FEDERAL COURT OF AUSTRALIA

Whittaker v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 248

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed save for the relief sought in paragraph 6 under the heading “Details of relief sought” and paragraph 6 of “Grounds of application”;

2.    The claim for relief sought in paragraph 6 under the heading “Details of relief sought” and paragraph 6 of “Grounds of application” be stood over for mention to a date to be fixed by the Court.

3.    Costs reserved.

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

REASONS FOR JUDGMENT

Derrington J:

Introduction

1    This matter has an extremely sorry procedural history. The responsibility for that does not lie particularly at either party’s feet. At its heart this is an application by Mr Ziyaad Whittaker (Mr Whittaker) pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) for review of a “migration decision” made by the Assistant Minister for Immigration and Border Protection (the Minister) not to revoke the cancellation of Mr Whittaker’s residency visa. The matter was commenced in this Court, perhaps incorrectly, and has twice been referred to the Federal Circuit Court (the FCC) in relation to certain procedural matters. It has twice been returned to this Court and, on this occasion, the parties agree that the substance of the application can and ought to be determined.

Procedural history

2    The matter was commenced on 26 April 2017 by way of an Originating Application in which Mr Whittaker sought an extension of time under r 31.23 of the Federal Court Rules in which to bring proceedings for the review of a decision made under s 501CA(4) of the Act pursuant to which the Minister refused to revoke the cancellation of Mr Whittaker’s Permanent Resident Visa 857.

3    At the first Case Management Hearing in relation to this action, the solicitors for the Minister submitted that this Court did not have jurisdiction to hear and determine the matter although the FCC did. The absence of jurisdiction in the Federal Court to review a ministerial decision was, apparently, the consequence of a legislative oversight which has subsequently been rectified by amendment. At that Case Management Hearing, I accepted the Minister’s submissions as to jurisdiction which were clearly correct and the proceedings were transferred to the FCC pursuant to s 32AB(1) of the Federal Court Act 1976 (Cth).

4    Subsequently, and with the consent of all parties, the FCC transferred the matter back to this Court pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth), which had the effect of vesting jurisdiction in this Court to hear and determine the action (see Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188 at [14]).

5    The matter was set down for hearing in relation to the application for leave to extend time for making the application and in relation to the substantive application. Written submissions were filed and a hearing occurred in relation to both issues on 12 September 2017. It should be mentioned that at that time a matter was pending before the High Court of Australia – Falzon v Minister for Immigration & Border Protection [2018] HCA 2 – which involved a question as to the purported exercise of judicial power by the Minister. A similar constitutional ground was raised as part of Mr Whittaker’s application. The parties agreed that, to the extent to which the application before the Court included that ground, it would not be dealt with and it would await the outcome of the High Court’s determination.

6    Not long after the hearing on 12 September 2017, my Chambers received written submissions from the Minister as to the competency of the Court to hear and determine the application for an extension of time. The Minister submitted that this Court had no power to extend time in relation to Mr Whittaker’s application. Although there was some doubt about this, the parties agreed that the matter ought to be again referred to the FCC which undoubtedly did have the power to extend the time for the making of the application. On 26 October 2017, an order was made by this Court that the matter be transferred to the FCC.

7    Subsequently, on 12 December 2017, Judge Jarret of the FCC made an order extending the time within which Mr Whittaker may bring the application. That was, apparently, made by consent. This Court was informed of the same at the commencement of this year.

8    In or around 19 January 2018, the parties agreed to orders in the following terms:

1. For the purposes of the further hearing of this matter, the issues for determination are those contained in the Amended Draft Originating Application for Review of a Migration Decision excluding those paragraphs raising the Constitutional issues presently before the High Court in the matter of Falzon v Minister for Immigration and Border Protection [2017] HCA Trans 230 (Falzon).

2. That the submissions by each of the parties made at the hearing before Derrington J on 12 September 2017 on the question of the issue of Constitutional writs be taken as the submissions of the respective parties for the purposes of the determination of the application save in respect of that part of the application raising the issues in Falzon.

3. The hearing of that part of the Amended Draft Originating Application for Review of a Migration Decision concerning the issues which are the subject of the appeal in Falzon be adjourned to a date to be fixed.

9    It follows that what is now required is that the Court determine the matters which are the subject of the substantive application to review the Minister’s decision.

10    It is important to note that whilst this matter has been progressing, Mr Whittaker has been held in immigration detention. For most of that time, he has been held at Christmas Island. That being so, he has been unable to attend many of the matters which have been necessary for the prosecution of his claim. Fortunately for Mr Whittaker his mother, Mrs Whittaker, has undertaken nearly all of the necessary work on his behalf. She has attended the Case Management Hearings and interlocutory hearings, and she appeared at the hearing of the matter. With the consent of the Minister and by the leave of the Court she was permitted to address the Court on behalf of her son in respect of the substantive application.

The relevant legislative provisions as they applied in this case

11    The “migration decision” in respect of which the application was made on 17 January 2017. It was a decision of the Minister under s 501CA of the Migration Act 1958 in which it was determined not to revoke an earlier decision to cancel Mr Whittaker’s Class BW Subclass 857 Regional Sponsored Migration Scheme visa.

12    The decision to cancel the visa had been made on 23 March 2016 and pursuant to s 501(3A) of the Migration Act. That section provides:

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

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

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

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

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

13    Relevantly, Mr Whittaker did not pass the character test by reason of the operation of s 510(6)(a) (substantial criminal record) because (as per s 501(7)(c)) he had been sentenced to a term of imprisonment of more than 12 months. He does not contest that the decision made to revoke his visa was incorrectly made or that s 501(3A) did not apply to him.

