FEDERAL COURT OF AUSTRALIA

Hands v Minister for Immigration and Border Protection [2018] FCA 662

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    Mr Hands challenges by way of judicial review the Assistant Minister’s decision not to revoke the mandatory cancellation of Mr Hands’ visa. For the reasons that follow, the challenge fails.

Summary of background matters

2    Mr Hands is a citizen of New Zealand. He arrived in Australia some 44 years ago, when he was aged 3. In 1994, he was granted an absorbed person visa. He has not travelled to New Zealand since he arrived in Australia in late 1974.

3    On 10 October 2016, in the Local Court at Batemans Bay, Mr Hands pleaded guilty to and was convicted of offences of destroy and damage property (dv), stalk/intimidate intend fear physical harm (domestic) and common assault (dv). He was sentenced to 12 months imprisonment for each offence, with a non-parole period of five months. The sentencing remarks record that Mr Hands intimidated his de facto spouse, damaged her car and, in addition, assaulted her grandson.

4    On 16 February 2017, Mr Hands’ visa was cancelled in accordance with the mandatory cancellation power in s 501(3A) of the Migration Act 1958 (Cth) (the Act), essentially because a delegate was satisfied that he did not pass the character test based on his “substantial criminal record”.

5    Mr Hands requested that the mandatory cancellation decision be revoked. He made representations in support of that request and provided documents in support.

6    It is desirable to summarise the relevant parts of those representations and documents.

7    On 24 February 2017, Mr Hands completed a “Personal Circumstances Form”. Several months later, he made further representations in support of his request. His representations dated 16 August 2017 referred among other things to the following matters:

(a)    difficulties experienced by his Aboriginal de facto partner during the time of his incarceration in coping with her five grandsons;

(b)    the fact that Mr Hands personally had four biological Aboriginal children, who were all now grown up with children of their own and with whom he had a good relationship and saw regularly;

(c)    since leaving his parents in his early teens, Mr Hands had always lived with Aboriginal families in Wollongong and Wallaga Lake;

(d)    that he had been accepted by those Aboriginal families as “one of their own”;

(e)    that he was accepted “working in the communities on the Community Development Employment Program (CDEP) for the length of time that program existed”; and

(f)    if he had to leave Australia, Mr Hands would not see his children and grandchildren for a long time, if at all, and that it would bring to an end his relationship with his partner because he would not be able to ask her to leave Australia and come with him in circumstances where “it is important to understand that in the Aboriginal communities the connectedness of Aboriginal kinship [sic]”.

8    As noted above, Mr Hands submitted various documents in support of his request. They included:

(a)    A submission dated 27 February 2017 from Mr Hands’ de facto partner, who described herself as being originally from the Yuin People of the Wallaga Lake Aboriginal Community on the far South East Coast of New South Wales, in which she said:

    Mr Hands had lived and worked in Aboriginal communities at Wollongong and Wallaga Lake;

    he had worked both for the CDEP and the Merrimans Local Aboriginal Lands Council;

    he had lived with Aboriginal communities for the most part of his life after he left home as a young teenager;

    he has children to other Aboriginal women in the community who have a connection with him on occasions;

    he and his partner had lived in a loving relationship for 13 years and he had supported her in raising her five young grandsons;

    she and her “grannies” are “totally devastated” by the news that Mr Hands will be sent to a foreign country.

(b)    A statutory declaration dated 10 August 2017 by Mr Hands’ partner, which stated that:

    Mr Hands had provided “culturally sensitive care” for her five grandsons;

    Mr Hands had left a violent home environment when he was 12 and “was adopted into a large indigenous family and was raised within the Koori culture” and that the “wider Aboriginal community accept and recognise [him] as a Koori man”;

    Mr Hands had held employment within “indigenous community projects”; and

    he had children to relationships with indigenous partners.

(c)    Another letter dated 16 August 2017 from Mr Hands’ partner, which informed the Minister that:

    under Aboriginal kinship system her five grandsons under the age of 13 recognise Mr Hands as their “Pop”; and

    Mr Hands provides culturally sensitive care for the boys, who had become disconnected and troublesome during his detention.

