FEDERAL COURT OF AUSTRALIA

Isley v Minister for Immigration and Border Protection [2018] FCA 632

ORDERS

THE COURT ORDERS THAT:

1.    The application for review be dismissed.

2.    The Applicant pay the Respondent’s costs in accordance with sch 3 of the Federal Court Rules 2011 (Cth)

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

REASONS FOR JUDGMENT

(Revised from the transcript)

KERR J:

1    The Applicant in these proceedings is a 55 year old citizen of the United Kingdom, born on 12 May 1962. Mr Isley first arrived in Australia as a four year old but returned to the United Kingdom until his family relocated to Australia permanently in 1971. But for one overseas holiday, he has remained in Australia all of his life since the age of nine. Indeed, the short trip he took to Noumea was not regarded by Immigration as leaving Australia. It was a round trip and not relevantly a departure. Mr Isley has a brother and sister in Australia who have become Australian citizens. He has no close relatives that he can identify remaining in the United Kingdom.

1    On 18 December 2012 the Victorian Court of Appeal confirmed Mr Isley’s conviction in relation to two charges of indecent assault of a child under the age of 16, and five charges of incest, all of which involved the daughter of his former de facto partner. The Court’s reasons address those circumstances in more detail; it is sufficient by way of introduction to note that the sentence imposed by the Court of Appeal for those offences was imprisonment for a period of eight and a half years with a non-parole period of five years and eight months.

2    As is explained in [23] and [24] of these reasons, some time later, Mr Isley’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act).

3    In October 2015 Mr Isley was notified that his visa had been cancelled. The notice extended an invitation to Mr Isley to apply to the Minister for Immigration and Border Protection (the Minister) seeking revocation of the cancellation of his visa. Mr Isley responded to the Minister’s invitation later the same month and subsequently supplied details in support of his request.

4    His request was not processed in a timely way. Officials responsible for its processing did not brief the Minister in respect of his request until August 2017. One ground of appeal in these proceedings relates to that delay.

5    On 10 October 2017 the Minister made a decision not to revoke the cancellation of Mr Isley’s visa.

6    Mr Isley then commenced proceedings in this Court seeking relief under s 476A of the Migration Act. The relief sought is that the Minister’s decision be quashed; that the decision be remitted to the Minister for reconsideration according to law; and orders for costs.

7    The Grounds of Mr Isley’s application are as follows:

1.    The Minister's assessment pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) as to whether there was “another reason why the original decision should be revoked” miscarried because the Minister failed to give proper consideration to Mr lsley's claims in the following respects.

2.    The Minister did not consider that non-revocation meant that Mr Isley would serve out his full sentence of eight years, rather than a shorter parole period because he was eligible for parole after 5 years and 8 months; and that he would be incarcerated in medium security, rather than low security, prison.

Particulars

The claims were made at CB3 [13]; CB9-10 [60]; CB65; CB249-354 and CB266- 269; relevant correspondence evidencing the claims was annexed to the Department’s submissions of the Minister; and the Minister did not consider the claims.

3.    The Minister did not consider:

a.    the hardship of non-revocation upon Mr Isley; and

b.    Mr lsley’s specific claims about the hardship that non-revocation would cause him, including that non-revocation:

i.    Would be highly detrimental to his health and wellbeing (at CB278 [32] the claim is only described; it was not considered);

ii.    Would risk causing him to have a heart attack (the claim was made at CB68- 71, and not considered);

iii.    Would cause hardship because he suffered from depression (the claim was made, inter alia, at CB71, and not considered); and

iv.    Would have the effects on his parole and place of custody as set out in paragraph 2 above.

4.    The Minister did not consider:

a.    The hardship of the non-revocation on Mr lsley's fiancée, extended family and friends; instead, the Minister considered “the effect of non-revocation on Mr ISLEY’s immediate family” (CB277 at [27]); merely “noted” his Australian citizen sister and brother (CB 276 at [20]); and in conclusion referred to “the hardship his family and social networks endure” “as described above” (CB285 [86]).

b.    Mr lsley’s specific claims about the hardship of non-revocation on his fiancée and his extended family, that:

i.    His fiancée, and her family, needed his support in relation to his fiancée’s mother’s cancer illness (the claim was made at CB266-267, recorded in the Department’s submission to the Minister at CB6 [35], and not considered);

ii.    He was needed to help [care] for and support the mentally disabled nephew (sic – brother) of his fiancée: (the claim was made at CB264; recorded in the Department’s submissions to the Minister at CB6 [391], and not considered);

iii.    He was needed at the forthcoming wedding of his de facto step-daughter (the claim was made at CB264 and not considered);

iv.    His fiancée suffered clinical depression (the claim was made at CB264, recorded in the Department’s submissions to the Minister at CB6 [341], and not considered); and

v.    His de-facto step daughters suffer depression (the claims were made at CB264 and not considered).

Background

8    Mr Isley’s family arrived in Australia to settle in 1971. Their port of arrival was Perth. Subsequently, the family moved to Melbourne where they established a residence at Thornbury. Later they moved to Coburg. Mr Isley’s account of his childhood (CB 68-69) indicates that he attended the Brunswick Technical School. Tragedy befell the family and the young Mr Isley when, as a 15 year old boy, the family purchased their first home. Whilst moving in, his father collapsed and died without warning. Despite that setback, Mr Isley went on to achieve significant technical qualifications, including acquiring a pilot’s licence. He later achieved responsible employment as production control supervisor with Mack Trucks.

9    It is uncontentious that he was highly regarded by those that he had friendships with or worked with. Various references that Mr Isley provided in his application to the Minister confirm that. I mention only two. At CB 92, there is a reference from a senior Australian Federal Police aviation officer. It attests to Mr Isley’s capacity as a pilot and his bravery and technical skills. At CB 88 there is reference from a former employee of Mack Trucks in which the writer attests to the good regard in which had held, and still held, Mr Isley.

10    Sometime around 1998 Mr Isley met and formed a relationship with a woman who then was the single mother of an 11 year old girl. Their relationship lasted for approximately five years. For reasons that Mr Isley there accounts, which include his former partner’s dependency on alcohol, that relationship broke up.

11     A few months later Mr Isley met the woman who later became his fiancée. His fiancée was also a single mother. She had three girls. Her girls are now young adults. They are now all into their twenties at least. It is uncontentious that his relationship with his fiancée has been enduring and strong. It is also uncontentious that Mr Isley formed a deep attachment with his fiancée’s three girls – one which they continue to reciprocate. There is no suggestion of anything inappropriate in that regard.

12    It appears that for at least at some time Mr Isley did not live with his fiancée but rather with his fiancée’s parents and, in that regard, he also became a significant figure in the life of his fiancée’s brother who suffers from certain unspecified mental disabilities.

13    Mr Isley’s account of the circumstances of his life at that time was that he had been happy to remain a father figure to the daughter of his former partner and that, on occasion, he had provided transport for her to various locations. His willingness to do so was known to and accepted by his fiancée.

14    I will return to Mr Isley’s description of what he says were the circumstances that later eventuated but it is uncontentious that on 27 August 2008, some four years after he had begun his relationship with his fiancée, he was questioned by the police regarding allegations made by the daughter of his former partner of sexual offences occurring between June 2003 and June 2004 (CB 74).

15    Subsequently, Mr Isley was indicted in relation to those allegations of sexual misconduct. A separate indictment was filed against him in relation to one count of production of child pornography, which was alleged to have occurred on 7 September 2006, which the Minister was entitled to infer (on Mr Isley’s account) was at a time after he had commenced his new relationship.

16    Approximately seven years after the events that were the subject of those charges, on 25 March 2011 after a jury trial Mr Isley was convicted of all of the offences upon which he had been indicted. On 8 April 2011 he was sentenced to a significant period of imprisonment.

17    Mr Isley appealed that decision. On 18 December 2012 the Court of Appeal, constituted by Nettle, Redlich and Osborn JJA overturned his conviction for the most serious of the offences on which he had been indicted, but confirmed his conviction in relation to two charges of indecent assault of a child under the age of 16, and five charges of incest, all of which involved the daughter of his former de facto partner: ISJ v The Queen [2012] VSCA 321; 38 VR 23. It is unnecessary to canvas all of the specific details of what, by any account, were serious charges. It is sufficient to refer to what the Court of Appeal indicated by way of its assessment of the circumstances and seriousness of Mr Isley’s offending at [74] and [77] of its reasons:

74    The appellant was convicted of serious sexual offences which involved a gross breach of trust, offending continuously over a 12 month period. He exhibited no remorse. The individual sentences of three years fixed on the charges of invest were well within a reasonable exercise of the sentencing discretion. As the appellant’s conviction for rape is to be quashed he must be re-sentenced on the alternative charge of incest (Charge 6). We would impose a sentence of three years on Charge 6. We accept the respondent’s submission that, having regard to the seriousness of the offences, the orders for cumulation were in fact merciful. Neither the total effective sentence nor the non-parole period fell outside the range of a sound exercise of the sentencing discretion. Accordingly, we would confirm all other individual sentences and the orders for cumulation, Charge 6 now being the base sentence, making a total effective sentence of eight and a half years’ imprisonment. We would fix a non-parole period of five years and eight months.

