psychologist, Ms Roman, under this heading.

51    At [31] under the heading “Sentence” the Minister stated:

Mr SABHARWAL received fines, licence disqualification, a Community Service Order and a s. 9 bond which required him to undertake drug and alcohol counselling as penalties for his offending. Such dispositions, being repeated as they are, lead me to conclude that Mr Sabharwal was unable to cease offending.

52    At [32]-[33] under the heading “Community corrections” the Minister referred to advice from a Community Corrections Officer of the NSW Department of Justice that the supervision component of Mr Sabharwal’s order had been terminated early “given Mr Sabharwal appears to be making efforts towards a law abiding lifestyle”. The Minister accordingly found that the Applicant “had made some progress towards rehabilitation”.

53    At [34]-[38] under the heading “Family support” the Minister referred to earlier submissions made on the Applicant’s behalf that his offending around 2014 had been situationally linked to his brother’s moving away from Sydney to Melbourne and the breakup of Mr Sabharwal’s nine year relationship with a girlfriend. The Minister observed that with his brother having moved to Melbourne, “Mr Sabharwal now has a lack of direct family support which heightens his risk of reoffending”. The Minister made no reference to Ms Roman’s report under this heading.

54    At [39]-[44] under the heading “Social Support” the Minister referred to a range of largely positive referee reports provided on the Applicant’s behalf. He recorded a finding that the Applicant “does have some pro-social support networks in the community and they may reduce his risk of offending”.

55    At [45]-[51] under the heading “Insight – disrespect for authority” the Minister stated that “Mr SABHARWAL’s acts of violence towards police officers in the course of their duties demonstrate a disregard for authority and the law”. For the reasons earlier discussed there was no evidence to justify a finding that the Applicant had committed acts of violence, as that language would ordinarily be understood.

56    The Minister however also found that the Applicant’s threatening, abusive and derogatory language and his conduct towards police officers, and in particular female police officers, showed an underlying disrespect. There can be no criticism of that finding nor of the Minister’s finding at [50] that the Applicant’s drunk and obscene threats directed towards a person who had been involved in enforcing an eviction notice (including the threat to rape his mother) were disturbing. The Minister concluded that in light of such instances Mr Sabharwal “has a disrespect for authority and Australian laws and this is indicative of a heightened risk of reoffending”. However, the Minister did not refer to Ms Roman’s observations in her April 2017 report regarding his remorse within those paragraphs.

57    At [52]-[55] under the heading “Remorse” the Minister indicated that he shared the skepticism about the Applicant’s remorse that the Tribunal had expressed.

58    The Minister again made no reference in these paragraphs to the possible relevance of Ms Roman’s report to the Applicant’s remorse.

59    At [56]-[58] under the heading “AAT” the Minister referred to the proceedings in the Tribunal. He observed that the Applicant’s evidence to the Tribunal that he had stopped drinking had been conceded to be incorrect. He had meant he had stopped drinking to excess.

60    The Minister noted at [59]:

The AAT explored Mr SABHARWAL’s possible mental health conditions and accepted that he had commenced treatment with antidepressives and had been referred to a psychologist for treatment and that his treatment had continued while he was in immigration detention. The AAT decided that there was insufficient evidence to make a finding regarding the risk of Mr Sabharwal reoffending and remitted the decision back to the Department.

61    At [60]-[65] under the heading “Psychologist report” the Minister summarised Ms Roman’s most relevant conclusions – including that Mr Sabharwal’s judgement had been impaired by depression, loneliness and social isolation, that it was likely he was suffering from PTSD but that he had demonstrated remorse, that he agreed his behavior had been reprehensible and that he was proactive in seeking help and willing to engage in sometimes difficult introspection. The Minister does not record any findings with respect to those conclusions.

62    At [66] under the heading “Immigration detention” the Minister stated:

Mr SABHARWAL has not reoffended since returning to the community from immigration detention on 25 November 2016. I note that whilst in immigration detention, Mr SABHARWAL’s behavior was satisfactory.

63    The Minister then stated why the Applicant had not satisfied him that he passed the character test (at [67]-[69]):

67.    I accept that Mr SABHARWAL’s offending is linked to his consumption of alcohol, and that Mr SABHARWAL does not intend to get into trouble again. However, as Mr SABHARWAL had not ceased drinking, despite his claim that he had ceased which became a claim of ceasing ‘drinking to excess’, and his claim to have ceased drinking altogether to the psychologist, I do not accept that there is no risk of him reoffending. Should Mr SABHARWAL again drink to excess, it is likely that he will engage in criminal conduct.

68.    Having considered all the available information, in particular Mr SABHARWAL’s criminal history, and the psychological report, I find that there is a risk he will engage in criminal conduct in Australia.

69.    I find that Mr SABHARWAL does not pass the character test by virtue of s. 501(6)(d)(i) of the Act and Mr SABHARWAL has not satisfied me that he passes the character test in that in the event Mr SABHARWAL were allowed to remain in Australia, there is a risk that Mr SABHARWAL would engage in criminal conduct in Australia.

64    On the premise the Applicant had not passed the character test the Minister then considered whether he should exercise his discretion to grant or refuse Mr Sabharwal’s application for a visa.

65    In that regard the Minister gave attention to number of matters under the following headings: “Protecting the Australian Community”; “Risk to the Australian Community”; “Best interests of minor children”; “Expectations of the Australian community”; and “Strength nature and duration of ties to Australia”.

66    The Minister did not mention or discuss any aspect of Ms Roman’s report under any of those headings.

67    The Minister expressed his conclusions as follows (at [101]-[107]):

101.    I considered all relevant matters including (1) an assessment against the character test as defined by s. 501(6) of the Act and (2) all other evidence available to me, including information provided by, or on behalf of Mr SABHARWAL.