14    Mr Whittaker made submissions to the Minister requesting that he exercise his power under s 501CA(4) to revoke the original cancellation decision under s 501(3A). The power of the Minister to revoke a cancellation decision arose under s 501CA which relevantly provides:

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

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

…

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

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

(b)     the Minister is satisfied:

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

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

15    On 17 January 2017, the Assistant Minister sent a letter to Mr Whittaker advising him of his decision not to revoke the original cancellation decision and advising him that his visa remained cancelled such that he did not have a valid visa to remain in Australia.

16    Mr Whittaker originally filed his application for review in this Court believing it had jurisdiction under s 476A subject to the granting of an extension of time in which to make the application. At the time of the making of the Minister’s decision the power of the Federal Court to hear applications for review was limited by s 476A of the Migration Act which provided:

476A     Limited jurisdiction of the Federal Court

(1)     Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a)     the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or

(b)     the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c)     the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or

(d)     the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

17    Relevantly, s 476A(1)(c) did not refer to the decision of a Minister under s 501CA although it seems to be generally accepted that this was a legislative oversight which has subsequently been corrected. For present purposes and in the absence of power in the Federal Court to review the decision not to revoke the cancellation, the decision was reviewable by the Federal Circuit Court under s 476 which provided:

476     Jurisdiction of the Federal Circuit Court

(1)     Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

(2)     The Federal Circuit Court has no jurisdiction in relation to the following decisions:

(a)     a primary decision;

(b)     a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

(c)     a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;

(d)     a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

18    Prima facie, the contested decision in this case falls within the scope of this section. However, by reason of the transfer of these proceedings from the FCC pursuant to s 476A(1)(a), this Court now has jurisdiction with respect to it. Additionally, as the FCC has extended the time in which the application can be made, all that is left to determine is the substantive application.

Merits of the application

19    As a result of the order of 12 December 2017 granting leave to extend time for the filing of the application, the matter should now be dealt with on the basis that the draft Amended Originating Application for Review (“the Amended Application”) has been filed and the grounds on which Mr Whittaker seeks relief are those contained in that document as well as the written outline of submissions as supplemented by the oral arguments. A general deficiency in the Amended Application is that whilst it contains a sprinkling of words commonly used to raise administrative review grounds, the thrust of the assertions are directed towards Mr Whittaker’s disagreement with the merits of the Minister’s decision. Those assertions include allegations that the Minister did not pay sufficient attention to certain matters Mr Whittaker believes ought to have attracted greater consideration. For instance, it is asserted that insufficient importance was given to his familial ties in Australia and on his mental health and risk of regression if deported. Other assertions are to the effect that the Minister made some incorrect findings of fact. In particular, Mr Whittaker cavils with the conclusion that he would pose a threat, albeit a small one, to the Australian community. Similar complaints relating to the weight which the Minister gave to various factors comprise the bulk of the oral and written submissions made on Mr Whittaker’s behalf.

20    Under this country’s Constitutional arrangements this Court is not permitted to undertake any reconsideration of the “merits” of the Minister’s decision or determine whether it was the correct decision on the basis of the available material. The Commonwealth Parliament has vested in the Minister (or the Assistant Minister as in this case) the right and obligation to make this decision under the Act. The scope of the Court’s power to review a ministerial decision of this type is to ascertain whether or not the decision involves some “jurisdictional error”. That will occur in relatively limited circumstances such as where the decision-maker has gone beyond the scope of the power granted by the Parliament or has engaged in any of what is known as “procedural unfairness”. However, where the decision-maker does not make a decision outside the limits of the functions and powers conferred on that person, or does something they lack the power to do, there is no relevant jurisdictional error for the court to remedy (Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at 141 [163]). That is so even if the decision-maker has made a decision with which other reasonably minded people might disagree. The role of the Court is to ensure that the decision was made within the scope of the decision-maker’s power. In that respect there is no need in this case to enter upon the continuing discussion as to what precisely constitutes a jurisdictional error. That said, the relevant error would arise if the decision-maker were to ask themselves the wrong question; to ignore relevant material; to rely upon irrelevant material; and, in some circumstances, to make an erroneous finding. As mentioned, a breach of the rules of natural justice would also constitute a renewable error. Recently, the learned authors of Judicial Review of Administrative Action and Government Liability (6th ed) have identified the 10 “categories” of jurisdictional error (at pp 23-24) which are said to exist.

Background to the revocation of the visa

21    The applicant arrived in Australia in September 2005 at the age of 17. He migrated here with his parents and, it appears, other members of his extended family. At all relevant times he retained his South African citizenship and his residence in Australia was pursuant to a Class BW Subclass 857 Regional Sponsored Migration Scheme visa.

22    On 5 November 2009, the applicant pleaded guilty in the District Court of Queensland to the offence of doing grievous bodily harm with intent to do grievous bodily harm. The offence was identified by the learned sentencing judge as being serious and a period of 8 years imprisonment was imposed.

23    On 23 March 2016, the Minister cancelled Mr Whittaker’s visa as he was required to do under s 501(3A)(b) of the Migration Act because Mr Whittaker had a “substantial criminal record”. That statutory definition was met because Mr Whittaker was “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” (see ss 501(6)(a) and 501(7)(c)).