…

77    In 7 September 2006, the appellant exchanged emails with his co-offender, HD, who described a female child engaging in sexual activity and referred to a link to a video clip of the sexual activity. The appellant and HD discussed having sex with a 13 year old girl in graphic detail and filming the experience. The email exchange constituted an offence under s 68(1) of the Crimes Act 1958.

    (Footnote omitted.)

18    Having regard to his conviction for the most serious of the offences for which he had been imprisoned, the Court of Appeal reduced the Applicant’s sentence to a period of eight and a half years’ imprisonment with a non-parole period of five years and eight months.

19    It is uncontentious in these proceedings, although the method of its calculation is not before the Court, that the earliest date he thereby became eligible for parole was 23 November 2016 (CB 268-269).

20    After his conviction, Mr Isley became concerned that his citizenship status might affect the way in which he would be dealt within the prison system. On 30 January 2013, Mr Isley wrote to the Department of Immigration and Citizenship (the Department) advising that he wanted to be proactive in his rehabilitation. He wrote that it had become apparent to him that his residency status had the potential to become an obstacle in that regard (CB 65). He gave as an example of the problems his status was already causing him that when his fiancée’s father, to whom he had been close had passed away, he had been refused permission to attend the funeral on the grounds that his permanent resident status made him a potential flight risk. He had been also informed that he would not be allowed to progress to an open prison as part of his sentence progression because they viewed him as potential deportee.

21    He advised the Department that he was engaged to his partner of ten years who was also an Australian citizen. He said they intend to get married in the near future, whilst he was incarcerated. He pointed to his good behaviour whilst free on bail and the fact that this was his first offence; he had no prior convictions of any kind. Mr Isley concluded his correspondence by indicating that he had been in Australia for over 40 years. He advised that his family were in Australia, including his parents who were buried in Victoria. I infer that his mother who had suffered from Alzheimer’s disease had died before that time. He wrote, “I hope and trust these factors mean that I would be allowed to remain in Australia”, after completing his sentence.

22    Nothing on the file indicates that he received a response to that correspondence. It is uncontentious that soon after that letter was sent, the Migration Act was amended to incorporate s 501(3A):

Refusal or cancellation of visa on character grounds

…

Decision of Minister -- natural justice does not apply

…

(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 of a Territory.

23    As is relevant to these proceedings, s 501(3A) of the Migration Act created a mandatory statutory obligation requiring the Minister to revoke the visa held by a person convicted of an offence resulting in a substantial criminal record (defined in s 501(7) to include a sentence of imprisonment of 12 months or more) or a sexually based offence involving a child. It appears uncontentious that Mr Isley’s convictions involved both elements of what was provided for by s 501(3A).

24    As had become required by law, a delegate of the Minister issued a notice cancelling Mr Isley’s visa. The notice advising him of that cancellation, dated 12 October 2015, is at CB 16. Mr Isley was extended an invitation to apply to the Minister should he wish to apply for the revocation of the cancellation of his visa. The circumstances whereby such an invitation is to be issued and how it may be responded to are set out in s 501CA(4) of the Migration Act:

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

…

(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.        

25    On 22 October 2015, the Department received representations from Mr Isley requesting the Minister to revoke his original decision (CB 21-24). Mr Isley indicated that he had a “large dossier of reasons” that he would send as a separate package within ten days. His letter of 22 October included the following:

I understand that risk to the country is a priority. The package that will soon arrive has information on my re-offending risk assessment, which is low.

(Emphasis in original.)

26    Mr Isley filled out a personal details form and provided that to the Department (CB 57-64). In that form, Mr Isley provided largely uncontentious information regarding his family background, his former employment. Mr Isley identified his immediate family as his two surviving siblings, his fiancée, and her three children, noting that his mother and father were deceased and buried in Lilydale, Victoria. In response to a question asking if he had any concerns or fears about returning to his country of citizenship, Mr Isley answered as follows:

High stress, anxiety, family heart disease, tinnitus, high cholesterol, no friends, family, departed UK at 9 years of age, mother, father buried at Lilydale, Victoria, unable to visit site.

And then:

Many reasons, please refer to additional sheet to be sent within 10 days.

27    I will return to the further details Mr Isley provided but at this point it is sufficient to observe that Mr Isley provided a substantial package of materials shortly thereafter in support of his request for revocation of the visa cancellation decision.

The delay

28    Although Mr Isley’s request for revocation of the cancellation decision was received on behalf of the Minister by the Department on 22 October 2015, it was not then given immediate consideration. There was a substantial delay between its receipt and a brief being submitted to the Minister notwithstanding Mr Isley’s earlier correspondence in which he had expressed the desire that his future status be determined promptly.

29    In addition to the letter referred to at [21] and [22] above, on 26 August 2015 Mr Isley had written to the manager of the “Global Feedback Unit” (CB 250-252). That was, I infer, an agency within the Minister’s Department. In his letter of that date Mr Isley referred to the amendments to the Migration Act. He expressed his concern about how the changes to the law had impacted on him and stated his fears as to how they might further impact on him in the future. His letter reveals that his fiancée had told him that she had contacted the Department to enquire at what point of Mr Isley’s remaining period of imprisonment, prior to his earliest possible release date, any revocation request would be assessed. She had been told, to her shock, that his visa would not be cancelled “until near [the] earliest release date”. He had written:

If the Hon. Mr Peter Dutton refuses to revoke my visa cancellation, I will then have to take this to judicial review which will then flow more into my parole time again. This will also heavily assist the overcrowding issue within the prison system.

Prior to the Migration Act change, prisoners such as myself were assessed 6-12 months prior to the earliest release date, clearly giving us time to complete any legal issues.

His letter had concluded:

I am simply asking to be assessed now so I can be released at my earliest date and carry on with progression.

30    Mr Isley received a reply from the Department to that correspondence dated 11 September 2015 (at CB 253-254). As is material, the content of the reply he received was as follows:

I appreciate the time you have taken to bring your matter to my attention however, I am not able to discuss processes currently in place at Hopkins Correctional Centre as decisions about your involvement in programs, placement in prison and parole are decisions for Corrective Services and the Parole Board. Though, given your concerns presented in your letter, I am prepared to expedite your matter to have your case assessed under the mandatory cancellation provisions well before your earliest possible release date of 23 November 2016.

31    On 5 August 2016 Mr Isley again wrote the Department. He made reference to that undertaking. He advised (at CB 249):

As my release date of 23 November 2016 is fast approaching, I kindly ask if an approximate decision date can be advised … so I can forward this to the relevant persons, thus suggesting to the parole board to sync my next meeting in this timeframe. The secondary meeting usually takes place 3-4 months prior to my release date.

32    It is uncontentious that the undertaking Mr Isley had been given that his matter would be expedited such that it would be assessed well before his earliest release date was not met. There is nothing before the Court to explain that failure.

33    The next relevant document before the Court is dated 26 April 2017. It reveals that Mr Isley must have made a formal complaint to the Ombudsman about the delay. The document is a letter from the Department responding to the Ombudsman. It will be noted that by 26 April 2017 Mr Isley was still in prison more than five months after the earliest possible parole date that would have been available to him had his visa not been cancelled. I infer that was because the Victorian authorities regarded themselves as unable to grant parole to a person who was an illegal non-citizen and liable to removal from Australia.

34    The Department’s response to the Ombudsman is at CB 258. Under heading 4 (“If the matter has not been determined please explain why the Department did not meet its undertaking”), the Department’s response was as follows:

Revocation requests are generally processed in the order that the individual entered immigration detention. Mr Isley has not yet entered immigration detention, however, there is a stream of present cases which the Department is progressing ahead of release from prison. Mr Isley’s case is being progressed in this stream.

35    On 30 May 2017 Mr Isley was advised by the Department that the Ombudsman’s office had closed its investigation (CB 259). On 16 June 2017 (CB 266-267), Mr Isley wrote to the Department as follows:

It was extremely devastating for my family and I that your promise of assessment prior to 23 November 2016 was not honoured.

36    He said that his future mother-in-law, the mother of his fiancée, had been diagnosed with cancer and admitted to the Peter MacCallum Cancer Clinic. He expressed the hope that he would not be in prison and so would be able to support his fiancée should his fiancée’s mother not survive. He concluded:

I am literally begging to have my case assessed and finalised so I can hopefully get home where I am needed the most as soon as possible.

37    The Department did not submit a brief to the Minister until August 2017 and the Minister did not make his decision until October 2017.

Mr Isley’s representations to the Minister

38    As noted, Mr Isley had responded in late October 2015 to the Minister’s invitation. His response foreshadowed that he would be sending further materials in support of his request that the Minister revoke his original decision. He had done so under cover of a long letter. Copies of all of the additional materials provided by Mr Isley, including the covering letter, are at CB 67-123.

His covering letter

39    In his covering letter Mr Isley gave his explanation for what had happened in relation to the offences for which he was convicted:

Around 1998 I met a lady through friends, her name was [X] , I was around 37 years of age. She was a single mother with an 11 year old daughter named [Y] (The eventual complainant). [Y] never met her biological father and saw me as the closest person to just that. [X] and I remained together for around 5 years.