102.    In considering whether or not to refuse Mr SABHARWAL’s visa, I gave primary consideration to the best interests of Mr SABHARWAL’s brother’s minor Australian citizen children and have found that their best interests would be best served by not refusing the visa.

103.    Mr SABHARWAL has a serious criminal history in Australia which includes offences against public officials in the course of their duties, and non-citizens who commit such offences should not generally expect to be permitted to remain in Australia.

104.    I find that the Australian community could be exposed to significant harm should Mr SABHARWAL reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr SABHARWAL. The Australian community should not tolerate any further risk of harm.

105.    I found the above consideration outweighed the countervailing considerations in Mr SABHARWAL’s case, including the best interests of his two minor Australian citizen nieces treated as a primary consideration, the impact on family members, church grounds and his social networks. I have also considered the length of time Mr SABHARWAL has made a positive contribution to the Australian community, some ten years and the consequences of my decision for minor children and other family members.

106.    In reaching my decision I concluded that Mr SABHARWAL represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing consideration above.

107.    Having given full consideration to all of these matters, I decided to exercise my discretion to refuse to grant Mr SABHARWAL’s application for a Skilled (Residence) (Class VB) visa under s. 501(1) of the Act.

Grounds

68    Counsel for the Applicant advances two grounds of review – each based on the premise that the Minister’s decision was affected by jurisdictional error because the Minister had misconstrued or misapplied s 501(6)(d)(i) of the Act.

69    Ground 1 of the Applicant’s grounds of review was subdivided into three distinct particularised parts. The parties advanced their written and oral submissions as if each part gave rise to a distinct ground. In order to engage with their respective contentions it is convenient for the Court to follow that structure in its reasons.

70    The Applicant’s second ground is that Minister failed to assess a consideration relevant to the exercise of his discretion – namely his mental health conditions.

Ground 1A

The Respondent’s decision is affected by jurisdictional error because:

1.    The Respondent misconstrued or misapplied s 501(6)(d)(i) of the Migration Act 1958 (Cth) (the Act) for one or more reasons.

Particulars 1A

(i)     At [67] of his reasons for decision, the Respondent concluded that it was “likely” that the Applicant would engage in criminal conduct.

(ii)    The Respondent erred because s 501(6)(d)(i) required him to instead consider whether there was a “real and not fanciful or remote” risk that the Applicant would engage in criminal conduct: Re KLLV and Minister for Immigration and Broder Protection [2016] AATA 896 at [51].

Applicant’s submissions

71    The Applicant refers to the legislative history of s 501(6)(d)(i). He submits that an earlier iteration of the relevant provision had provided that person would not pass the character test if there was a “significant risk” that they would engage in criminal conduct:

The word “significant” was ultimately omitted from s 501(1)(d): Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). This amendment clarified the risk threshold before decision-makers can find that individuals do not pass the character test. “The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision maker to prove that it amounts to a significant risk” (Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), Explanatory Memorandum, 10, [46]).

72    The Applicant submits that the Minister’s statement at [67] that it was “likely” that the Applicant would engage in criminal conduct therefore demonstrated that the Minister had applied an incorrect meaning to what was “a risk” for the purposes of s 501((6)(d)(i).

73    Section 501(6)(d)(i) required the Minister to instead consider whether there was a “real and not fanciful or remote” risk that the Applicant would engage in criminal conduct: KLLV v Minister for Immigration and Border Protection [2016] AATA 896 at [51]. Direction 65 required the Minister’s delegates to apply the statute in those terms. While not binding on the Minister, Direction 65 correctly expressed the law.

Minister’s submissions

74    The Respondent’s written submissions reject that the Minister had fallen into jurisdictional error because he had concluded that it was likely that the Applicant would engage in criminal conduct, when he in fact was required to consider whether there was a “real and not fanciful or remote” risk that the Applicant would engage in criminal conduct.

75    At [21] the Respondent submits:

…The legislation does not quantify a degree or level of risk that must be present before the provision is engaged – other than there being “a” risk … On a plain reading of the legislation, all that is required is that the decision-maker be satisfied that there is “a risk…”

(Emphasis in original)

76    The decision of the AAT in KLLV could not bind the Minister. In so far as Direction 65 also referred to a “minimal or remote chance” that was also not binding on the Minister and could not dictate the construction of the statutory provision.

77    However, in oral submissions (transcript p 21 lines 10-20; p 22 lines 34-41) counsel for the Minister conceded that the Explanatory Memorandum was relevant to the meaning of the provision – “the intention was to reduce the level of risk required to something simply more than minimal or trivial”.

Consideration

78    The issue the Minister was required to address was a narrow one – whether the Applicant had satisfied him that he had passed the character test.

79    Section 501(6)(d)(i) relevantly provides that the Applicant fails the character test if there is “a risk that [he] would engage in criminal conduct in Australia”.

80    The text of s 501 read in its statutory context, properly construed, defines the boundary of the power lawfully available to the Minister. The Minister, having regard to the known circumstances, must evaluate the risk of a person engaging in the future in criminal conduct in Australia.

81    In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed as follows (at 574-575):

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

82    Their Honours’ observations about the task that must be undertaken by a decision maker required to evaluate whether something may or may not occur in the future are not limited to the context in which they arose. They are timeless.