(d)    A further letter of support dated 11 August 2017 from Mr Hands’ partner which reiterated many of her earlier claims concerning the community acceptance and recognition of Mr Hands as a Koori man. This letter included the signatures of 11 people, four of whom described themselves as “Elders of the Yuin nation”, certifying that:

[Mr Hands] is considered a member of our community. He has lived and has been culturally accepted and recognised as a Koori man within our community.

(e)    A letter of support dated 5 March 2017 from Ms Daphne A. Mckenzie, a family friend of Mr Hands’ parents.

(f)    A letter dated 20 March 2017 from the CEO of Merrimans Local Aboriginal Land Council confirming:

    her knowledge of Mr Hands being an accepted member of the local Aboriginal community; and

    that the community accepted him because of his long-time connections (including family) to some of the local aboriginal families.

(g)    An undated letter of support from Ms Leanne Tungal, which confirmed that:

    Mr Hands was adopted into her large Indigenous family when he was aged 12 and is part of her extended family that lives from Wollongong to Eden;

    Mr Hands had been adopted into her family and “has been raised as a Koori in the eyes of our family and wider Indigenous community”;

    Mr Hands had worked for a local Indigenous community project and played in the local indigenous football team;

    Mr Hands has Indigenous children and grandchildren, who would be distressed if he were removed; and

    it would be detrimental to deport Mr Hands to New Zealand and for him to have to leave “his large Indigenous family”.

(h)    A letter dated 22 February 2017 from Ms Donna Wade, Bega Branch Manager for the Katungul Aboriginal Corporation, which provides community and medical services to Indigenous persons. Ms Wade said that Mr Hands “identifies as an Australian Citizen” and, in the ten years she had known him, “he has always engaged in the Local Indigenous Community, supporting his partner, children and grandchildren “who are all Indigenous Australian”.

(i)    An email dated 26 February 2017 from Mr Colin Davison, who stated that Mr Hands had grown up with the Aboriginal community and also has three Aboriginal children living on the South Coast.

(j)    A letter dated 27 February 2017 from a child of Mr Hands’ partner, who describes Mr Hands as “a step-father to me for 15 years…Grandfather to my son” and that it will be hard for her mother to be a single grandmother raising her grandchildren on her own.

(a) The Department’s brief to the Assistant Minister

9    In accordance with the usual practice, the Department provided a detailed brief / submission to the Assistant Minister. The copy of the Department’s brief which was initially adduced in evidence by the Assistant Minister was undated and unsigned. It was only after the Court drew attention to these omissions that a true copy was belatedly adduced, in circumstances which are described in [43] and [44] below. The brief contained various attachments, including a draft statement of reasons. Another attachment identified the evidence and material relating to Mr Hands’ case, including the representations and supporting documents provided by him. It appears that copies of those representations and attachments were briefed to the Assistant Minister.

10    The Department’s brief included a summary of the representations made by or on behalf of Mr Hands. Under the heading “Best interests of minor children”, the Department summarised Ms Walker’s statement that Mr Hands was providing her five grandchildren with “culturally sensitive care”. Reference was made also to Mr Hands’ statement that he had four adult Aboriginal children, who themselves have children and that he has a good relationship with his biological grandchildren.

11    It is desirable to set out the entirety of that part of the Department’s submission under the heading “Strength, nature and duration of ties to Australia”:

Strength, nature and duration of ties to Australia

(i) Family composition and ties to Australia

21.    Mr HANDS’ mother and brother reside in Australia. He advises that they are Australian citizens. Mr HANDS also has six aunts, one uncle, two nieces, one nephew and two cousins in Australia. He states his family would be devastated if he were deported (Attachment N).

22.    Mr HANDS states he has four adult children of part Indigenous heritage, with whom he has a good relationship and sees regularly (Attachment O).

23.    Mr HANDS has been in a de facto relationship with Ms Maria Walker for 12 years. He intends to reside with her upon his realise into the community and they have plans to marry formally. He states he would not ask Ms Walker to leave Australia because she has her own children and strong ties to the Aboriginal community and so his removal would be the end of their relationship. He adds Ms Walker and his children are his life and he does not want to lose them (Attachment O).