Over the few years the 3 of us travelled extensively throughout Australia and did all those things families normally do, however [X] and I started having difficulties. She had an obsession with alcohol and we started arguing extensively. [Y] was of course supporting her mother, one thing led to another and we broke up. At the time I was living with [X], I eventually moved out and [X] and I remained amicable. She helped be move into my new residence and we remained friends for quite some time. [Y] never seemed to forgive me for breaking up with her mother.

A short while after I had moved into my own home I had a phone call at 2am in the morning from sister telling me that my mother had just passed away due to natural causes. This once again caused distress but as I was much older now I was able to handle it better. My mother also lays to rest at Lilydale cemetery.

My fiancée’s father … also recently passed away which imposed great stress on my fiancée, myself and my family, as I was needed most at this sympathetic time, unfortunately I was helpless being incarcerated.

A few months passed and I met another lady … in which to this day is my much loved fiancée (sic). We have now been together for 12/13 years and are looking forward to getting married upon release. [She] was also a single mother with 3 daughters. She had separated from her violent husband the day that he attacked their eldest daughter … when she was around 13 years of age. An intervention order was placed upon [her husband] for 18 months and could only see his daughters supervised.

[My fiancée] was divorced from [her husband] 12 months after separation and to this date [he] has no contact with his now adult daughters. My fiancée … knew the complainant [Y] as [Y] used to call me quite often asking me to pick her up and drop her off at various places, this I always did as I still wanted to be that father figure to her, my fiancée was with me most of the times that I assisted [Y] hence knowing each other. ]My fiancée] supported this.

Myself, [my fiancée] and her children went on numerous holidays, every weekend we were doing something, going somewhere, but the complainant [Y] knew this was happening through social media and [my fiancée] and I detected an abundance of jealousy from her.

I soon started receiving derogatory SMS messages to my mobile phone, mainly messages of jealousy, however one message was very abusive and was used in the trial as evidence in favour of myself. [My fiancée] and I realised what was happening. “What [Y], her mother and I used to do is now happening with my new partner and her children, and [Y] is not taking that too well.”

[My fiancée], myself and her 3 children went on a cruise for 10 days, this was the only time I have ever left Australia. Once again, [Y] was aware of this through social media, and not too long after our return, to our shock the police knocked on our front door with accusations from [Y] against me. I cannot understand how somebody could do this to someone else for the act of jealousy, money or whatever reason.

40    It is uncontentious that Mr Isley has continued to maintain that he is innocent of the offences for which he was convicted.

41    His covering letter referred to his family in Australia as follows:

I have resided in Australia for 45 years and of course of my formative years have been spent here. My entire family are here which includes: My Brother …, Sister …, Brother in law …, 3 Nephews …, 1 Niece …, Uncle & Auntie …, Several great Nieces & Nephews. Several Cousins, then there is my Fiancée’s side which is extremely large, My fiancée: Veronica Graham, de facto stepchildren …, Mother in law …, Brother in law …, Sister in law … and many more, all of which are Australian citizens.

42    His covering letter gave a detailed account of his medical issues. Mr Isley indicated that he had high cholesterol due to hereditary family heart disease and took daily dosages of Crestor, aspirin, Metamucil and four fish oil tablets to manage this. He reported that, due to high stress and anxiety, he took Zoloft daily. He had been taking that medication for approximately seven years. He said that the prison’s general practitioner had suggested he should stay on that medication whilst in prison, especially due to his family history of heart disease. He then made reference to other medical conditions that do not appear relevant to the grounds of appeal before the Court. However a note at the foot of CB 71 is potential relevance. It was as follows:

Due to recent excessive anxiety, heart palpitations, and arrhythmia, I have just been ordered to have an E.C.G. (Electrocardiogram) heart valve ultrasound and have a holter monitor fitted at the Ararat Hospital. I have not yet had results. This is now stressing and frightening my family.

43    In that regard I observe that there is nothing I have discerned in the materials before the Court that refers to the results of those medical examinations. His counsel made no reference to their outcome. I am entitled to infer that had Mr Isley been diagnosed with an immediately serious heart condition that circumstance would have been advised to the Minister.

44    Mr Isley’s covering letter stated that he had been assessed by a prison psychologist as having a low reoffending risk ‘on the static 99 assessment test’.

45    Under the sub-heading “Ties to England”, Mr Isley wrote as follows:

I have no relatives that I know of in England, I have no contact with anybody whatsoever in England. I have never returned back to England since arrival in Australia in 1971. I have nowhere to live or work. I do not know my way around, I know nothing about the social security or the health system. If I were deported I would not know the first thing to do. As I am heavily reliant on the health system especially due to a family history of heart disease, I am frightened that the stress and anxiety involved will surely bring on cardiac issues.

If I were deported to the UK, where would I go? Where would I live? I do not know anybody there at all, no family, no friends, I would succumb to a broken heart.

46    Under the sub-heading “Personal financial Information” he advised:

My fiancée … & children were financially dependent on myself for the mortgage, bills, school fees, food etc., especially after re mortgaging an extra $170,000 on our home loan. As our savings have now dwindled, we have had some help from family & friends until I manage to get back home and return to the work force.

47    Under the concluding heading “Closure” Mr Isley wrote:

All I long for is to start my life again and marry my much loved fiancée. My future stepchildren are missing me greatly, my family are missing me, and so are my friends. This is all reflected in the prison visit and phone records, in which I did not have enough time to arrange these through F.O.I. The prison will not give these to me. Even though our family has always been very close, being in prison has made a better person of me. I value life so much more, and it has brought my family even closer to me. I have learnt so much in prison, and when I am released it will be with a wealth of knowledge in all aspects of life.

Further materials put before the Minister by Mr Isley

48    Under cover of his letter Mr Isley provided the Minister with copies of many references and letters of support. All were highly favourable to him.

49    He included a personal letter from his fiancée (at CB 103) in which she had expressed her love for him and her hopes for their shared future.

50    Relevant to the submissions made in these proceedings, the attachments he provided for the Minister’s attention also included letters from each of his fiancée’s mother and her son (the brother of Mr Isley’s fiancée) at CB 84 and 83 respectively. His fiancée’s mother wrote:

The thing that struck my husband and I was the friendship he gained with my son … [who] had disabilities, John has an incredible amount of patience with my son which not many people are willing to due to his disabilities. John has always taken the time to help him in any way that he could which both my husband and myself could not believe the positive impact this has had on [my son].

51    Mr Isley’s fiancée’s brother wrote:

If John were deported I would [lose] my greatest friend. No one has been as kind, understanding and forgiving of me than John has and if he leaves Australia I will be lost.

..

I have been counting down the days until John is able to come home and if he is deported I will be extremely heartbroken and sad. It has been difficult for everyone in his absence and if he is removed from our lives permanently I fear what will happen to the emotional wellbeing of all family members as since my father passed away John has stepped up and been a huge support to everyone.

Materials later provided for consideration by the Minister by or on behalf Mr Isley

52    Mr Isley subsequently arranged for a psychologist’s report authored by Dr Karen Owen, PSM MAPS (CB 159-161) to be provided to the Minister. Because the Applicant has not challenged the Minister’s conclusions regarding the risk of his reoffending much of Dr Owen’s report has only limited relevance to these proceedings. However, her report, dated 9 November 2015, includes the following passage:

Given Mr Isley’s complete lack of connection and support in the United Kingdom cancellation of his visa would in all likelihood produce considerable hardship and be highly detrimental to his mental health and wellbeing.

53    Mr Isley also later put materials before the Minister to establish that he had participated in the “Better Lives Program” – a program designed to target sexual offending behaviour (CB 210).

54    Also put before the Minister on Mr Isley’s behalf was a letter dated 25 June 2017 written to the Minister by his fiancée. His fiancée told the Minister that she had been diagnosed with clinical depression and anxiety. She reported that her three daughters were also suffering ongoing depression and anxiety because of the trauma and stress brought on by Mr Isley’s sentencing. She said that they continued to seek medical care to help undertake their daily duties

55    She provided further information about the stress she was suffering without Mr Isley to provide emotional support (at CB 264):

The pain and suffering caused by his incarceration has affected my mental and physical health [severely]. I take daily anti-depressants and often [am] crippled by pain from the struggle to upkeep my home and property. My struggles include taking care of my mother and mentally disabled brother who also have both been unwell during the last six years.

56    She said her mother had cancer and was having to undergo treatment at the Peter MacCallum Cancer clinic. She told the Minister:

The psychological impact since John’s Visa has been cancelled has further strained my abilities to carry on with daily duties and family life.

She told the Minister that even happy and exciting events such as her daughter’s planned engagement had become a source of anxiety for her because she feared she would have to attend that priceless event without him by her side. She expressed her hope for a positive outcome.

Other materials before the Minister

57    As well as the documents to which I have referred, Mr Isley’s file, as annexed to the Department’s brief to the Minister, included certain other materials. Those materials included a selection of Mr Isley’s prison file notes (from CB 124-158). One such file note (dated 2 October 2014) confirmed that within the prison system Mr Isley was regarded as low risk (CB 140).

58    There was also a selection of Mr Isley’s prison medical records. They appear to be consistent with Mr Isley’s account of his medical conditions. One file note records:

John currently takes anti-depressants, Cholesterol medication, 1 aspirin a day and also takes vitamin D supplements. He remains quite healthy and attended a boot camp which he found challenging but enjoyable all the same. (at CB 126).