24    In late March or early April 2016, Mr Whittaker made representations to the Minister requesting he revoke the cancellation of the visa. The power of the Minister to do so arose under s 501CA(4). That section provides:

The Minister may revoke the original decision if:

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

(b)    the Minister is satisfied:

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

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

25    Whilst this section engages the Minister (or the Assistant Minister as it is in this case) in a singular exercise of power, that exercise involves a number of stages. The first, as appears in subparagraph (a), is that the relevant person has made a representation in accordance with the section. That has been satisfied in this case. The second is that which appears in subparagraph (b), being that the Minister reaches a degree of satisfaction about either of the matters in subparagraph (i) or (ii). In this case the requirement of subsection (i) was not possible given that the applicant had served a relevant term of imprisonment. Therefore, the requirement in subparagraph (b) could only be met if the Minister were satisfied that the criterion in subsection (ii), being that there was another reason why the original decision should be revoked, had been established. On any ordinary reading of the legislation the statutory process would seem to be abundantly clear and unequivocal. The Minister’s task is to determine whether he is satisfied of the matters in 501CA(4)(b) and if so satisfied the discretion to revoke is enlivened. On that construction the exercise of discretion is the final stage of the exercising of power under s 501CA(4). However, the decision in Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548, suggests otherwise. In that case it was held that, if the Minister was satisfied there was another reason to why the original decision should be revoked, there was no residual discretion to exercise. Whilst that decision is binding on this Court, on the basis of the reasoning of the Full Court it is unlikely to make little practical difference because the matters which a Minister would take into account in ascertaining her or his satisfaction of the matters in subparagraph (b)(i) or (ii) would be directly relevant to the ultimate exercise of discretion.

The Assistant Minister’s reasoning

26    In his reasons for decision (which are mostly attached to Mrs Whittaker’s affidavit) the Minister correctly identified the provisions pursuant to which the decision was to be made. Having accepted that Mr Whittaker had made representations in accordance with the Act the effective issue at hand was whether or not he was satisfied of the matters in s 501CA(4)(b)(i) or (ii).

27    The Minister determined that Mr Whittaker did not pass the character test in s 501 of the Act. He found that Mr Whittaker had been sentenced to a term of imprisonment of 12 months or more and, for that reason, had “a substantial criminal” record as defined by s 501(7)(c). Consequently, by reason of the operation of s 501(6)(a), Mr Whittaker could not pass the character test. There seems to be no dispute by Mr Whittaker that he did not pass the character test under s 501 and there is no challenge to the Minister’s decision on that basis.

28    It follows that the Minister’s decision turned upon the operation of s 501CA(4)(b)(ii). That subsection imposed the condition that the Minister be satisfied “that there is another reason why the original decision should be revoked”.

29    The Minister noted that Mr Whittaker had advanced a number of reasons as to why the original decision should be revoked. They included that he had lived in Australia for 11 years since the age of 17; that he had pursued formal studies and various rehabilitative courses in prison and believed he was rehabilitated such that he does not pose a threat to the Australian public; that he has strong family ties to Australia such that all but one of his immediate family and his extended family reside here; that he has significant community ties to Australia; that he is reliant upon his immediate family in Australia for ongoing mental health and rehabilitation support; that he has no viable source of family support in South Africa such that he will have difficulty engaging appropriate professional psychological counselling there; and, that his family emigrated from South Africa after he was violently assaulted at the age of 15.

30    In his decision the Minister considered each of the above matters within the compass of a variety of topics. He also considered the issue of the protection of the Australian community arising out of the commission of the offence in respect of which Mr Whittaker was convicted. Further, he noted that it was one of the more serious offences and that the sentencing judge had found the offence was coldly premeditated. He also observed that the offence had been committed under the influence of drugs and alcohol at a time when Mr Whittaker was experiencing a strong sense of paranoia. The eight year sentence imposed upon Mr Whittaker was a further indication to the Minister of the seriousness of the offending. That is particularly so when it is appreciated that incarceration is a last resort in the sentencing hierarchy.

31    The Minister further considered whether Mr Whittaker posed a risk to the Australian community through reoffending. In particular, he had regard to any mitigating factors given the steps which Mr Whittaker had undertaken to reform and address his past behaviour. He noted some of the causal factors which might have contributed to Mr Whittaker’s behaviour as well as the numerous steps taken by him towards rehabilitation.

32    In conclusion on this topic the Minister said:

53.    Whilst acknowledging the steps Mr WHITTAKER has taken towards rehabilitation and the opinions of a number of other people confirming his progress, I note that his ability to avoid further offending has not been tested in the community, as he was transferred to immigration detention immediately following his release from prison on 4 April 2016.

54.    Taking into consideration all of the abovementioned factors, including the very serious nature of Mr WHITTAKER’s offending, the mitigating factors associated with his personal background and mental health, his commitment to rehabilitation, his remorse in relation to his offending and empathy for his victim and the fact that his rehabilitation has not yet been tested in the community, I find there is still some likelihood that Mr WHITTAKER will reoffend, albeit a low likelihood. I consider that further offending of a violent nature by Mr WHITTAKER could result in great physical harm to members of the Australian community and therefore must be regarded as a very serious risk.

33    As a result the Minister determined he was not satisfied there was another reason why the original decision should be revoked for the purposes of s 501C(4)(b)(ii).

34    The Minister’s written submissions in this case focused upon the overall evaluation of whether there was “another reason why the original decision should be revoked” which is in accordance with the Full Court’s decision in Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548. There, at [30] the Full Court cited with approval the observations of North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 [39] in relation to the proper application of s 501CA(4):

In other words, the Minister engages in an evaluative process to decide whether or not to revoke, regardless of whether he must first consider a lower threshold test, or if he proceeds directly to the final evaluation.

35    And a little later Collier J (with whom Logan and Murphy JJ agreed) said:

[31] I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).

[32] In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]–[39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.