24.    Ms Walker states she has been upset and depressed since learning of Mr HANDS’s possible deportation. She states they have been in a loving relationship for 12 years and in this time Mr HANDS has supported her in raising her five grandchildren, that he is a loving and caring person who will do anything for his family, he is always cleaning the house and helping with other household duties such as gardening and taking the grandchildren to school. She advises that since Mr HANDS’s incarceration her own health has deteriorated from the pressure of caring for her five grandchildren and to deport him would destroy their family (Attachments R, S, T & U).

25.    Mr HANDS has lived and worked with Aboriginal families and communities in Wollongong and Wallaga Lakes since leaving his family home in his early teens. He states he is acknowledged as one of their own and was accepted working in the communities on the Community Development Programs for the length of the time that program existed (Attachment O).

26.    A letter of support from the Elders of the Yuin Nation states that the signatories consider Mr HANDS to be a member of their community and advise that he has lived with and has been culturally accepted and recognised as a Koori man within their community (Attachment U).

12    Under the heading “Impediments to return”, the Department summarised Mr Hands’ representations on this topic as follows:

Impediments to return

29.    Mr HANDS states being made to leave Australia would impact his state of mind, that as far as he knows he does not have any relatives in New Zealand nor contact with anyone. He has not travelled to New Zealand since he arrived in Australia in 1974 and would have no support in New Zealand (Attachments M, N & O).

30.    In letters of support friends and family write that Mr HANDS has a strong connection to Australia and deportation would have a ‘huge’ impact on his mental, emotional and physical wellbeing as he has does not have a support network in New Zealand (Attachment V).

(b) The Assistant Minister’s statement of reasons

13    On 9 October 2017, the Assistant Minister signed a decision page which recorded his decision not to revoke the mandatory visa cancellation decision. It contained a statement that the Assistant Minister had “considered all relevant matters”. The Assistant Minister provided a statement of reasons bearing the same date. It was noted in [3] of that statement that Mr Hands had made representations within the prescribed time. At [10] the Assistant Minister said that he had considered, in light of Mr Hands’ representations, whether he was satisfied that there was another reason for revoking the original decision. He added in [11] that, in undertaking this task, he had “assessed all of the information set out in the attachments” and, in particular, that he had “considered Mr HANDS’ representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked”.

14    Paragraph 12 of the statement of reasons is as follows:

12.    In the representations/document submitted by or on his behalf, Mr HANDS has articulated reasons why the original decision should be revoked, which include:

-    He has been in a de facto relationship with an Aboriginal Australian partner for some 12 years and they intend to marry formally.

-    He has five step-grandchildren who are in the custody of his de facto partner and whom he has helped to raise.

-    His family would be devastated if he were deported as he is their support as much as they are his.

-    He has been in Australia since he was a young child and would like to stay here.

-    On release, he has employment available in the building and construction industry in the community and accommodation with his partner.

15    Mr Hands submits that it is notable that the Assistant Minister made no reference in [12] to the representations made and documents submitted by Mr Hands in relation to either his identification and acceptance by the Aboriginal community as an Aboriginal person, or the effects of the decision not to revoke the cancellation decision on Mr Hands’ extended Aboriginal family or the broader Aboriginal community. Although a section of the statement of reasons deals with the topic of “best interests of minor children”, no reference is made to the representations and supporting documents regarding the effects of non-revocation on Mr Hands’ extended Aboriginal family and the broader Aboriginal community.

16    Under the heading “Strength, nature and duration of ties”, the following material appears in the statement of reasons:

28.    I note Mr HANDS has lived and worked with Aboriginal families and communities in Wollongong and Wallaga Lakes since leaving his family home in his early teens, as well as his statement that he is acknowledged as one of their own and was accepted working in the communities on the Community Development Programs for the length of the time that program existed. I have also taken into consideration the letter of support from the Elders of the Yuin Nation which states that the signatories consider Mr HANDS to be a member of their community and advise that he has lived with and has been culturally accepted and recognised as a Koori man within their community. I accept that Mr HANDS has thus made a valuable contribution to the local Indigenous community and has close ties to it.