59    Mr Isley had told the Minister he intended to return to work after being released to help his family recover from the indebtedness they had incurred in meeting his legal costs. While he had informed the Minister that he had a history of family heart problems and suffered ongoing health concerns, he had made no claim that his medical conditions were presently incapacitating.

60    The materials put before the Minister also documented the complaints he had made to the Department and the Department’s responses to questions from the Ombudsman (CB 249-260).

61    In brief summary those were the materials before the Minister when he came to consider Mr Isley’s application for the visa cancellation decision to be revoked.

Brief to the Minister

62    The matter ultimately came before the Minister under a brief authorised for clearance to him dated 17 August 2017 (CB 1-11). Under the heading “Recommendations” on the first page of the Department’s brief the Minister was provided with the following options to choose between:

1.    Note that on 12 October 2015, a delegate made a decision under s. 501(3A) of the Act to mandatorily cancel the visa of Mr ISLEY, who has since applied for revocation of that original decision, as per s. 501CA of the Act (the Minister circled;

2.    Indicate whether you wish to consider this case personally or instead refer the revocation consideration to the departmental delegate;

3.    If you decide to consider this case personally, indicate whether or not you will revoke the original decision to cancel Mr ISLEY’s visa, under s. 501CA of the Act and sign the attached decision page;

…

63    The Minister circled “noted” with respect to the first option, “consider personally” with respect to the second and “not revoke” with respect to the third.

64    The Minister signed the decision page and dated it 10 October 2017.

The Minister’s reasons

65    The Migration Act provides that if making a decision not to revoke a visa cancellation the Minister must set out his reasons for doing so: s 501G(1)(ba) and (e). The Minister’s statement of reasons appears at CB 273-285. It commences with a number of largely uncontentious paragraphs. They recite that Mr Isley’s visa had been cancelled because a delegate had been satisfied he had not passed the character test, and that Mr Isley had accepted an invitation to make representations that that decision be revoked.

66    At [11], the Minister indicated that, because he was not satisfied that Mr Isley passed the character test, he had considered in light of the representations Mr Isley had made whether he was satisfied there was another reason why the original mandatory visa cancellation decision should be revoked. With respect to Mr Isley’s representations, the Minister’s reasons referred to them and summarised them as follows:

8.    I have considered the representations made by Mr ISLEY and the documents he has submitted in support of his representations.

…

12.    In undertaking this task, I assessed all of the information set out in the attachments. In particular, I considered Mr ISLEY’s representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked.

13.    In the representations submitted by or on behalf, Mr ISLEY has articulated reasons why the original decision should be revoked, which include:

•    He arrived in Australia as a four year old child with his parents and brother, and has resided continuously in Australia since 1971.

•    His brother and sister reside in Australia, as do two aunts/uncles, four nieces/nephews, and three cousins, all of whom are Australian citizens.

•    His parents are deceased and buried in Lilydale Cemetery in Victoria.

•    He has no family whatsoever in the UK, would not know anything about England or where he would live or work, and knows no other home than Australia.

•    He is engaged to an Australian citizen following a relationship of more than 13 years and they intend to marry.

•    He is a step-father to his fiancée’s three children, who were minors when they commenced a relationship, and are now adults.

•    He has the support of his fiancée and his three step-children, as well as his fiancée’s other family, and numerous friends and work colleagues who consider him to be an Australian given his lengthy contribution to Australia.

•    He went to school in Australia, and worked for his employer between 1994 to 2011 prior to his incarceration, and various other smaller companies.

•    He states he is innocent of all charges of incest – by step-parent, and indecent act with child under 16.

•    He welcomes any treatment or pathway back into the community so he can successfully reintegrate into society.

•    He has been assessed by a clinical psychologist as representing a low risk of reoffending, has actively engaged in treatment, and has good prospects for successful rehabilitation.

•    His prison reports state he is not a behaviour or management concern, gets on well with everyone, and works hard with low supervision.

•    He has completed various courses in prison and commits to an offence free lifestyle.

•    He has various medical complaints for which he receives ongoing medication, including severe neck pain for over 25 years following an injury, and has a history of heart disease in the family.

67    Although the Minister was not bound to have regard to Ministerial Direction 65 – Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, he then gave attention to a number of specific issues which appear to have been drawn from that direction.

68    Under the hearing “Best interests of minor children”, the Minister noted:

…

15.    Mr ISLEY has not declared any minor children in Australia under his care. However, I note that he has indicated he has four nieces and nephews residing in Australia, and although he has not provided any details of their dates of birth, or his relationships with them, I acknowledge that it is likely that some may be minors.

16.    Accordingly, I accept that it is in the best interests of such of Mr ISLEY’s extended family as may be minors that the cancellation of his visa is revoked so that they have the opportunity to spend time with or develop their relationships with him. However, I also find that the extent of any harm to their best interests arising from non-revocation is likely to be limited as there is no indication any minor children are parented by or in the care of Mr ISLEY.

Mr Isley makes no criticism of that conclusion.

69    The Minister then addressed the strength, nature and duration of Mr Isley’s ties to Australia in the following terms:

17.     In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the strength, nature and duration of Mr ISLEY's ties to Australia.

18.     Mr ISLEY has resided in Australia for over 45 years, having arrived as a child aged nine years, and I acknowledge that Mr ISLEY states that he arrived in Australia over 50 years ago as a four year old child. Given Mr ISLEY has lived in Australia for most of his life from a very young age I hold the view that the Australian community may afford a higher tolerance of criminal conduct.

19.    I have given more weight to this consideration as Mr ISLEY has spent his formative years in Australia, and his adult life contributing positively to the community by continued employment and flying as a private pilot. I find that Mr ISLEY has been making a positive contribution for over 45 years to the community and I have taken this into account.

20.    I note that Mr ISLEY has a brother and a sister residing in Australia since at least 1971, who are Australian citizens, and they continue to support him to remain in Australia, and they consider him to be Australian.

21.    I further note that Mr ISLEY's parents are now deceased and are buried at Lilydale Cemetery in Victoria.

22.    I also note Mr ISLEY is engaged to an Australian citizen with whom he has had a relationship with for over 13 years, and he and his fiancée re-mortgaged their home to finance the cost of Mr ISLEY's committal hearing and trial.

23.    I acknowledge the ongoing support provided to Mr ISLEY from his fiancée, and her three daughters, who were minors when the relationship commenced, and they consider Mr ISLEY to be their step-father and continue to offer their ongoing support, and I accept the evidence of support they provide through cards and letters, and numerous telephone calls during Mr ISLEY's incarceration.

24.    I also acknowledge the support that Mr ISLEY provides to his fiancée and her family, particularly during the passing of her father to illness four years ago, and during the recent diagnosis of cancer to her mother, and I accept that his fiancée and her family are anxious for Mr ISLEY to remain with them.

25.    I further acknowledge the letters of support from Mr ISLEY's extended family, friends, and work colleagues, who generally state that Mr ISLEY has made a contribution to Australia for most of his life through schooling, employment, and paying his taxes, and they consider him to be an Australian who is kind, caring, supportive, valued and respected.

26.    I note that Mr ISLEY did all his schooling in Australia, and has been employed for most of his adult life until his incarceration, and I acknowledge the work references which attest to his strong work ethic, and the support and assistance he provides, and his activities as a private pilot.

27.     I have considered the effect of non-revocation upon Mr ISLEY's immediate family in Australia and accept that those persons would experience emotional and financial hardship. I find that Mr ISLEY has been making a positive contribution for over 45 years to the community and I have taken this into account and also recognise the effect of non revocation for family members in Australia.

70    Under the heading “Extent of impediments if removed”, the Minister’s reasons were as follows:

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

29.    Mr ISLEY is 55 years of age, and has been resident in Australia for over 45 years. He states he does not know his country of birth, having left there at a very young age, and does not know anyone there, and would not have anywhere to live or work.

30.    I acknowledge that Mr ISLEY may experience some emotional and financial hardship if removed from Australia and separated from his family, and unable to visit his parents' grave sites in Lilydale Cemetery. I also accept that Mr ISLEY may not have personal support in England, not having lived in England since he was a very young child.

31.    I note that Mr ISLEY has indicated that he suffered a neck injury over 25 years ago and suffers chronic neck pain for which he receives ongoing treatment and medication. I further note Mr ISLEY has indicated that his family has a history of heart disease, and he suffers high cholesterol, high stress and anxiety, tinnitus, hay fever, severe reflux, severe dry skin and cracked feet, severe heel pain, and takes Vitamin D supplements. I note he would have access to similar medical treatment and medication in the UK, which has a national health system that is widely acknowledged as being of a standard at least equivalent to that in Australia.

32.    Dr Owen, psychologist, in her letter to the Department states that she supports Mr ISLEY remaining in Australia, as removal would in all likelihood produce considerable hardship and be highly detrimental to Mr ISLEY's mental health and wellbeing.

33.    I find that Mr ISLEY could be expected to be generally familiar with British culture and society, which are broadly similar to those of Australia. I acknowledge that Mr ISLEY may experience a period of adjustment in re-establishing himself in the United Kingdom and that this may cause emotional and mental hardship. Further, I accept that Mr ISLEV's family are in Australia and that he will face serious emotional hardship in being separated from them. However, I find that any practical hardship suffered by Mr ISLEY in establishing himself in the United Kingdom would not be excessive.