36    Were the matter not foreclosed by the above decision I would have thought that a process whereby, independently of all of the circumstances of a case, the decision maker is required to turn their mind to whether there is another reason or reasons why the cancellation should be revoked would enhance the entitlements of an applicant in the decision-making process to a more rigorous consideration of their particular circumstances. The ordinary reading of the words of s 501CA(4)(b)(ii) suggest that the Parliament intended the decision-maker turn their mind independently to the possible reasons why the original decision should be revoked before embarking upon a general consideration of all of the circumstances before them. Nevertheless, the difference in these two approaches might be more chimerical than real.

The grounds of review

37    In the Amended Application, Mr Whittaker has set out a number of alleged deficiencies in the Minister’s decision. In general terms, the complaints are not expressed in legal terms or in terms which are directed towards specific grounds of judicial review. That is not said in any pejorative way as it is obvious that the document was drawn by a person without legal qualifications. However, given that the applicant was unaware of the correct legal basis on which an administrative decision might be vitiated, the complaints articulated in that document fail to focus on the relevant part of the Minister’s exercise of power. In this case any legitimate complaints must be directed at the Minister’s determination that he was not satisfied there was “another reason why the original decision should be revoked” and I will treat the complaints as being directed to this issue.

38    By a late amendment, Mr Whittaker has included in the Amended Application a Constitutional ground to the effect that s 501(3A) is invalid because it purports to confer judicial power upon the Minister for Immigration because it affords him a power to impose punishment for the commission of a criminal offence in addition to that imposed by the Court. The correctness or otherwise of that proposition was pending before the High Court of Australia in Falzon v Minister for Immigration & Border Protection [2018] HCA 2 when this matter was argued. Consequently, that part of the matter was hived off from the remainder of the application and must be dealt with subsequently.

39    From the assertions made in the Amended Application it is possible to identify the essence of the various complaints (apart from the Constitutional issue) as follows:

(a)    that in making his decision the Minister focussed too heavily upon the seriousness of Mr Whittaker’s offence to the diminishing of other matters such as the importance and relevance of rehabilitation which is at the core of the justice system;

(b)    that the Minister placed insufficient reliance, indeed minimal reliance, on other issues associated with Mr Whittaker’s family ties and the impact of his deportation on the rest of the family;

(c)    that the Minister gave insufficient consideration of the detrimental impact upon Mr Whittaker’s mental health if deported;

(d)    that the Minister wrongly concluded Mr Whittaker’s contribution to the community had been somewhat limited and his incarceration had been a cost to the community. It is asserted he contributed to the community whilst incarcerated and was rehabilitating himself;

(e)    that various emails which had been sent to the NCCC and his case officer relating to Mr Whittaker’s detention at Villawood, were not considered by the Minister;

(f)    although not a ground of review, it is asserted that the Court should engage in “judicial activism” to overcome the perceived attitude of the Minister;

(g)    that the Minister failed to take into account the matters referred to in Direction No.65, Migration Act 1958, made under s 499 of the Act and, in particular, he failed to consider what he should take into account when determining whether or not a person is of good character when that person has a criminal record;

(h)    that the Minister wrongly concluded that Mr Whittaker could still pose a threat, albeit a small threat, to the Australian community despite the fact that this had not been tested in the community. It is suggested the conclusion that the risk of the applicant to the community had been untested was irrational;

(i)    that the Minister failed to take into account that the Department of Correctional Services in Queensland had considered Mr Whittaker was a low risk to the community and the department’s conclusion was inconsistent with the Minister’s;

(j)    that insufficient consideration was given to Mr Whittaker’s mental health and that it ought not have been assumed he would receive adequate mental health treatment in South Africa;

(k)    that the Minister failed to have regard to the far reaching consequences, effect and emotional cost to Mr Whittaker’s family.

40    In the course of the written and oral arguments these matters were expanded upon by Mrs Whittaker on behalf of her son. Unfortunately, both the written and oral arguments generally went to the weight which the Minister had given to particular issues rather than any legal basis which undermined the decision made. Where a decision-maker in the position of the Minister has taken into consideration a particular factor, this Court has no power to review the weight which has been given to it in reaching the ultimate conclusion. The Parliament has vested in the decision-maker the entitlement to attribute relevant weight to the factors affecting their deliberation and this Court is not entitled to review the decision on the basis that insufficient or excessive weight has been given to such matters.

The first ground – the focus on the seriousness of the applicant’s offence and insufficient consideration of the applicant’s rehabilitation

41    In both written and oral submissions Mr Whittaker advanced this matter on a number of occasions. He asserted that the Minister focused too heavily upon the seriousness of the offence for which he was sentenced rather than the considerable (and one might add commendable) rehabilitation which he has undergone.

42    However, the difficulty for Mr Whittaker in relation to this ground is that it impermissibly asks the Court to undertake a “merits review” of the Minister’s decision, which is something it is not entitled to do. Section 501CA(4)(b)(ii) does not specify the matters the Minister must take into account in determining whether or not there is another reason why the original decision should not be revoked. It is largely for the Minister to decide what factors he should consider when determining that question (see Foster v Minister for Customs and Justice (2000) 200 CLR 442; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375). Moreover, in the evaluative process of determining whether another reason exists, the weight given to the various factors is a matter for the decision maker.

43    It follows that the applicant’s first ground of review – that the Minister focussed too heavily upon the seriousness of the applicant’s offence – is not a complaint about the decision this Court is entitled to entertain.

44    That said, it can be added that the Minister did consider at length the submissions concerning Mr Whittaker’s rehabilitation and the steps which he had taken in this regard. See particularly the Minister’s decision on this issue at paragraphs 12, 33 and 46 – 54 of his reasons. The Minister specifically noted that Mr Whittaker had, whilst in prison, commenced studying for a Bachelor of Science degree majoring in psychology and undertook a variety of study programs which were on offer to improve his situation and, further, that he received counselling. He also identified Mr Whittaker’s assertions that he had been rehabilitated. In this respect it is fairly clear that the Minister did take into account Mr Whittaker’s rehabilitation. It may be that Mr Whittaker’s real concern under this heading is that the Minister did not give sufficient weight to the evidence of his rehabilitation. That, of course, is not something in respect of which the Court is permitted to substitute its own opinion.