17    The statement of reasons then sets out the Assistant Minister’s findings in relation to protecting the Australian community and the risk of Mr Hands reoffending. In the section headed “Conclusion”, the Assistant Minister notes in [64] that he gave primary consideration to the best interests of Mr Hands’ minor grandchildren, step-grandchildren and child. He also notes at [65] that he had considered Mr Hands’ positive contribution to his local Aboriginal community and the consequences of non-revocation for his other family members, especially his de facto partner. The Assistant Minister explained why these matters were outweighed by his concerns to protect the Australian community should Mr Hands reoffend.

18    It is desirable to set out in full [69] and [70] of the Assistant Minister’s statement of reasons:

69.    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 HANDS represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of relevant minor children, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, his claims that he will suffer hardship and harm if returned to New Zealand, employment, volunteer and familial ties to Australia, and the hardship Mr HANDS, his family and social networks will endure in the event the original decision is not revoked.

70.    Having given full consideration to all of these mattes, I am not satisfied, for the purposes s. 501CA(4)(b)(ii), that there is another reason why the original decision under s. 501(3A) to cancel Mr HANDS’ visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr HANDS’ Absorbed Person visa remains cancelled.

19    It is also important to note the Assistant Minister’s reasoning in relation to the issue of the extent of impediments which would confront Mr Hands if he were returned to New Zealand. The full extent of the Assistant Minister’s reasoning on this matter is reflected in [32] to [35], noting in particular the final sentence in [35], which provides the basis for ground 2 of Mr Hands’ judicial review application (emphasis added):

Extent of impediments if removed

32.    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 HANDS will face if removed from Australia to his home country of New Zealand, in establishing himself and maintaining basic living standards.

33.    Mr HANDS is a 46 year old man. He has not listed any major medical conditions, but states that being made to leave Australia would impact his state of mind, and that as far as he knows he does not have any relatives in New Zealand nor contact with anyone. He has not travelled to New Zealand since he arrived in Australia in 1974 and would have no support in New Zealand.

34.    I note that in their letters of support, friends and family have submitted that Mr HANDS has a strong connection to Australia and deportation would have a 'huge' impact on his mental, emotional and physical wellbeing as he has does not have a support network in New Zealand.

35.    While I accept that Mr HANDS may experience some emotional and psychological hardship if removed from Australia and separated from his family, specifically his de facto partner, New Zealand is culturally and linguistically similar to Australia and has comparable standards of health care, education, social welfare and housing support. As a citizen of New Zealand, Mr HANDS will have access to these services equal to that of other citizens of that country, which would help to facilitate his integration back into its society. Whilst I acknowledge Mr HANDS may experience short term hardship, I find that over time he would be capable of settling in New Zealand without undue difficulty.

The judicial review proceeding in this Court

20    The Court granted leave for Mr Hands to rely upon an amended originating application. It was prepared by Dr Sarah Pritchard SC and Mr Charles Gregory, who nobly agreed to act for Mr Hands on a pro bono basis. There were three grounds of judicial review, each of which was said to involve jurisdictional error (emphasis in original):

1.    In exercising the power under s 501CA(4), the respondent did not consider (or give any real consideration to) the representations made by Mr Hand seeking revocation of the original mandatory cancellation decision (failure to give real consideration ground):

Particulars of representations

(a)    Representations in relation to Mr Hands’ identification and acceptance by the Aboriginal community as an Aboriginal person, and the nature of his ties to the Aboriginal community.

(b)    Representations in relation to the effects of a decision not to revoke the original decision on his extended Aboriginal family and the broader Aboriginal community.

2.    In exercising the power under s 501CA(4), the respondent made findings of fact for which there was no evidence and which were contrary to the evidence (no evidence ground):

Particular of finding of fact

Finding at Statement of Reasons dated 9 October 2017 (SoR) [35] that “over time [Mr Hands] would be capable of settling in New Zealand without undue difficulty”.