71    The Minister then gave attention in some detail to Mr Isley’s criminal conduct and the risk that he might pose to the Australian community. The Minister’s conclusions in those regards are not challenged by the Applicant in these proceedings. The Minister’s findings were:

77.    Overall, I find that there is an ongoing likelihood of Mr ISLEY reoffending. I consider that further offending of a similar nature by Mr ISLEY involving sexual offences against a vulnerable member of the community, being a minor, could result in harm to a minor member or members of the Australian community.

72    Under the heading “Conclusion”, the Minister then reasoned:

81.    In considering, in light of Mr ISLEY’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of any of Mr ISLEY’s nieces and nephews who may be minors. I found that their best interests would be served by the revocation of the original decision.

82.    In addition, I have considered the length of time Mr ISLEY has made a positive contribution to the Australian community (over 45 years), the contribution he has made to the Australian community through his employment, the consequences of my decision for his family members and the efforts he has made to improve his chances of a quick and successful reintegration back into society.

…

86.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr ISLEY represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of any minor children in his family, as a primary consideration, and any other considerations as described above. These include Mr ISLEY’s lengthy residence and bonds, employment, and the hardship his family and social networks would endure in the event the original decision is not revoked.

73    The Minister stated that he was not satisfied that there was another reason why the original decision to mandatorily cancel Mr Isley’s visa should be revoked.

before this court

74    Mr Isley has sought orders that the Minister’s decision be quashed; that the decision be remitted to the Minister for reconsideration according to law; and orders for costs. The parties were represented by counsel who filed written submissions and made oral submissions on their respective clients’ behalf.

Ground 1

75    Ground 1 is as follows:

The Minister’s assessment pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) as to whether there was “another reason why the original decision should be revoked” miscarried because the Minister failed to give proper consideration to Mr Isley's claims in the following respects.

76    Ground 1 is an omnibus claim that the decision miscarried because the Minister had failed to give proper consideration to Mr Isley’s claims. It does not stand as a separate ground of appeal. It was not the subject of any specific submission. To the extent it might be understood as stating a distinct ground of review, I would dismiss it.

Ground 2

77    Ground 2 is as follows:

The Minister did not consider that non-revocation meant that Mr Isley would serve out his full sentence of eight years, rather than a shorter parole period because he was eligible for parole after 5 years and 8 months; and that he would be incarcerated in medium security, rather than low security, prison.

Particulars

The claims were made at CB3 [13]; CB9-10 [60]; CB65; CB249-354 and CB266- 269; relevant correspondence evidencing the claims was annexed to the Department’s submissions of the Minister; and the Minister did not consider the claims.

78    I refer to Mr Isley’s repeated requests that the Minister give timely consideration to his post-imprisonment status at [21] to [22] and [29] to [33] above. As noted, the undertaking that was given to Mr Isley by the Minister’s Department that consideration of his matter would be expedited was not honoured. Mr Isley had been made to wait until well after the expiry of the period of time in which a prisoner would ordinarily be entitled to be considered for parole before a brief was sent to the Minister, By that time he was “literally begging” to have his case assessed and finalised.

79    The seriousness of those circumstances accepted, it nonetheless did not appear obvious to the Court how the failure of the Minister to consider non-revocation meant Mr Isley would serve out his full sentence of eight and a half years. I therefore asked counsel appearing on behalf of the Applicant, Ms Costello, whether what was being submitted for under Ground 2 was that the legal consequence of the Minister’s non-revocation decision was that Mr Isley would be required to serve out his full sentence.

80    What I understood from Ms Costello’s response was that I should proceed on the basis that Ground 2 should be differently understood. It was premised on the fact that Mr Isley’s imprisonment had been unnecessarily prolonged because the Minister had not dealt with his request that his original decision be revoked until after the time he otherwise would have been entitled to be released on parole. As a result, his imprisonment could extend to that full period should Mr Isley continue to pursue his legal review rights. Until such time as those were finalised Mr Isley would remain an unlawful non-citizen and as such not entitled to be considered for parole. He would remain in prison. Ms Costello applied to amend the word “would” in Ground 2 to read “could”.

Consideration

81    However Ground 2 might be amended I am satisfied that the proposition underlying it involves a fundamental misunderstanding. The decision of the Minister not to revoke his decision to cancel Mr Isley’s visa did not have any legal effect so as to extend Mr Isley’s imprisonment.

82    The Minister had been required by law to cancel Mr Isley’s visa by reason of the amendments made to the Migration Act. Mr Isley’s visa was cancelled in 2012, well before his non-parole period had expired. Mr Isley thereupon became an unlawful non-citizen. He thereby became ineligible for parole. It was the Department’s delay in placing Mr Isley’s application before the Minister which initially had extended his imprisonment beyond his otherwise earliest possible release date. The operative cause of that difficulty was the Minister’s original cancellation decision, not the Minister’s non-revocation decision challenged in these proceedings.

83    In NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1, a Full Court of this Court (Allsop CJ, Buchanan and Katzmann JJ) held that in refusing a protection visa, the Minister is obliged to take into account the legal consequences of his decision. Failure to do so would result in jurisdictional error. That principle was applied by analogy in BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 (BHA17) to the Minister’s responsibility in respect of a non-revocation decision under section 501CA. I proceed on the basis that it applies to these proceedings.

84    In the present case, the legal consequence of the Minister’s non-revocation decision has been provided for by s 198(2B)(c) of the Migration Act. The Applicant is a person who must be removed from Australia as soon as reasonably practicable.

85    Having regard to Ms Costello’s oral submissions, I do not understand Mr Isley to contend by Ground 2 that he had no choice but to remain in prison following the Minister’s non-revocation decision. I understand Mr Isley to accept that he could have been processed for release at the expiry of his non-parole period had he been willing to accept his removal from Australia. Accordingly Mr Isley could have abandoned these proceedings and been released into immigration detention pending arrangements for his repatriation to the United Kingdom.

86    Mr Isley initially remained in prison beyond his non parole period because he had sought reconsideration of the loss of his visa and the Department’s delay in putting his submission before the Minister. Had he not sought such reconsideration he would have been released at the expiry of his non-parole period and removed to the United Kingdom.

87    Since the Minister’s non-revocation decision, Mr Isley has remained in prison not because of that decision as such but because he elected to exercise his right to challenge the validity of the decision in these proceeding. If he had not made such an election he would have been released – albeit into immigration detention pending his removal to the United Kingdom.

88    I infer the officers of the Department responsible for carrying out the duty conferred on them by s 198(2B)(c) have determined that it is not reasonably practicable to remove Mr Isley while he is pursuing his legal right to seek judicial review. They of course are correct to take that view.

89    For the above reasons I am satisfied that I must dismiss Ground 2. The Minister did not fall into error by not considering that non-revocation would mean that Mr Isley would or could serve out his full sentence of eight years, rather than a shorter parole period because he was eligible for parole after five years and eight months; and that he would be incarcerated in medium security, rather than low security, prison. His non-revocation decision did not have that legal effect.

90    Although Ground 2 fails, the conduct of the Department not putting Mr Isley’s request that the Minister revoke the decision to cancel his visa before the Minister until after his non-parole period had expired has troubling aspects. The Department’s unexplained failure to honour a specific undertaking given to Mr Isley is itself concerning. On the basis of that (later dishonoured) assurance, Mr Isley may have not taken advantage of administrative or judicial options then open to him that might have persuaded or required the Minister to give attention to his decision in a more timely way.

91    Further, Mr Isley’s understanding (as expressed in his communications with the Department in the materials before the Court) is that the delay he experienced was the product of (changed) policy. The Department’s response to the Ombudsman as set out at [35] might be thought to give some credence to that understanding.

92    The effect, if not the intention, of such a policy, should it exist, would be to require a person in Mr Isley’s circumstances to choose between remaining incarcerated as a prisoner substantially beyond the term of any non-parole period imposed by a court and abandoning his or her legal entitlement to have the Minister reconsider a visa revocation decision and any right to seek judicial review. Early release would come only at the cost of accepting removal.

93    Whether or not there is such a policy is not before the Court.

94    Only the facts of the present case are. Mr Isley contends that the delay in putting his request before the Minister not only extended his period of imprisonment while he waited for the outcome but also prevented him planning for the future and caused considerable stress to him and his extended family.

95    The Minister did not dispute those propositions – the Minister’s response was confined to submissions, which the Court has accepted, that those consequences do not establish legal error as asserted in respect of Ground 2.

96    The Court therefore accepts that Mr Isley has suffered those practical consequences.

97    In this instance the delay in his application reaching the Minister is unexplained. I decline to speculate.

98    The Court has not had the benefit of submissions as to the possibility that at an earlier point in time Mr Isley might have applied for orders to compel more timely consideration of his application. Whatever possibility may have existed, the opportunity to exercise it has long since passed. However it occurs to the Court that it would be at least arguable that intentional delay in putting a prisoner’s application before the Minister so as to compel that person to choose between the alternatives described in [93] above would be foreign to the duty of an officer of the Department under the Migration Act.