45    There is nothing in the weighing process engaged in by the Minister in relation to this which even remotely approaches the issue of irrationality.

46    Therefore, even if the complaint as to the Minister’s reasons was a legitimate complaint, which it was not, it would fail on the facts.

Second ground – that Minister placed insufficient reliance on matters associated with family ties and the impact on the family of the applicant’s deportation

47    This ground of complaint also fails. The complaint is one of the weight of the Minister’s consideration of the identified factors and that is not an appropriate subject matter for judicial review in the circumstances of a decision under s 501CA(3).

48    Moreover, in his reasons, the Minister paid substantial attention to Mr Whittaker’s social and family ties in Australia and the impact that the cancellation of his visa would have on his family. See in particular the matters considered by the Minister at paragraphs 12, and 13 – 19 (under the heading “Strength, nature and duration of ties”) and the statement in paragraph 18 where the Minister said:

I note Mr WHITTAKER’s statement that the issues associated with his potential deportation have caused his parents considerable stress and anxiety. I note also that the impact on Mr WHITTAKER’s mother in particular is described further in representations made by his brother, Jurande, his mother’s employer and his mother herself.

The Minister subsequently accepted that the non-revocation of the cancellation of Mr Whittaker’s visa would cause his immediate family to experience serious emotional hardship. Even if such a ground of review was open, it is patent that it could not be sustained in this case.

49    In his written submissions, Mr Whittaker relies upon various international treaties or conventions to which Australia is a signatory. He claims those documents had to be taken into account in some way. However, none of those treaties or conventions have been incorporated into Australian domestic law with the result that they are not required to be followed or even considered by the Minister when exercising power under s 501CA(4).

Third ground - insufficient consideration of the detrimental impact upon the applicant’s mental health

50    Again, this complaint is not open on an application of this nature. It is merely a complaint as to the weight the Minister gave to the issue of the impact upon Mr Whittaker’s mental health if he were deported. Accordingly, this ground also fails.

51    Moreover, it is beyond contention that the Minister did take this factor into account when considering the issues under s 501CA(4)(b)(ii). He gave specific consideration to the difficulties which Mr Whittaker would encounter in relation to his mental health and the treatment available in South Africa. He identified that the deportation of Mr Whittaker to South Africa would be “detrimental to his mental health and increase the risk of suicide” and that he may experience emotional hardship. Again, even if it were open for Mr Whittaker to raise this as a ground of review it must fail on the facts of this matter.

Ground four - wrong conclusion as to contribution to the community

52    By this complaint Mr Whittaker seeks to cavil with a finding of fact made by the Minister that his contribution to the community had been limited and that his incarceration had been a cost to the community. Determinations such as those, which are essentially findings of fact, are matters wholly within the scope of the power of the Minister to make. This ground also is not justiciable and must fail.

53    The paragraphs of the reasons of the Minister where this finding of fact was made are paragraphs 22 to 24. They provide as follows:

22.    I find that Mr WHITTAKER made some positive contribution to the community through his employment in the fast food and labouring fields between 2006 and 2008. However, given the relatively short duration of this employment, and that at least some of it appears from the available evidence to have occurred on a part-time basis while Mr WHITTAKER was a student, I find that the extent of Mr WHITTAKER’s positive contribution to the community has been somewhat limited. I have also taken into account that more than half of his 11 years in Australia has been spent in prison, representing a cost to the community rather than a contribution.

23.    I have considered the effect of non-revocation upon Mr WHITTAKER’s immediate family in Australia and accept that those persons would experience serious emotional hardship.

24    I find that Mr WHITTAKER has made some positive contribution to the community and I have taken this into account. I have also recognised the effect of non-revocation for this family and other social networks he has formed in Australia.

54    It follows that the Minister’s decision considered Mr Whittaker’s overall contribution to the community. That Mr Whittaker had made a positive, albeit somewhat limited, contribution, although not justiciable on an application of the present type, was a determination clearly open on the evidence before the Minister in any event.

55    As a result this ground of review must also fail.

Ground five - the failure of email material to be considered by the Minister

56    It is not easy to understand the nature of this complaint. It seems to be that certain emails which were sent to the Villawood Immigration Detention Centre were not provided to the Minister for consideration as part of Mr Whittaker’s application. Apart from anything else, the Minister could only ever be required to consider the material which was put before him. It seems that the material in question was not part of the material Mr Whittaker sought to have the Minister consider (or there is no evidence that this was the case) and as such no jurisdictional error can arise from the alleged failure to consider it.

57    This ground of review must also fail.

Ground six - judicial activism

58    One of the recently added “grounds” to the Amended Application is that the Court should indulge in “judicial activism” as a mechanism for overcoming the perceived intransigent attitude of the Minister. It sufficies to say that the statement does not amount to a ground of review.

Ground seven - failure to take into account a section of Direction No 65, Migration Act 1958, direction under s 499

59    Mr Whittaker’s complaint in this respect appears in paragraph 1 under the heading in the Amended Application of “Grounds of Application”. It focusses upon paragraph 5 of s 2 of Annexure A to Direction No 65. Annexure A is headed “ANNEX A – application of the character test”. The complaint is that the direction required the decision-maker when considering whether a person was of good character, to consider all the relevant circumstances of the particular case and that a person of ill repute by reason of past criminal conduct may nonetheless, on an objective examination later in life, be shown to be reformed and of good character. In that respect reference is made to the comments of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 83 ALD 411, 423 at [34]. In the Amended Application it is asserted that the Minister failed to take into account Mr Whittaker’s conduct as a prisoner during this incarceration when assessing his character.