83    Counsel for the Minister properly acknowledged that the terms of the Explanatory Memorandum (the EM) for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) which amended s 501(6)(d)(i) must be relevant to the task of construction. Paragraph 46 of Sch 1 of the EM states that the “intention” of the provision was that “the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”

84    Thus a derisorily small possibility would and could not satisfy the statutory test. However something that is “likely” to occur plainly would be within its terms.

85    The resolution of Ground 1A does not require the Court to identify more precisely where along the continuum of possibility that “a risk” would sit, as discussed in Guo. It does not require reconsideration of KLLV or the drafting of Direction 65.

86    A decision maker’s reasons may reveal that he or she has made an error of law amounting to jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [10]. The Applicant fails to establish that the Minister was in error regarding the statutory test.

87    The Minister’s reasons at [67] do not reveal any misunderstanding of the relevant legal test capable of giving rise to a right of review.

88    Assuming that the Minister did proceed on the basis that the required probability of the Applicant’s re-offending was that of it being “likely”, that standard would be higher, rather than less than that required by the Act. It is inherent in something being likely that there be a risk of it occurring. The Applicant cannot establish that the decision was infected by jurisdictional error on that basis.

89    I am not entitled to proceed on the alternative premise obliquely raised but not developed during oral submissions that the statements at [104] that the Minister “could not rule out the possibility” of the Applicant’s further offending necessarily demonstrated a different misunderstanding of the statutory test: that the Minister had proceeded on the basis that even a negligible, minimal or highly improbable possibility relevantly constituted a “a risk”. No ground of appeal serves as a foundation for that assertion. Leave to amend was not sought.

90    Even if I am in error in holding that the alternative premise cannot be considered without an amendment to the grounds of application having been sought and obtained, the Minister’s reasons are not to be read with an eye attuned to the identification of error. In Coker v Minister for Immigration and Border Protection [2017] FCA 929 (Coker) the statement “the Minister could not rule out the possibility of the applicant reoffending” was accepted to be “in substance a finding that there was a risk of re-offending” by Moshinsky J at [62]. I do not regard that as other than illustrative – each case turns on its particular specific facts. But in the present case the Minister’s initial use of the expression “I do not accept that there is no risk of him reoffending” at [67] (which appears to be the basis of the finding summarised at [104]) was immediately followed at [68] by a finding, positively expressed, of there being a risk that the Applicant “will engage in criminal conduct in Australia”.

91    I am not persuaded that on a fair reading of the Minister’s reasons there is a sufficient indication in those circumstances for this Court to conclude that he had misapprehended the legal meaning of the expression “a risk”.

92    Ground 1A fails.

Ground 1B

The Respondent’s decision is affected by jurisdictional error because:

1.    The Respondent misconstrued or misapplied s 501(6)(d)(i) of the Migration Act 1958 (Cth) … for one or more reasons.

Particulars 1B

(i)    At [67] of his reasons for decision, the Respondent accepted that the Applicant’s offending was linked to alcohol consumption, and concluded that, should the Applicant again drink to excess, he will engage in criminal conduct.

(ii)    The Respondent erred because he failed to consider whether the Applicant would engage in conduct which was criminal, as required by s 501(6)(d)(i) of the Act.

Applicant’s submissions

93    The Applicant submits that individuals only bear criminal responsibility if they commit acts which are legally proscribed as punishable. The Minister fell into jurisdictional error by not identifying what the criminal conduct was which he had found there to be a risk of the Applicant engaging in if he remained in Australia.

94    The Minister also fell into jurisdictional error because he had failed to make a necessary predictive finding about the applicant’s prospective “criminal conduct”. At page 7, the Applicant submits that:

[The Minister] accepted that the applicant’s offending was linked to alcohol consumption, and concluded that, should the applicant again drink to excess, he would engage in criminal conduct (Decision, [67]). The Minister had not gone as far as s 501(6)(d)(i) requires: to consider whether the applicant would engage in conduct which was “criminal” in nature.

95    Drinking to excess was not itself criminal conduct and was not indicative of a want of good character.

96    In oral submissions the proposition was presented as follows (at transcript p 12 lines 1-44):

HIS HONOUR: Are you saying that because it’s possible – one of the – I’m just trying to understand what is being put. And I’m sure that the respondent has to understand what is being put. One of the things that might be said you intend, and I just want to check, is that in fact the Minister made no finding about the likelihood of the applicant’s future offending. Rather, what he did say is that, if the applicant continues – drinks and drinks to excess - - -

MR TULLY: Yes.

HIS HONOUR: - - - then there would be a risk. And that makes no evaluative task – doesn’t evaluate then, the probability at all of the applicant actually drinking to excess. Now, I don’t know whether that’s the point that is being made. In other words, there’s a missing step in the logic and it might be said, for example, that some of the things that have been put against the applicant, actually work in his favour, because he did show that he had continued to drink, albeit in moderation, but no further acts of the same character had occurred.

MR TULLY: Yes.

HIS HONOUR: And he had been out in the community for a long time and no further acts of that kind had occurred. So the idea that if alcohol touches his lips, he becomes unable to control himself, is inconsistent with the evidence. And the report of his psychologist says that he was subject to mental stress and the like, at a particular time and that’s gone now. So the Minister failed to consider circumstances that made him vulnerable at one time, to these kind of episodes that no longer apply. Now, is that what is really being got at here? I don’t really understand.

MR TULLY: Yes. Yes. No. Thank you, your Honour for asking that question. And yes, just to clarify, it’s similar to the way your Honour put it, but slightly deviating from it. The attack under this ground doesn’t depend or is linked to the assessment of risk, in other words, the probability. It is independent of that particular formulation. Your Honour is quite correct that is focuses upon paragraph 67 of the Minister’s reasons for decision, particularly the last line, but also in the preceding reasons, but particularly the last line. If the applicant again drinks to excess, it is likely he will engage in criminal conduct.