99    Whether that be so or not, such consequences as Mr Isley has experienced cannot now be retrospectively rectified in these proceedings. In my opinion the delay in Mr Isley’s application coming before the Minister is, as a matter of law, incapable of constituting ‘another reason’ why the original decision to mandatorily cancel Mr Isley’s visa should be revoked. Equally the possibility that Mr Isley might choose to commence judicial review proceedings to challenge is not a legally relevant consideration with respect to the duty of the Minister considering a revocation request.

100    The ‘discretion’ conferred on the Minister as to what he may take into account as ‘another reason’ for revoking a decision made pursuant to s 501(3A) of the Migration Act is broad, but it is not unconfined. As with all such discretions enacted by the Parliament, the Minister must exercise it having regard to the boundaries, express and implied, in its statutory conferral. In my opinion the considerations advanced in Ground 2 that Ms Costello submits the Minister ought to have, but failed, to take into account are not within those boundaries.

101    Ground 2 is dismissed.

102    I therefore turn to the remaining grounds before the Court. Grounds 3 and 4 each involve broadly similar legal issues. Because those issues emerge more clearly in respect of Ground 4 I propose to deal with that ground first.

Ground 4

103    Ground 4 is as follows:

The Minister did not consider:

a.    The hardship of the non-revocation on Mr lsley's fiancée, extended family and friends; instead, the Minister considered “the effect of non-revocation on Mr ISLEY’s immediate family” (CB277 at [27]); merely “noted” his Australian citizen sister and brother (CB 276 at [20]); and in conclusion referred to “the hardship his family and social networks endure” “as described above” (CB285 [86]).

b.    Mr lsley’s specific claims about the hardship of non-revocation on his fiancée and his extended family, that:

i.    His fiancée, and her family, needed his support in relation to his fiancée’s mother’s cancer illness (the claim was made at CB266-267, recorded in the Department’s submission to the Minister at CB6 [35], and not considered);

ii.    He was needed to help [care] for and support the mentally disabled nephew (sic – brother) of his fiancée: (the claim was made at CB264; recorded in the Department’s submissions to the Minister at CB6 [391], and not considered);

iii.    He was needed at the forthcoming wedding of his de facto step-daughter (the claim was made at CB264 and not considered);

iv.    His fiancée suffered clinical depression (the claim was made at CB264, recorded in the Department’s submissions to the Minister at CB6 [341], and not considered); and

v.    His de-facto step daughters suffer depression (the claims were made at CB264 and not considered).

The Applicant’s submissions

104    Ms Costello filed written submissions addressing Ground 4 as follows:

10.    The Minister did not consider the hardship of the non-revocation on Mr Isley’s fiancée, extended family and friends.

(a)    The Minister only considered “the effect of non-revocation on Mr ISLEY’s immediate family”: CB277 at [27].

(b)    Presumably, the reference to Mr Isley’s immediate family was to his partner and three de facto step children.

(c)    The Minister merely “noted” his Australian citizen sister and brother: CB 276 at [20].

11.    The Minister did not consider Mr Isley’s specific claims about the hardship of non-revocation on his fiancée and his extended family, being that:

(a)    his fiancée, and her family, needed his support in relation to his fiancée’s mother’s cancer illness (the claim was made at CB266-267, recorded in the Department’s submission to the Minister at CB6 [35], and not considered);

(b)    he was needed to help care for and support the mentally disabled brother of his fiancée; (the claim was made at CB264; recorded in the Department’s submissions to the Minister at CB6 [39], and not considered);

(c)    he was needed at the forthcoming wedding of his de facto step-daughter (the claim was made at CB264 and not considered);

(d)    his fiancée suffered clinical depression (the claim was made at CB264, recorded in the Department’s submissions to the Minister at CB6 [34], and not considered); and

(e)    his de-facto step daughters suffer depression (the claims were made at CB264 and not considered).

…

15.    In Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 at [138], Kerr J referred to Coker v Minister for Immigration and Border Protection [2017] FCA 929 as authority for the proposition 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 their statutory task.

16.    At [148], Kerr J stated that the ratio of Coker was 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”.

17.    Justice Kerr found for the applicant in Sabharwal on a ground that the Minister had failed to address a relevant consideration, being the applicant’s mental health conditions. His Honour held that the Minister’s failure to refer to a psychologist’s report in certain parts of the Minister’s decision, given the circumstances in which the report came into existence and the relevance of the psychologists’ (sic) report, supported the inference that it had been overlooked.

18.    In Sabharwal Kerr J held, at [167], that the Minister’s unexplained or unreasoned failure to take account of a significant factor objectively relevant to his statutory task, while not itself a jurisdictional error, in light of the fact the Minister said he had taken all of the material provided by the applicant into account, justified the Court’s inference that the Minister had constructively failed to exercise jurisdiction.

19.    Similar issues to those raised in this application arose in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592.

20.    In Buadromo the applicant was a Fijian citizen whose visa had been cancelled pursuant to s 501(3A). Mr Buadromo made representations pursuant to s 501CA(3) that he would not re-offend; he was remorseful for his offending; and that it would be impossible for him to find work in Fiji (Buadromo at [49]). The Assistant Minister “noted” or referred to these submissions before reaching his conclusion that the decision to cancel Mr Buadromo’s visa should not be revoked. His Honour found the Assistant Minister had not given “proper genuine and realistic consideration” to the submissions. The Assistant Minister needed to “resolve” the applicant’s submissions by making findings as to whether he accepted or rejected each submission (Buadromo at [48] – [49]).

21.    The applicant relies, in particular, on three aspects of Flick J’s reasoning:

(a)    procedural fairness required an evaluation of the content and reliability of the submission, rather than noting a submission;

(b)    it could be inferred in the absence of an express finding, that a finding had not been made; and

(c)    it is insufficient to merely refer to a submission because in the absence of a finding the submissions were accepted or rejected, the submission may not have been considered at all.

(Footnotes omitted.)

105    In oral submissions, Ms Costello submitted that the same methodological problem infected the Minister’s decision as had been identified by Flick J as reason to set aside a decision in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 (Buadromo). Ms Costello referred to his Honour’s summary of the relevant case law at [25] to [31] viz:

The need to consider reasons in a fair and balanced manner

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

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

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

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

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

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

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

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

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

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

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

106    Ms Costello submitted that Buadromo had established that the obligation to give proper, genuine and realistic consideration to matters identified required more from the Minister than merely noting the existence of relevant matters. Ms Costello referred the Court to the following passages of Flick J’s reasoning:

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

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

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

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

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

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

107    Ms Costello submitted that the same difficulty of distinguishing between what were the Minister’s findings of fact from matters that the Minister had merely noted applied to the Minister’s reasons in Mr Isley’s case. The Minister’s decision was liable to be set aside for that reason.

108    As a separate and distinct submission Ms Costello submitted that missing from the Minister’s decision was any reference to important aspects of information which had been put before the Minister by or on behalf of Mr Isley. The Minister had not referred to Mr Isley’s fiancée’s clinical depression, as she had told him about in her letter of 25 June 2017. The Minister had made no reference to his fiancée’s mother suffering from cancer, also identified in that same correspondence. He had made no reference to the friendship and help Mr Isley had provided to his de facto brother-in-law who had mental disabilities.

109    The Minister had thereby failed, Ms Costello submitted, to give consideration to critical information relevant to Mr Isley’s personal circumstances and his case. The Minister’s decision should be set aside in consequence. Ms Costello referred the Court to Tracey J’s analysis in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42]:

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

The Minister’s submissions

110    For the Minister, Mr Mosley filed written submissions as follows:

24.    The applicant claims the Minister did not consider the applicant’s specific claims about the hardship of non-revocation on the applicant’s fiancée and his extended family. The matters submitted by the applicant at (a) to (e) are responded to as follows:

25.    As to his fiancée’s mother’s cancer illness, the Minister specifically recognised the support the applicant provided to both his fiancée and her family. The Minister specifically acknowledged the support the applicant provided ‘during the recent diagnosis of cancer to her mother, and I accept that his fiancée and her family are anxious for Mr ISLEY to remain with them.’ (CB 277 at [24]).

26.    As to the care for the fiancée’s disabled brother, the Minister acknowledged the support that the applicant provides to his fiancée and her family (CB 277 at [24]) and accepted that those persons would suffer emotional and financial hardship in the event the cancellation decision was not revoked. That finding included his fiancée’s brother (CB 277 at [27]).

27.    As to the applicant being required at his fiancée’s daughter’s wedding, the Minister was not required to consider this specifically. It was not information that was “critical and relevant” to the applicant’s case. Even if it were, the Minister accepted that his fiancée was anxious that the applicant remain with the family.

28.    As to his fiancée and her daughters suffering from depression, the Minister acknowledged the support that the applicant provides to both his fiancée and her family (CB 277 at [24]) and accepted that those persons would suffer emotional and financial hardship in the event the cancellation decision was not revoked (CB 277 at [27]).

Case Law

29.    The applicant refers to the decision in Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10. In that matter, Kerr J found that the Minister had failed to consider a psychologist’s report that addressed the applicant’s mental health and drinking issues (at [22]-[23]). His Honour found that the report was overlooked. The circumstances in which the report came into existence and the relevance thereof, supported the inference it had been overlooked. His Honour further found that if it was not overlooked it was a significant factor that was objectively relevant and was not given proper, genuine and realistic consideration (at [153]-[169]). For the reasons stated, in the present matter, there was no similar overlooking or failure to give proper, genuine and realistic consideration to material that was critical and relevant to the Minister’s decision.