60    There is no need to consider this ground of complaint at any length for it too fails. The difficulty for Mr Whittaker is that he failed a character test by reason of s 501(6)(a) or (c) being that he had been sentenced to a term of imprisonment of 12 months or more. That had the effect that the Minister was bound to cancel his visa. The paragraph of Direction No 65 on which Mr Whittaker relies is not relevant to the Minister’s determination as to whether he should revoke that cancellation decision. That paragraph relates to decisions under s 501(6)(c)(i) and (ii) which are concerned with an actual assessment of a person’s character pursuant to s 501(6)(c). Here, by reason of Mr Whittaker’s incarceration, he was effectively deemed to have failed the character test. There was no error in this case by the Minister not applying that part of the Direction on which Mr Whittaker relies.

61    It can also be observed that the Minister considered Mr Whittaker’s character at length as revealed in his reasons. This ground is also unsustainable and must fail.

Ground eight - that the applicant posed a small threat to the Australian community

62    The gravamen of this complaint appears to be that the Minister believed Mr Whittaker could still pose a threat, albeit a small one, to the Australian community despite the fact that this had not been tested because he had been continually incarcerated or detained. On that basis Mr Whittaker seems to complain that the Minister could not have reached that conclusion. It also seems to be suggested that the Minister failed to take into account that Mr Whittaker was released on bail pending his sentencing and that this should have been taken into account when considering whether he was a threat to the community.

63    This ground too must fail. There is nothing which suggests that the Minister was obliged to take into account the fact that Mr Whittaker was granted bail pending his sentencing in ascertaining the extent of the threat he posed to the community. Clearly he was not. He was also not obliged to set out in his reasons all of the evidence which was before him and which he considered (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 at [46]) and it is not possible to draw an inference that he did not consider this matter merely because it is not specified in the reasons (SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]; Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [45]).

64    The Minister did take into account the risk which Mr Whittaker posed to the Australian community and reached the conclusion that there was a slight risk. In doing so he was entitled to consider the material which was made available and he did so. The applicant seemed to assert that his behaviour in the period whilst he was awaiting trial which showed he did not pose a risk to the community was a claim which the Minister did not take into account. After a consideration of the material it is not possible to detect that that assertion was included in a “claim” advanced, or an integer of such a claim. Nor did such an assertion arise as a result of other findings of fact by the Minister. It can also be observed that an accused’s behaviour in that limited period could hardly carry any significant weight such that any omission to consider it would not be meaningful.

65    The remainder of this asserted ground of review might be regarded as an allegation of illogicality or irrationality. Again, this cannot be sustained and must be rejected. The conclusion of a state of satisfaction, which is a condition precedent to the exercise of power, will be infected with jurisdictional error where that state of satisfaction is irrational, illogical and not based on findings or inferences of fact supported by logical grounds (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-9 at [130] and [133]). That is, it is a conclusion that no rational or logical decision maker could arrive at on the same evidence. That is ascertained by asking whether it was open to the decision maker to engage in the process of reasoning in which it did engage and to the make the findings which it did. It is not every illogicality or irrationality which will give rise to a jurisdictional error. However, when such irrationality or illogicality occurs at the point of satisfaction (SZMDS [119]), or in relation to a critical finding which led to the ultimate conclusion (cf Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, 221 at [55]) an error of that type will arise.

66    It is not immediately clear from the written and oral submissions what Mr Whittaker asserts in relation to this matter. From one perspective it seems that the complaint is about the finding that he still posed a risk to the community, albeit a small one. However, there is no illogicality about the Minister concluding that a person who has been sentenced to prison for in excess of eight years for causing grievous bodily harm with intent to do so, may still pose a risk when released. Indeed, by itself, a finding to the contrary might well appear to be naïve. In saying that I do not doubt the honesty of Mrs Whittaker’s belief that her son is fully rehabilitated and poses no risk to the community. However, ultimately that is not the question. The question concerns the manner in which the Minister reached his conclusion that a small risk existed and no error has been shown to exist.

67    It might be that the concern of Mr Whittaker in this respect is the conclusion of the Minister that his ability to avoid reoffending has not been tested in the community. In support of that it seems to be asserted the Minister reached an irrational conclusion because Mr Whittaker did not re-offend whilst in prison and he did not reoffend whilst on bail. However, neither of these arguments could, in the circumstances, found a conclusion that the Minister’s conclusion as to the risk he posed, or the ultimate conclusion that there was no good reason why the cancellation decision should be revoked, was in error. The concern of the Minister was the risk Mr Whittaker posed to the community upon his release from incarceration. It was not whether he was of good behaviour whilst in prison. Whilst Mr Whittaker’s behaviour in prison may have been considered, it was not something which had to be taken into account. Additionally, there is nothing to support the proposition that if he did not reoffend in the prison environment he would not reoffend in the community. But more pointedly, where he has been convicted of a serious violent crime it is rational and logical to commence with the assumption that there is a real risk to the community when he is released, unless there are substantial matters which overcome that prima facie position. Here, there is nothing on the face of the Minister’s reasons to suggest there was any illogicality or irrationality in the manner in which it was concluded Mr Whittaker still posed a risk to the community, even if there was only a low likelihood of that happening (cf Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132; [10], [41]). The Minister also considered that further offending of a violent nature by Mr Whittaker could result in great physical harm to members of the Australian community. Similarly, there was no illogicality in concluding that the low risk of reoffending had not been tested in the community at large. That was an axiomatic fact given that Mr Whittaker had been immediately taken into immigration detention on his release from prison.