Now, I pick up your Honour’s comment in relation to the missing step, because that is precisely what the applicant contends. There is a missing step. In other words, what is the criminal conduct that the applicant will commit in future? The particular reason there, simply is that he will drink to excess – that’s expressed, but the missing step then is, well, if he does drink to excess, what criminal conduct will occur in the future? Now, certainly the Minister has used the language of criminal conduct, but it’s not particularly – it hasn’t been expressed what is the nature of the criminal conduct that the applicant will engage in.

Minister’s submissions

97    The Respondent denies that there is any principled basis for concluding that a decision maker applying s 501(6)(d)(i) must identify the particular criminal conduct there is a risk a person would engage in, submitting at [26] that:

…The proposition is inconsistent with the statutory text, which simply refers to “a risk that the person would engage in criminal conduct”.

(Emphasis in original)

98    The Respondent submits at [26] that, in any event, the Minister’s reasons make clear that what the Minister was concerned about was “the Applicant’s “risk of reoffending” (eg [6]; [31]; [37]; [44]-[46]; [51]; [67]).” There was “no basis to infer that the Minister misunderstood or misapplied the concept of ‘criminal’” as relevant to s 501(6)(d)(i).

99    The Respondent’s written submissions were not responsive to the Applicant’s submissions cited above at [93]-[95]. That is neither surprising nor a subject of criticism – in the extensive written submissions filed on the Applicant’s behalf their import does not stand out. Their significance only became clear during oral argument.

100    In oral submissions the Respondent maintained that the Minister’s reasoning linking the Applicant’s drinking to that risk of his reoffending was justified and involved no error. The Applicant had acknowledged he had continued drinking rather than having stopped entirely when he had been before the Tribunal. On that basis the Minister’s reasons were to be understood as if they included an implied finding that there was a real chance that in the future the Applicant would again drink to excess. The Minister had reasoned, as he was entitled to, that if the Applicant did drink to excess it was likely he would reoffend. That reasoning was not illogical. The Minister had been entitled to make the findings he had made (transcript p 31 lines 4-15).

Consideration

101    The contention that the Minister fell into jurisdictional error for the reasons asserted in Ground 1B(ii) by failing to specify the nature of the criminal conduct that he had concluded there was a risk the Applicant would engage in is without merit. I accept the Respondent’s submission that the Minister’s reasons make clear that what the Minister was referring to was the Applicant’s ‘“risk of reoffending’ (eg [6]; [31]; [37]; [44]-[46]: [51]; [67])”. When at [67] the Minister concluded that “should Mr Sabharwal again drink to excess, it is likely that he will engage in criminal conduct” the criminal conduct therein referred to was to be understood in relation to the task the Minister said he was undertaking at [6]. The Minister’s express concern was whether the Applicant might “reoffend in a similar fashion” (see [104]). I also accept the Respondent’s submission that, in the circumstances of this matter, more detailed specificity was not required. It is unnecessary to consider whether the Minister could have declined to grant the Applicant a visa on the premise that he had a propensity to commit some other kinds of unspecified and unrelated types of offences. That is not what happened and that issue does not arise.

102    I turn therefore to the issue raised by Ground 1B(i). It will be recalled that the Tribunal had found itself unable to make findings regarding the risk of Mr Sabharwal reoffending given the absence of evidence regarding his mental health conditions and the contribution those may have had to his drinking to excess and his past offending. The Tribunal had concluded that there was insufficient evidence to make a finding regarding the risk of his reoffending. It therefore had remitted the decision to the Respondent:

for reconsideration with a recommendation that the decision-maker obtain independent expert evidence in relation to the extent and effect of the applicant’s alcohol misuse and any other mental health conditions that might trigger alcohol misuse.

(at [34])

103    The link between offending and the consumption of alcohol that the Minister made and relies on is as expressed at [67] of the Minister’s reasons:

I accept that Mr SABHARWAL’s offending is linked to his consumption of alcohol, and that Mr SABHARWAL does not intend to get into trouble again. However as Mr SABHARWAL had not ceased drinking, despite his claim that he had ceased which became a claim of ceasing “drinking to excess”, and his claim to have ceased to drinking altogether to the psychologist, I do not accept that there is no risk of him reoffending. Should Mr SABHARWAL drink again to excess it is likely he will engage in criminal conduct.

(Emphasis in original)

104    A person will fail the character test as set out in s 501(6)(d)(i) of the Act if there exists a risk that the person, if permitted to reside in Australia, would in engage in criminal conduct. The existence of that specific risk is an essential precondition to the exercise of the power conferred on the Minister by s 501(1) to refuse a visa application.

105    Upon an application for judicial review of a decision to refuse a visa made or purportedly made in the exercise of that power, legal unreasonableness affecting the formation of the Minister’s conclusion that s 501(6)(d)(i) is not satisfied will go to jurisdiction because the power has been exercised without a factual precondition for its engagement (being the lawful formation of a state of mind) being satisfied: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [23] - [24] per Gummow ACJ and Kiefel J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [37] - [38] per Gummow and Hayne JJ.

106    A conditional finding (such as in [67] of the Minister’s reasons) positing that there is a risk that a visa holder would engage in criminal conduct in Australia should a second circumstance (ie drinking to excess) occur is not thereby necessarily disqualified from serving as a finding of a risk within the meaning of s 501(6)(d)(i). However, as a matter of logic, such a conditional conclusion can only do so if there are express, or necessarily to be implied, findings (a) that there is sufficient probability that the second event will happen; and (b) that there is sufficient probability that the happening of the second event was triggered by the first. As the Applicant submits, a finding of propensity to drink, even to drink to excess, cannot engage s 501(6)(d)(i).