30.    The applicant further refers to the decision in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592. In Buadromo, Flick J with considerable diffidence found that the decision-maker had failed to give 'proper, genuine and realistic consideration' to some of the applicant’s claims. In doing so Flick J did observe that such assessment must proceed in every case in accordance with established principles of construction of the reasons of an administrative decision maker. These included:

•    the need to consider reasons in a fair and balanced manner. In this regard, the Court observed that care must be taken to ensure that the findings and reasons of the Minister 'are not construed with an eye attuned to the detection of legal error where none truly exists (at [25] and citing Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271 to 272);

•    the observations of the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593 at [47] that an inference that an issue has not been considered if not expressly dealt with in reasons is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point (at [30]);

•    ‘the well-accepted reservations’ which have been expressed with too readily concluding that ‘proper, genuine and realistic consideration’ has not been given to a particular matter (at [43]);

•    the need to ‘constantly recognise the limitations placed around judicial review as opposed to merits review of an administrative decision – those limitations themselves reflecting a well-accepted division of judicial and administrative functions’ (at [43]);

•    that proper, genuine and realistic consideration has the very real danger of creating a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any decision can be scrutinised (at [46]);

•    the acknowledgement that ‘the dividing line between a conclusion that an administrative decision-maker has not given proper or adequate consideration to a particular matter...and a conclusion that the administrative decision-making function has indeed been discharged but factually miscarried...is notoriously difficult to define with any precision’. It ‘depends upon the facts and circumstances of each individual case’ (at [46]).

Consideration

111    The reasons of an administrative decision-maker are not to be construed with an eye attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259.

112    I accept that the Minister’s reasons are not a model of consistency in the language they employ to distinguish between a matter the Minister had accepted to be factually established and a matter merely asserted by Mr Isley.

113    However read in context I do not accept Ms Costello’s submission that a fair reading of the Minister’s reasons would leave the reader uncertain of which of the two constructions was intended in any relevant instance.

114    Thus at [73] of the Minister’s decision, the Minister states:

I also note that in relation to the conviction of make/produce child pornography as a result of an event in September 2006, despite Mr ISLEY plea of guilty, he has asserted that the material did not contain any inappropriate pictures, videos, or the like and it was merely words in an email exchange sent to a friend one night whilst being childish.

115    At [75], the Minister finds that Mr Isley’s downplaying the seriousness of that matter showed a lack of insight into his offending. In that instance therefore there is no uncertainty about the Minister having used the word “note” in [73] to distinguish the matters in that paragraph from his findings.

116    However, there are other paragraphs in those reasons where, equally plainly on a fair reading the Minister uses the term “note” without any disparaging sense that it is other than the truth. In those paragraphs a fair reading requires what the Minister ‘notes’ to be understood as his findings. For example, at [20], the Minister states:

I note that Mr ISLEY has a brother and a sister residing in Australia since at least 1971, who are Australian citizens; and they continue to support him to remain in Australia, and they consider him to be Australian.

117    Read fairly and in context, I am satisfied that in that paragraph the Minister was not intending to convey any scepticism as to that proposition. It was his finding.

118    The same is true of his further “noting” at [21] that Mr Isley’s parents “are now deceased and are buried at Lilydale” and at [22], that Mr Isley was engaged to an Australian citizen. That those statements should be understood on a fair reading to express the Minister’s findings (notwithstanding the language of “noting” employed) is reinforced by what appears at [33] in which the Minister states:

…I accept that Mr ISLEY’s family are in Australia and that he will face serious emotional hardship in being separated from them.

119    Although the premise of Ms Costello’s submissions is sound, in the specific circumstances of these reasons I am not satisfied that on a fair reading there is any want of precision in the Minister’s use of language which would leave uncertain whether the Minister made findings relevant to Mr Isley’s claims in respect of the consequences to his Australian friends and family. His reasons in that regard were as follows.

23.    I acknowledge the ongoing support provided to Mr ISLEY from his fiancée, and her three daughters, who were minors when the relationship commenced, and they consider Mr ISLEY to be their step-father and continue to offer their ongoing support, and I accept the evidence of support they provide through cards and letters, and numerous telephone calls during Mr ISLEY's incarceration.

24.    I also acknowledge the support that Mr ISLEY provides to his fiancée and her family, particularly during the passing of her father to illness four years ago, and during the recent diagnosis of cancer to her mother, and I accept that his fiancée and her family are anxious for Mr ISLEY to remain with them.

25.    I further acknowledge the letters of support from Mr ISLEY's extended family, friends, and work colleagues, who generally state that Mr ISLEY has made a contribution to Australia for most of his life through schooling, employment, and paying his taxes, and they consider him to be an Australian who is kind, caring, supportive, valued and respected.

120    In my opinion those are explicit conclusions accepting the truth of what the Minister acknowledges in those regards.

121    Then at [27] the Minister’s reasons are as follows:

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

122    In my opinion the meaning conveyed in that passage, read fairly, is that the Minister is recording his finding that Mr Isley’s fiancée, her children and his future mother-in-law and brother-in-law will experience emotional and financial hardship should Mr Isley be required to leave Australia. The reference to financial hardship makes clear that in referring to Mr Isley’s “immediate family” he was referring to his fiancée and her family – they were the persons Mr Isley had identified as exposed to financial harm. Whatever criticisms are open to be made of the Minister’s reasons, in my opinion there is no ambiguity of the kind that Flick J addressed in Buadromo when, as a result of the language of that decision, his Honour was unable to ascertain what were and what were not critical findings of the Assistant Minister.

123    I turn to Ms Costello’s submission that the Minister failed to give proper, genuine and realistic consideration as required by law to information supplied by Mr Isley and critical to the Applicant’s case.

124    There is no reason in principle to prevent a court from concluding that a decision-maker fell into jurisdictional error when his or her reasons reveal that a matter of significance was not given attention. Such a conclusion has been uncontroversial since the High Court’s decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf). In that case, it was held that an omission by a tribunal may reveal the tribunal to have made an error of law amounting to jurisdictional error, and, moreover, it was further held that a court might be entitled to infer that a matter not mentioned was not considered by the tribunal to be material. There is no reason why the same principle should not apply to the decision of the Minister given he was subject to the obligation to give reasons.

125    However, what was said in Yusuf was that any matter not mentioned could be inferred to be considered by the decision-maker not to be material (per Gaudron J at [35]; McHugh, Gummow and Hayne JJ at [69]).

126    There were two explicit references in the Minister’s reasons to his having given consideration to all of the materials Mr Isley had put before him:

8.    I have considered the representations and documents made by Mr ISLEY and the documents he has submitted in support of his representations.

…

12.    In undertaking this task, I assessed all of the information set out in the attachments. In particular, I considered Mr ISLEY’s representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked.

127    For the Minister, Mr Mosley refers to what was said by Perry J in Poroa v Minister for Immigration and Border Protection [2017] FCA 826; 252 FCR 505 at [25] as entitling this Court to rely on the Minister’s assertions.

128    Such statements are not necessarily conclusive.

129    I reject that Perry J’s reasons suggest otherwise. However, where a decision-maker asserts that they have taken a matter into account, there must be something clear in the reasons (whether expressly or by implication) if the Court is to draw the contrary inference. Sabharwal v Minister of Immigration and Border Protection [2018] FCA 10 (Sabharwal), cited by both parties in their submissions, provides an example of an instance in which such an inference was drawn.

130    Subject to the consideration I give below to one matter, there is nothing to suggest any tension between the Minister’s findings that Mr Isley’s family would experience emotional and financial hardship and him having given consideration to all of the materials before him. The Minister was not required to identify each particular aspect of emotional and financial hardship asserted and address it in turn.

131    I have given anxious consideration to whether the principle given effect to in Sabharwal would apply in the particular instance of the letter dated 25 June 2017 written by Mr Isley’s fiancée. The terms of that letter are referred to at [55] to [57] above. There is no question that the information it contained was material to the Minister’s decision making. Nor can there be real doubt that the information so conveyed would have made known to the Minister that the degree of emotional and financial harm facing the family had, if anything, increased over the period between his application being submitted and the Minister’s consideration of it. Ms Costello submits that the Court ought to conclude that because that content was not specifically mentioned by the Minister, those matters were given no attention.

132    In the end I have concluded Ms Costello’s submission is to be rejected.

133    The matters Mr Isley’s fiancée thereby put before the Minister were heighted aspects of the emotional and financial hardship she and her family would suffer if Mr Isley was not permitted to remain in Australia. Her letter contained no additional integers that the Minister failed to give regard to. Thus, for example, although Mr Isley’s fiancée drew the Minister’s attention to the stress she was experiencing with her mother being ill she did not suggest that Mr Isley was needed to (or would) provide daily personal care for her mother or her brother. The matters referred to in her letter involved no new category of harm or additional detriment of a different kind his fiancée and her family would experience if Mr Isley was not present to provide them with support. It raised questions of degree, not of category. The Minister’s reasons expressly accepted the family would experience emotional and financial hardship because of his decision. I am not persuaded that his failure to particularise the degree of that harm he accepted would be suffered by specific reference to the content of that letter demonstrates he failed to give attention to those matters.