68    On the face of the reasons of the Minister this ground of review cannot be sustained.

Ground nine - insufficient consideration to the applicant’s mental health and level of treatment available in South Africa

69    For the reasons specified above this Court is not entitled to consider questions of the weight which the Minister gave to various considerations. That power is vested in the Minister by the legislature. No available ground of review arises in that respect.

70    As to the second limb of this complaint it would appear that Mr Whittaker has misunderstood the Minister’s reasoning. It seems to be said that the Minister concluded the treatment of mental health in South Africa is as freely available as it is in Australia when required. However, no such finding was made by the Minister. Indeed, at paragraph 31 of his reasons the Minister noted the representations from Mr Whittaker’s treating prison psychiatrist confirming that he may not be able to access appropriate health services in South Africa and that this would be detrimental to his mental health. There is no suggestion the Minister concluded Mr Whittaker would be able to receive adequate psychiatric help. What the Minister found was in the following terms:

I accept that Mr WHITTAKER may experience emotional and financial hardship if removed from Australia and separated from his immediate family. However, as a citizen of South Africa he will have access to government support service equal to that of other citizens of that country, as well some support (albeit limited) from his relatives there.

71    In essence, the Minister was observing that, as a South African citizen, Mr Whittaker would be able to obtain government support service equal to that of other citizens of that country.

72    The Minister’s finding was open and no error has been shown to exist in this respect.

Ground ten - failing to have regard to the far reaching consequences, effect and emotional cost to the applicant’s family

73    This complaint appears at the paragraph numbered 4 under the heading of “Grounds of Application” in the Amended Application. Its gravamen is that the Minister failed to take into account the adverse effects of Mr Whittaker’s deportation on the applicant’s family and, in particular, the emotional costs to the family.

74    Such a ground could only succeed in circumstances where it could be implied in the Migration Act, and in particular s 501CA(4), that there was an obligation on the Minister to take into account the adverse impacts identified. No such implication arises. For that reason alone this ground must fail.

75    Moreover, it is apparent the Minister did consider the impact on Mr Whittaker’s immediate family were he to be deported. After considering the close ties and connections between Mr Whittaker and his family the Assistant Minister concluded:

23.    I have considered the effect of non-revocation upon Mr WHITTAKER’s immediate family in Australia and accept that those persons would experience serious emotional hardship.

76    Therefore, even if the Minister were bound to consider the impact upon Mr Whittaker’s family, which he was not, that matter was taken into account. This ground also fails.

Ground eleven – consideration of “Character” identified in the Ombudsman report

77    No apparent ground of review arises in relation to the matters identified in “Ground 5” of the amended draft originating application. It appears to be a reference to the manner in which “character” ought to be assessed although that is not relevant to the present application. To the extent it identifies the importance of rehabilitation, it raises no arguable ground of review. In any event, the Minister carefully considered the applicants admirable attempts at rehabilitation.

Other matters raised in the written and oral submissions

78    Both written and oral submissions were advanced at the hearing of this matter by, and on behalf of, Mr Whittaker. Whilst some of those submissions have been referred to above, other matters raised were not within the scope of the grounds in the Amended Application. Despite that, it is appropriate they be considered for the purposes of ascertaining whether any valid grounds of review might exist.

Alleged denial of natural justice

79    One additional argument raised by Mr Whittaker appears to be that there was a denial of natural justice because the Minister failed to consider certain contentions advanced by him. This ground fails because no contention was identified which was not taken into account by the Minister. Mr Whittaker’s argument seemed to focus upon the fact he was granted parole by the Queensland Correction authority and this ought to have established that he was not a threat to the Australian community. However, that was a matter which was carefully considered by the Minister (paragraph 49 of the reasons) and it is not permissible for this Court to examine the sufficiency of the weight given to that factor.

80    The applicant relied upon the decision of Moshinsky J in Coker v Minister for Immigration and Border Protection [2017] FCA 929, which had some factual similarity to the present matter. There, the applicant for review of a decision under s 501CA(4) not to revoke a cancellation decision had been jailed and released on parole. The applicant had made extensive submissions to the Assistant Minister to the effect that the circumstances of the granting of parole should be taken into account in establishing that there was another reason why the original decision should be revoked. However, in his decision the Minister did not refer to the decision of the Parole Board to release the applicant. It was contended the Assistant Minister “failed to carry out his statutory task, by failing lawfully to consider significant evidence provided by the applicant in support of a claim, or alternatively by failing to consider a submission worthy of serious consideration” (at [45]). Moshinsky J held that it had been established the Assistant Minister had failed to consider the submissions and information provided to him in relation to the Parole Board’s decision to release the applicant on parole. That material was relevant to the issue of whether the applicant was a risk to the Australian community and one would have expected it be taken into account. That being so it was apparent the Assistant Minister failed to consider an argument advanced to him in relation to the decision to revoke the cancellation decision.

81    As has been discussed previously in these reasons the factual similarity between the circumstances in Coker and the present case is limited. In order to succeed on the ground that there was a constructive failure to exercise the jurisdiction or to accord natural justice it would have to be shown that there was a contention, submission or representation which was “critical and relevant” to the applicant’s case and not taken into account. In this case there is nothing to suggest there was any submission or contention (“critical and relevant” or otherwise) made to the Minister which was not considered. In particular, it is wrong to suggest the fact the applicant had been paroled from his eight year term of imprisonment was not considered. At paragraph 49 of the reasons of the Minister it is stated:

I have noted Mr WHITTAKER’s statement that the Queensland Parole Board’s decision to grant him parole implies that the board believes that he no longer poses a threat to the community – and that the supervisory and other conditions associated with his parole will aid his ongoing recovery.