107    Counsel for the Minister accepts that there are no express findings to those effects but submits they are necessarily to be implied.

108    The way a decision has been expressed, read fairly in context, will sometimes show that the decision maker has made a particular finding despite there being no mention of it in his or her reasons.

109    However, a party seeking to contend that an administrative decision maker’s stated reasons should be augmented by implied unstated findings faces a difficult task: Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; (2012) 135 ALD 45 per Robertson J at [18]; Tauariki v Minister for Immigration and Citizenship [2012] FCA 1408; (2012) 135 ALD 41 per Cowdroy J at [43]-[44].

110    In Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 (Muggeridge), Charlesworth J (Flick and Perry JJ concurring) accepted that it would not be inconsistent with s 501(2) if, in the exercise of his discretion, the Minister was to address the question of the likelihood of reoffending by a form of abstract propensity reasoning (ie that a person who has once offended will have a propensity to reoffend): see at [51].

111    However the commencing point in this case differs from that in Muggeridge. Muggeridge concerned an appellant who had failed the character test because he had been sentenced to a term of imprisonment of 12 months or more: s 501(6)(a) and 501(7)(c). The issue at stake in the present matter, as articulated in Ground 1B(i), concerns whether the Applicant failed the character test which necessarily precedes any exercise of the relevant discretion.

112    There may be reason to doubt that the terms of s 501(6)(d)(i) would permit abstract propensity reasoning being used to reach a conclusion regarding that jurisdictional fact. To make a finding about risk of future offending on the basis of conduct insufficiently serious so as to fall within s 501(7)(c) may involve impermissible circularity. Whether or not it would do so may be left for a future occasion where that question needs be answered. It is sufficient for the purposes of these reasons to adopt the conclusions reached in Muggeridge at [43] and [54]-[55] that it is not any assumed abstract reasoning but rather the decision maker’s actual reasoning (in the present case as expressed at [67]) that must be considered when having regard to the critical question of whether a lapse in logic in its reasoning vitiates a decision (Muggeridge at [43]).

113    The difficulty with accepting the submissions advanced on the Minister’s behalf in this matter thus arises not only because, save for the fact of the consequential finding having been made, there is nothing contextually to point to the Minister having made the required findings despite omitting to state any findings regarding them but also because the Minister’s actual reasoning (as set out at [67]) does not, without more, logically require that conclusion.

114    Critically the Minister’s reasons proceed on the basis that the Applicant was not telling the truth when he informed the Tribunal and Ms Roman that he had ceased drinking. On that premise, the Applicant had continued to consume alcohol after his earlier offending. Given that the Applicant, for much of that time, was living within the Australian community where alcohol was readily available it might be reasoned that, having had the benefit of such counselling as the Minister accepts he had and motivated, as the Minister accepts him to have been, by the desire to remain out of trouble, the Applicant had established that he was able to drink without drinking to excess or had learned how to control his drinking to excess so as to avoid engaging in the kinds of ugly anti-social behaviour that had earlier got him into trouble.

115    There may be many paths of reasoning that could have entitled the Minister to have concluded differently and adversely to the Applicant, but no path, in my opinion, is so obvious as it must be assumed. Because the Minister’s conditionally expressed findings were in respect of a jurisdictional fact, the Minister was obliged to give proper and realistic consideration to the assumed link: Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; (2016) 242 FCR 65 (Buchwald) at [72]. There is nothing to suggest that the Minister gave any consideration to what finding or findings he might make in respect of that matter.

116    By addressing a different question than that posed by s 501(6)(d) the Minister fell into jurisdictional error.

117    That error was then incorporated into the conclusion expressed by the Minister at [69]. No basis was suggested by the Respondent to justify the Court differently concluding – and none is self-evidently apparent to it.

118    Ground 1B(i) is made out. Ground 1B(ii) is rejected.

Ground 1C

The Respondent’s decision is affected by jurisdictional error because:

1.    The Respondent misconstrued or misapplied s 501(6)(d)(i) of the Migration Act 1958 (Cth) (the Act) for one or more reasons.

Particulars 1C

(i)     At [69] of his reasons for decision, the Respondent, having considered all the available information, “in particular” the Applicant’s criminal “history” and the psychological report, found that there was a risk that the Applicant would engage in criminal conduct in Australia.

(ii)    This funding was not supported by any rationality prohibitive material or logical factual inference because:

a.    Section 501(6)(d)(i) of the Act required considering whether there was a risk that the Applicant “would” engage in criminal conduct.

b.    The Applicant’s matter had been remitted with a recommendation that the decision-maker obtain independent expert evidence about any mental health conditions which might trigger alcohol misuse by the Applicant;

c.    In his reasons for decision, the Respondent:

i.    accepted that the Applicant’s offending was linked to alcohol consumption (at [67]); and

ii.    appears to accept evidence that the Applicant had mental health conditions; but

d.    The psychological report did not address:

i.    whether the Applicant suffered any mental health conditions which might trigger alcohol misuse, or

ii.    whether there was a risk that the Applicant “would” engage in criminal conduct in Australia.

Applicant’s submissions

119    As a separate and distinct proposition the Applicant submits that the Minister’s conclusion expressed at [69] was not supported by any rationally probative material.

120    Specifically the Applicant asserts that because Ms Roman’s report had not been adequately responsive to the issues that had concerned the Tribunal the Minister was faced with the same problem as had confronted the AAT; the absence of sufficient evidence to properly conduct a risk assessment.