134    As Flick J acknowledged in Buadromo (although in a quite different context) there are borderline cases. I accept this to be one of them. Many decision makers, if only out of compassion, might have specifically mentioned the matters referred to in that letter. However, in my opinion that circumstance is an insufficient basis for the Court to draw an inference, notwithstanding the Minister’s statement that he had assessed all of the information set out in the attachments and in particular had considered Mr Isley’s representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked, that he failed to do so.

135    I would dismiss ground 4.

Ground 3

136    Ground 3 is as follows:

3.    The Minister did not consider:

a.    the hardship of non-revocation upon Mr Isley; and

b.    Mr lsley’s specific claims about the hardship that non-revocation would cause him, including that non-revocation:

i.    Would be highly detrimental to his health and wellbeing (at CB278 [32] the claim is only described; it was not considered);

ii.    Would risk causing him to have a heart attack (the claim was made at CB68- 71, and not considered);

iii.    Would cause hardship because he suffered from depression (the claim was made, inter alia, at CB71, and not considered); and

iv.    Would have the effects on his parole and place of custody as set out in paragraph 2 above.

The Applicant’s submissions

137    Ms Costello made written submissions as follows:

9.    The Minister did not consider Mr Isley’s specific claims about the hardship that non-revocation would cause him.

(a)    In particular, the Minister referred to evidence from a psychologist that his removal would in all likelihood produce considerable hardship and be highly detrimental to his mental health and well-being (at CB278 [32]) but did not consider that information.

(b)    The Minister did not consider the risk that non-revocation and removal to England would cause Mr Isley to have a heart attack. The claim was made at CB68-71, and not considered expressly anywhere in the Minister’s non-revocation decision. The Minister merely “noted” that Mr Isley had indicated his family history of heart disease CB 278 at [31].

(c)    The Minister did not consider the claim that Mr Isley suffered from depression. The claim was made, inter alia, at CB71, and not considered, or even noted, in the Minister’s reasons.

The Minister’s submissions

138    The Respondent’s written submissions were as follows::

18.    The applicant claims the Minister did not consider his specific claims about the hardship non-revocation would cause him. The matters submitted by the applicant are responded to below.

19.    As to the psychologist’s letter, the Minister referred to the statement in the letter relevant to the applicant’s mental health and well-being (CB 278 at [32]). The psychologist stated that given the applicant’s lack of connection and support in the UK, ‘cancellation of his visa would in all likelihood produce considerable hardship and be highly detrimental to his mental health and well-being.’ (CB 271). The Minister considered this material, finding: ‘I acknowledge that Mr ISLEY may experience a period of adjustment in re-establishing himself in the United Kingdom and that this may cause emotional and mental hardship. Further I accept that Mr ISLEY’s family are in Australia and that he will face serious emotional hardship in being separated from them. However, I find that any practical hardship suffered by Mr ISLEY in establishing himself in the United Kingdom would not be excessive’ (CB 278 at [33]).

20.    As to the applicant’s cardiac issues, the Minister first set out the applicant’s medical issues referring in particular to his family history of heart disease and that he suffered from high cholesterol, and high stress and anxiety (CB 277-8 at [31]). The Minister was not, as the applicant contends, required to ‘consider the risk that non-revocation and removal to England would cause Mr Isley to have a heart attack’. The material presented referred to the applicant’s family history of heart disease and the applicant’s cardiac symptoms and his medication. It also referred to certain medical tests being undertaken (CB 68-71). The Minister was not required to speculate as to whether the applicant’s removal to England would cause the applicant to have a heart attack. The Minister was satisfied that the applicant would have access to treatment and medication in the UK equivalent to that in Australia (CB 278 at [31]).

21.    The applicant claimed that he suffered from high stress and anxiety and had been taking medication for some time (CB 71). The Minister set out this claim as part of the applicant’s medical issues (CB 277-8 at [31]). The Minister accepted that removal to England and may cause emotional and mental hardship (CB 278 at [33]).

(Footnote omitted.)

Consideration

139    The general proposition asserted in Ground 3(a) that the Minister did not consider the hardship of non-revocation upon Mr Isley cannot be accepted.

140    Several references in the Minister's decision make express reference to the fact that Mr Isley would face hardship if removed to the United Kingdom. Such references include at [33] the Minister’s acknowledgement that Mr Isley would face serious emotional hardship in being separated from his Australian family.

141    However, the particulars of Ground 3(b) require closer attention.

142    Ground 3(b)1(i) asserts that the Minister did not consider that non-revocation would be highly detrimental to Mr Isley’s health and wellbeing.

143    The specific error then particularised occurs in paragraph [32] of the Minister’s reasons.

144    That paragraph reads:

Dr Owen, psychologist, in her letter to the Department states that she supports Mr ISLEY remaining in Australia, as removal would in all likelihood produce considerable hardship and be highly detrimental to Mr ISLEY's mental health and wellbeing.

145    Ms Costello submits that Dr Owen’s conclusions were only described rather than considered.

146    The full text of what Dr Owen said in that regard is at CB 271:

Given Mr Isley’s complete lack of connection and support in the United Kingdom cancellation of his visa would in all likelihood produce considerable hardship and be highly detrimental to his mental health and wellbeing.

147    Before referencing Dr Owen’s statement the Minister had expressly accepted that “Mr Isley may well not have personal support in England, not having lived in England since he was a very young child”. The Minister had thus already taken into account the considerations Dr Owen identified as the reasons for her concerns. At [33] the Minister stated:

…I acknowledge that Mr ISLEY may experience a period of adjustment in re-establishing himself in the United Kingdom and this may cause emotional and mental hardship. Further, I accept that Mr ISLEY’s family are in Australia and that he will face serious emotional hardship in being separated from them.

148    On a fair reading of the Minister’s decision I do not accept that Dr Owen’s report was merely described and not considered. The language of [33] (the immediately following paragraph), in my opinion, is fairly to be read as the Minister responding directly to Dr Owen’s concerns. Broadly they were acknowledged.

149    It is true that the Minister limited his conclusions to acknowledging that Mr Isley would suffer serious emotional hardship in relation to the separation from his family in Australia and emotional and mental hardship for only a period of adjustment in the United Kingdom. However that is not a basis to conclude that Dr Owen’s opinion was not considered. The weight that was to be given to Dr Owen’s expert opinion was for the Minister. He was entitled to limit his acceptance of Dr Owen’s observations to those he recorded at [33]. On a fair reading the Minister’s reasons at [33] are the conclusions he reached after having taken Dr Owen’s views into account.

150    Ground 3(b)(ii) asserts that the Minister failed to consider that a non-revocation decision would risk causing Mr Isley to have a heart attack. That particulars of that Ground state that that claim was made at CB 68-71, but was not considered by the Minister.

151    In my opinion, no such claim was advanced at CB 68-71 or in any of the other materials before the Minister.

152    I accept that the Minister had before him information that established Mr Isley had a family history of heart disease. He had Mr Isley’s statement of his health conditions and the medications he was taking before him (see [43] above).

153    However I was not referred to, and I have been unable to identify any claim ignored by the Minister that a non-revocation decision would risk causing Mr Isley to have a heart attack. There is certainly nothing in the materials specifically particularised.

154    The closest to such a claim might be thought to be what appears at CB 73 where the following passage appears:

As I am heavily reliant on the health system especially due to a family history of heart disease, I am frightened that the stress and anxiety involved will surely bring on cardiac issues.

If I were deported to the UK, where would I go? Where would I live? I do not know anybody there at all, no family, no friends, I would succumb to a broken heart.

155    In my opinion, the claim of succumbing to a broken heart is qualitatively different from the claim that deportation would cause the Applicant to have a heart attack.

156    Mr Isley’s concerns as expressed to the Minister that he was heavily reliant on the health system, especially due to a family history of heart disease and was frightened that he would be subjected to stress in consequence of his removal was expressly responded to by the Minister as part of [31] of his reasons, in which the Minister noted that if Mr Isley were deported to the United Kingdom, he would have access to similar medical treatment and medication in the United Kingdom, which has a national health system that is widely acknowledged as being of a standard at least equivalent to that in Australia.

157    Ground 3(b)(iii) asserts that the Minister’s decision should be set aside because the Minister ignored that Mr Isley suffered from depression. It is submitted that the Minister’s reasons make no reference to Mr Isley suffering from depression despite his having made that claim at, inter alia, at CB 71. As a matter of language that may be true, but as a proposition of substance it lacks merit.

158    The Minister referred (at [31]) to Mr Isley’s medical conditions. He noted Mr Isley advising that “his family has a history of heart disease, and he suffers high cholesterol, high stress and anxiety, tinnitus, hay fever….”.

159    What Mr Isley asserted at CB 71 at [2] was as follows:

Due to high stress and anxiety I take Zoloft (Anti Depressants) daily. I have been taking this medication for approximately 7 years. The prison GP suggests staying on this medication whist in prison especially due to a family history of heart disease.

160    The Minister referred to Mr Isley’s condition in the terms Mr Isley had expressed it. I reject the submission that the Minister failed to have regard to the claim Mr Isley had made.

161    As each of the sub-propositions submitted for have been rejected I would dismiss ground 3.

162    The application for review is dismissed with costs.

Associate:

Dated:    14 May 2018