82    Unlike the position in Coker, here the Minister expressly dealt with the claim that the basis of the granting of parole was indicative that Mr Whittaker did not pose a risk to the Australian community. Here, given the content of paragraph 49, Mr Whittaker is not able to establish that the Minister failed to engage in any an active intellectual engagement in respect of the representation (Parker v Minister for Immigration and Border Protection [2017] FCAFC 115 at [20]) relating to the granting of parole. Having applied the appropriate intellectual engagement the court cannot assess whether the weight given to the consideration was appropriate. As was said by Moshinsky J in Coker (at [55]) “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.”

Other extenuating circumstances

83    Some of Mr Whittaker’s written and oral submissions went to various extenuating circumstances not advanced to the judge who had sentenced him. However, such matters are irrelevant to this application given that there is nothing to suggest they were advanced to the Minister for the purposes of the making of his decision.

84    Mr Whittaker also made submissions in the written outline which might be taken as an assertion that the Minister only gave “lip service” to some of the representations made to him. Unfortunately, that submission was not developed and the matters he says were not properly considered were not identified. Whilst he is correct to submit that giving only “lip service” to a submission is not sufficient, the onus is on him to identify how it can be concluded that a matter was not properly considered. Here, the Minister identified at paragraph 7 that he had considered Mr Whittaker’s representations and the documents which he had provided in support of those representations (see also paragraphs 55 – 58 of the Minister’s reasons). In the usual course, the Court is required to take that statement at face value (see Parker v Minister for Immigration and Border Protection [2017] FCAFC 115 at [22] – [23]) unless an applicant can demonstrate it is not reliable. Here, there is nothing to suggest the statement should not be accepted and there is nothing on the face of the reasons which might undermine its veracity. That is particularly so given that the requirement to “consider” is only a requirement to be mindful of a matter in an active and intelligent manner. Here, the Minister has addressed many of the arguments made by the applicant and has identified, on a number of occasions, that he has considered Mr Whittaker’s representations and supporting documentation. Mr Whittaker has not identified any claim, submission or integer of a claim advanced by him which was not considered by the Minister.

Reliance on summaries

85    The written submissions also raise in a general way the allegation that the Minister did not actually take the representations and material into account himself but relied upon summaries prepared by departmental officers. There is nothing in the evidence to support this argument. In any event, a decision-maker only needs to take into account, at best, the matters or issues which relate to the decision. As such briefing papers or summaries can be prepared for the decision-maker by others. So long as the relevant issues or matters are considered, it does not matter whether the decision-maker considered the primary documents.

Bias

86    The applicant further asserts that the decision of the Minister was affected by apprehended bias and prejudice. The allegation is made on the basis of comments allegedly made by the Hon Peter Dutton MP who was the Minister of Immigration and Border Protection at the relevant time. Perhaps the most significant statement by the Minister was to the effect that he was pleased that a large number of non-citizens who had committed crimes and who might further re-offend had been removed from the country. It seems the Minister indicated he intended to increase the numbers of removals in the coming year.

87    It is to be kept in mind that, in this case, it was the Assistant Minister who made the decision under challenge and not the Minister. The Minister was not a proper party to the proceeding given the exercise of power was by the Assistant Minister and, at the commencement of the hearing of this matter, was removed as a party. Even on the assumption that the Assistant Minister was somehow influenced by the Minister’s statements, it is difficult to identify even a prima facie case of apprehended bias on the face of the reasons. In the first instance, the reasons of the Assistant Minister are complete, detailed and clear. On their face they do not suggest the appearance of a person who has already formed an opinion that cannot be changed or altered regardless of the arguments which are presented or which may be presented (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507). The reasons which were given set out the various matters which were considered and they reveal a process of evaluation of those matters. Whilst some might reach the view that, in the light of the substantial steps taken by Mr Whittaker to rehabilitate himself, the decision was harsh or hard, there can be no doubt that, on the available material, the Minister was entitled to reach the conclusion that there was a risk, albeit low, of the applicant reoffending and engaging in violent behaviour which might result in great physical harm to members of the Australian community. The fact that a Minister places significance on the protection of the Australian community does not raise any suspicion or even a suggestion of bias or prejudice.

88    The other matters in the written submissions related to the Constitutional issue or other matters which are not grounds of review.

Conclusion

89    It follows from the above that the Amended Application must fail. Neither the grounds alleged in the Amended Application nor the written or oral reasons have raised any sustainable ground which vitiates the Minister’s decision. The Minister’s reasons do not suggest the existence of any jurisdictional error upon which any judicial review might be founded. Similarly, a consideration of the nature and scope of Mr Whittaker’s complaints reveals that it is not possible to fit the gravamen of those complaints into any legitimate ground of review. Whilst it is not the duty of the court to provide free legal advice to litigants in person, the court does have a duty to “assume the burden of endeavouring to ascertain the rights of parties that are obfuscated by their own advocacy” (see Neil v Nott (1994) 121 ALR 148 at [98] and Tomasevic v Travaglini (2007) 17 VR 1000). In this matter, it is not possible to detect in the material filed or in the substance of the arguments advanced any ground of review which would justify the granting of leave.

90    For the above reasons the Amended Application must be dismissed save in relation to the grounds that relate to the action in the High Court in Falzon v Minister for Immigration and Border Protection [2018] HCA 2.

Costs

91    The parties will be entitled to be heard in relation to the appropriate costs order.

Associate:

Dated:    9 March 2018