Minister’s submissions

121    Counsel for the Minister submits that there was nothing illogical or irrational about the Minister’s finding. It was one that a logical or rational decision maker could have reached on the material before the Minister: SZMDS.

122    In response to the contention that there was an absence of sufficient evidence for the Minister to have properly conducted a risk assessment the Respondent submitted (at [29]):

Contrary to [the Applicant’s submission], the evidence before the Minister was not “insufficient properly conduct a risk assessment”. Rather the Minister, having considered all the material that had been put before him (including by the Applicant), simply was not satisfied that the applicant pass the character test.

Consideration

123    Putting aside the issue decided adversely to the Respondent in respect of Ground 1B(i) the Minister’s submissions in respect of Ground 1C must be accepted.

124    To the extent a particular finding made or conclusion reached by the Minister along the way towards reaching his decision (such as whether the Applicant’s past offending involved violence) might be thought implausible or wrong, it must be kept in mind that not every error vitiates a decision. An error does not do so unless it is made in respect of a jurisdictional fact or a matter that the statute requires consideration to be given to. As there is no ground asserting jurisdictional error on the basis of the matters identified at [39], [41] and [46]-[47], no further attention need be given to that hypothetical possibility.

125    To the extent the Minister took into account the Applicant’s past conduct in order to inform himself in respect of the evaluative task he was required to undertake, the High Court’s reasoning in Guo leaves room for no doubt that he was entitled to do so.

126    Aside the matters discussed under Ground 1B the Court is not persuaded that the decision made by the Minister was one that a logical or rational decision maker could not have reached on the material before him.

127    The Applicant’s contention that because Ms Roman’s report did not address (at least in specific terms) the matters that had concerned the Tribunal and led it to remit the matter to the Minister required the Minister to similarly conclude that he could not make a finding cannot be accepted. That would prioritise what the Tribunal considered to be determinative over that which the Minister concluded to be so. The Minister was not bound to act in accordance with the Tribunal’s direction or recommendation.

128    Ground 1C is rejected.

Ground 2

The Respondent failed to assess a consideration relevant to the exercise of his discretion to refuse to grant the Applicant’s visa application under s 501(1) of the Act.

Particulars

(i)    In his reasons for decision at [70]-[107], the Respondent failed to consider the Applicant’s mental health conditions.

Applicant’s submissions

129    The Applicant’s submissions with respect to Ground 2 commence with the uncontentious proposition that s 501 requires a two-step process: first a finding as to whether an individual passes the character test; and second whether to exercise the discretion to refuse the visa application. Counsel then submits as follows:

Here, the Minister failed to assess a consideration relevant to the exercise of his discretion to refuse to grant a visa under s 501(1). Decision-makers must consider the particular circumstances of an individual’s case. The applicant’s mental health clearly arose as a relevant consideration because his matter had been remitted from the AAT with a recommendation to investigate the link between the applicant’s mental health and alcohol misuse.

Minister’s submissions

130    The Minister rejects that analysis and submits that no jurisdictional error occurred (at [33]-[34]):

33.    First, the contention that, in exercising his discretion, the Minister failed to consider the Applicant’s mental health conditions, is erroneous. The Minister stated that he took into account all the evidence available to him – which includes the psychologist report provided by the Applicant, the only document dealing with the Applicant’s mental health (CB 21 [70]; 25 [101]). Also, the Minister referred extensively to the psychologist’s report in assessing whether the Applicant passed the character test (CB 20 [60] – [65]). The Minister’s reasons for exercising his discretion included an assessment of the risk to the Australian community (CB 22 [77] – [79]). At [77], the Minister referred back to and relied on his reasons at [20]-[69] which, as noted, include a discussion of the psychologist’s evidence. The Tribunal’s reasons must be read as a whole: Baker v Minister for Immigration and Citizenship [2012] FCA 145 at [43]-[45], and the mere fact that the Minister did not expressly refer to the Applicant’s mental health and/or the psychologist’s report, in the part of his reasons dealing with the exercise of discretion, does not mean that the Minister somehow forgot about or ignored that material.

34.    Secondly, there was no statutory obligation on the Minister to consider, in the exercise of his discretion under s 501(1), the Applicant’s mental health (in the sense of it being a mandatory relevant consideration: see Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [8] per Basten JA, Beazley P agreeing at [1]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41). Section 501(1) of the Act is unfettered in its terms, and the Minister’s power is broad: see NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [6]-[8]; Stretton at [70]. Also, there is no obligation on the Minister to consider specific factors personal to the visa holder of applicant: Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [71]-[74]; Muggeridge v Minister for Immigration and Border Protection [2017] FCA 730 at [38]; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [128]. Thus, while the Applicant’s mental health may be a matter that the Minister might permissibly take into account, he was under no obligation to do so: cf Lo at [8]. It should also be noted that the Applicant advanced no specific claims to the Minister about his mental health, other than by providing the psychologist’s report itself.

131    In the course of oral argument the parties were referred to the recent decision of Coker. In that case Moshinsky J set aside a decision of the Assistant Minister made pursuant to s 501CA of the Act in circumstances in which the Assistant Minister’s reasons for cancelling a visa of a person serving a sentence of imprisonment had failed to refer to a favourable decision of a parole board with respect to a visa holder. I gave leave to the parties to file short supplementary submissions following the hearing of the present application. The Minister’s submissions were as follows (at [2]-[5]):

2.    First, unlike the present case, Coker concerned a decision by the Assistant Minister for Immigration and Border Protection made pursuant to s 501CA of the Act. Any limitation on the nature or scope of the decision-making power identified by Moshinsky J in Coker (eg. At [42]-[49]) is in the context of s 501CA, not s 501(1).

3.    Secondly¸ in the present case Ground 2 concerned an alleged failure to consider a relevant consideration (the Applicant’s mental health). The Minister contended that this was not a mandatory relevant consideration. Coker did not consider the question of what amounted to mandatory relevant considerations. Rather, at [45]-[57], Moshinsky J considered a ground alleging that the Assistant Minister had failed to consider a submissions and evidence put forward by the Applicant. That ground raises a different legal issue from any in the present case.

4.    Thirdly, in Coker, the Assistant Minister failed to even refer to the Parole Board’s decision or the Applicant’s submissions about it (eg. At [35]; [38]; [52]-[53]). That led Moshinsky J to find jurisdictional error by the Assistant Minister, in relation to the ground identified above (eg. At [57]). The present case is very different. The Minister did consider, and discussed in depth, the psychologist’s report (eg. At [60]-[65]; [77]). Also, unlike in Coker, the Applicant in the present case made no submissions or claim to the Minister about his mental health. He simply sent the psychologist’s report to the Minister and said no more about the issue (see eg. 130-136; 141; 155-157).

5.    Finally, Moshinsky J’s finding in relation to the Assistant Minister’s conclusion about the risk of re-offending (at [62]) does not directly bear upon the matters agitated by the Applicant in this case.

Consideration

132    The principles that govern judicial review of discretionary powers conferred under statute are far from new. There have been significant refinements of the principles (following Li as to how unreasonableness operates as a relevant criterion) but their contemporary shape already may be recognised in the observations of Gibbs J (as he then was) in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119:

It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.

133    In this case the Minister submits that the breadth of the discretion conferred on the Minister by s 501(1) stands in the way of a reviewing court proceeding on the basis that a particular factor is a matter that he is required to consider.

134    The Respondent cites Minister for Immigration and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 (Huynh) and Muggeridge v Minister for Immigration and Border Protection [2017] FCA 730 as authority for the proposition that in exercising his discretion there is no requirement that the Minister give consideration to any factor specific to a visa applicant.

135    I note that the Full Court in Muggeridge (Charlesworth J, Flick and Perry JJ concurring) allowed an appeal from the decision at first instance relied upon by the Minister. In doing so Charlesworth J referred to the apparent, but as yet unresolved tension between Huynh and Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 at least in so far as Huynh stands for the proposition now submitted for by the Minister.

136    At [26] Charlesworth J cited the following cases as relevant to that question: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [33]; Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [22] (Allsop CJ, Flick and Griffiths JJ); NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [27];SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [18]; Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; (2015) 235 FCR 88 at [37]-[38]; Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [64] and AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 243 FCR 451 at [49]-[54]. The Full Court stated (at [31]) it would leave the resolution of that tension for a case in which the outcome depended on it – holding that whether or not the Minister had been obliged to proceed on a particular basis, having committed himself to do so in a way that was acutely fact dependent, his reasons then having demonstrated a want of logic, his decision must be set aside (at [55]-[56]).

137    This case also can be decided without resolving those tensions or expressing a view as to whether, in light of subsequent decisions, Huynh remains binding on a single judge of this Court.

138    Coker establishes that in an appropriate case ignoring significant relevant material can justify a reviewing Court drawing an inference that the decision maker constructively failed to undertake his or her statutory task.

139    As a matter of comity I should apply the ratio of Coker unless I am persuaded that his Honour was plainly wrong.

140    In Coker, Moshinsky J had to decide whether the Assistant Minister had failed to have regard to a report of the Parole Board which had been given to him on the applicant’s behalf. If the Assistant Minister had ignored it his Honour then had to decide whether in consequence it could be concluded that the Assistant Minister failed to carry out his statutory task under s 501CA of the Act.

141    The power under s 501CA is not the same as conferred by s 501 but both confer a wide discretion. In my opinion their difference does not reduce the authority of Moshinsky J’s reasoning regarding how judicial review principles may be engaged when some fact or matter which has been asserted to be of significance has been ignored by a decision maker exercising a very wide discretion.

142    In Coker, despite there having been a statement in the Assistant Minister’s reasons that he had considered all of the applicant’s representations his Honour found (at [52]) that the Assistant Minister had not in fact considered the report of the Parole Board:

In my view, the applicant has established that the Assistant Minister failed to consider the submissions and information provided by Holding Redlich about the Parole Board’s decision to release the applicant on parole. The Statement of Reasons did not refer to the submissions or information concerning the decision of the Parole Board. Given the potential relevance of this material to the issue of the applicant’s risk to the Australian community, an issue discussed at [38]-[42] of the Statement of Reasons, one would expect it to have been referred to if taken into account. Thus the failure to refer to the material at all supports an inference that it was overlooked.

143    His Honour did not then reason that the Assistant Minister’s failure to refer to that potentially relevant material required the Court to conclude that the decision maker had fallen into jurisdictional error. His Honour’s reasoning was more nuanced. It first addressed why he was not prepared to approach the question in that way:

46.    In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf), McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) cited (at [82]) the following passage from Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179:

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

47.     In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT), Robertson J (at [97]), after setting out the above passage, explained: “Thus merely to ignore ‘relevant material’ does not establish jurisdictional error.” His Honour continued: “This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.” This passage from Robertson J’s judgment in SZRKT was relied on in the written submissions of both the applicant and the Minister in the present proceeding.

144    At [49] Moshinsky J referred to the reasoning of Kenny, Griffiths and Mortimer JJ in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (MZYTS).

145    In MZYTS the Full Court had held that the failure of a tribunal to have regard to relevant material could give rise to an implication that the tribunal had constructively failed to exercise its jurisdiction to form the state of satisfaction required by the Act.

146    The like failure of the Assistant Minister to have regard to the report of the Parole Board was held by Moshinsky J to have justified a similar inference being drawn (at [55]-[57]):

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

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

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

147    In the circumstances, the Assistant Minister was held to have constructively failed to exercise his jurisdiction.

148    I take the ratio of Coker to be that while a decision-maker’s unexplained or unreasoned failure to take account of a significant factor objectively relevant to his or her task will not of itself constitute a jurisdictional error, such a failure can, in an appropriate case, justify a Court drawing an inference that a decision maker has constructively failed to exercise his or her jurisdiction. Understood in that way the observations of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (see above at [143]) do not need to be reconciled with the outcome in Coker – there is no relevant inconsistency.

149    Equally on that premise there is no relevant inconsistency between that reasoning and which of Huynh or Moana should be accepted. Accordingly there is no basis for me to find that Moshinsky J was plainly wrong.

150    I am also unpersuaded by the First Respondent’s Supplementary Submissions at [3] that Coker ought to be distinguished as involving a different legal issue.

151    Counsel for the Minister submits that the facts of present case are very different to those considered in Coker, submitting at [4] that, in contrast to the Assistant Minister failing to even refer to the Parole Board’s decision in the present case, “the Minister did consider, and discussed in depth, the psychologist’s report (eg at [60]-[65]; [77]).”

152    That submission is entirely unpersuasive.

153    All that paragraphs [60]-[65] (under the heading “Psychologist report”) do is to provide a summary of the contents of Ms Roman’s report. Those paragraphs involve no discussion at all, let alone discussion in depth, of any aspect of her report.

154    Nothing is even “noted” by the Minister in respect of Ms Roman’s report in those paragraphs. No findings are recorded.

155    Flick J held in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 (Buadromo) at [42] that if there was a failure to give proper, genuine and realistic consideration to a factor relevant to the task asserted to have been undertaken by the Minister, the decision would be flawed by jurisdictional error.

156    The Minister’s reasons, in so far as they concern whether Mr Sabharwal passed or failed the character test, conclude at [69].

157    Having found that Mr Sabharwal did not pass the character test, the second half of the Minister’s reasons then address whether he ought to exercise his discretion to refuse Mr Sabharwal a visa.

158    The Minister’s discussion of that subject commences at [70]. It concludes at [107].

159    There is no reference to, let alone discussion in depth or analysis of any aspect of Ms Roman’s report recorded in any of those 37 paragraphs, including [77].

160    Nowhere in the Minister’s reasons is there a mention of any possible relevance of Ms Roman’s report to the statutory discretion the Minister was exercising.

161    I reject that there is a relevant difference because, unlike in Coker, the Applicant had made no submissions about his mental health; “he simply sent the psychologist’s report to the Minister and said no more about it” (“First Respondent’s Supplementary Submission” at [4]).

162    Such submissions are not to be considered in the abstract but rather, as in Muggeridge and Coker, having regard to what actually occurred.

163    In the actual circumstances applying, given the Tribunal had found itself unable to make findings in the absence of such material, and had remitted Mr Sabharwal’s case back to the Department with recommendations as referred to earlier in these reasons, the suggestion that the Applicant needed to explain to the Minister why Ms Roman’s report had been provided before it was required to be treated by the Minister as of significance borders on the absurd.

164    In the light of what actually occurred including the history of Mr Sabharwal’s matter in the Tribunal, the circumstances in which Ms Roman’s report came to be produced and the absence of any mention of her report by the Minister in his reasons from [70] onwards, I am satisfied that the Applicant has established that notwithstanding the assertion at [101] that consideration had been given to “all other evidence available to [him], including information provided by or on behalf of Mr SABHARWAL”, the Minister did not consider Ms Roman’s report when exercising his discretion under s 501(1).

165    The Minister’s failure to refer to Ms Roman’s report in his reasons from [70] onwards given (a) the circumstances in which that report came into existence; and (b) that if Ms Roman’s conclusions were to be accepted then they were relevant to the statutory task the Minister stated he was undertaking supports the inference that it was overlooked.

166    If I am wrong that it was overlooked, I am in any event satisfied that it was not considered in the sense that proper, genuine and realistic attention was not given to it: Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 341 ALR 179 at [43]; Buchwald at [72]; Buadromo.

167    I am satisfied that the Minister’s unexplained or unreasoned failure to take account of a significant factor objectively relevant to his statutory task, while not of itself a jurisdictional error, in the light of the Minister’s statement that he had taken all of the material provided by the Applicant into account, in this case justifies me drawing an inference that the Minister constructively failed to exercise his or her jurisdiction.

168    While the discretion is broad it must be exercised for the purposes for which the power is granted. As Kirby and Callinan JJ stated in Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at 503-504:

[W]here a discretion is conferred by statute, it must be exercised in accordance with the language by which it is conferred and to achieve the purposes for which the power has been granted. To talk of “absolute” judicial discretions, at least where such discretions are conferred by an Australian statute, involves a contradiction in terms.

While those remarks relate to discretions conferred in relation to the exercise of judicial power, they apply equally to administrative decision makers.

169    Ground 2 is made out.

170    As Grounds 1B(i) and 2 have been made out, the decision of the Respondent to refuse the Applicant the visa he seeks must be quashed and the Minister ordered to reconsider the Applicant’s visa application according to law.

171    The Applicant should have his costs as agreed or as taxed.

Associate:

Dated:    22 January 2018