3.    The non-revocation decision was unreasonable in the sense identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) (unreasonableness ground).

Consideration and disposition of the application

21    As noted above, Mr Hands’ visa was mandatorily cancelled. This was because of the operation of s 501(3A) of the Act and the statutory obligation to cancel a visa where the Minister is satisfied that the visa holder does not pass the “character test” under inter alia s 501(7)(c). Under s 501(7)(c), a person does not pass the character test if the person has a substantial criminal record by having been sentenced to a term of imprisonment of 12 months or more. As noted above, Mr Hands received such a sentence on 10 October 2016.

22    The Minister has a discretion to revoke a mandatory cancellation decision if certain conditions are met. Section 501CA relevantly provides:

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

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

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

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

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

(b)    the Minister is satisfied:

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

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

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

…

Note:    For notification of decisions under subsection (4) to not revoke, see section 501G.

(a) Ground 1 – failure to give real consideration

23    The relevant principles guiding the consideration and resolution of this ground may be summarised as follows.

24    First, it is plain that the Assistant Minister’s statement of reasons is not to be construed with an eye keenly attuned to the detection of legal error where none truly exists. The statement needs to be read fairly, as a whole and in the broader context of the claims advanced by Mr Hands in the material he provided to the Assistant Minister in support of his revocation request and other material before the Assistant Minister, including the Department’s brief.

25    Secondly, where a decision-maker is required by statute to consider a claim or other mandatory criteria, the decision-maker must engage in an active intellectual process directed to that claim or criteria (see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 347 ALR 173 (Carrascalao) at [43]-[47]).

26    Thirdly, finding that the Assistant Minister has not engaged in an active intellectual process will not be lightly made and must be supported by clear evidence, bearing in mind the onus of proof carried by a judicial review applicant (Carrascalao at [48]).

27    Fourthly, assertions by a decision-maker in a statement of reasons 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 (see Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [40] per Allsop CJ, Flick and Griffiths JJ and Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 at [48] per Griffiths J).

28    Fifthly, (and related to the fourth point) sweeping statements to the effect that the Assistant Minister had considered Mr Hands’ representations and the documents he provided does not shield from scrutiny whether in substance, as opposed to form, consideration has been given to these matters as required by law (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (WAEE) at [45] per French, Sackville and Hely JJ).

29    Sixthly, where there is a statutory duty to provide reasons (as is the case here), inferences might, but need not necessarily, be drawn from a failure to make express findings in a statement of reasons. In WAEE, the Full Court said at [47]:

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.

30    Seventhly, as is evident from the case law summarised above, the issue of whether or not a particular claim made in representations to the Assistant Minister is “another reason” for revoking the visa cancellation decision turns very much on the particular facts and circumstances of an individual case, as was emphasised by the Full Court in Parker v Minister for Immigration and Border Protection [2017] FCAFC 115 at [22] (Parker).

31    Eighthly, it is important to appreciate that the alleged failure to give real consideration raised by ground 1 relates to the consideration of representations made by or on behalf of Mr Hands in support of his revocation request. In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 (Goundar), Robertson J stated at [56] that, while his Honour accepted that under s 501CA(4) representations as a whole constituted a mandatory relevant consideration, he did not accept that “any particular statement in the representations should be so characterised”. The correctness of those observations were expressly left open by the Full Court in Parker at [16]. In my respectful view, caution needs to be exercised in applying the relevant principles to a particular case involving a consideration of a representation made under s 501CA(4)(a). There is no requirement that a decision-maker address every single word raised in such representations, nor refer in his or her reasons for decision to every piece of evidence and every contention made by an applicant, especially where such evidence or contention is not relevant to the statutory criteria (see Carrascalao at [45]). Rather, the legal obligation is to consider in the relevant legal sense the discrete and relevant claims raised in those representations. The claims need to be clearly articulated. I respectfully agree with the following observations of Flick J’s in Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [42]:

… In circumstances where “representations” made pursuant to s 501CA clearly articulate a series of discrete matters, there may be circumstances in which a conclusion would be open that the Minister has failed to properly take into account the “representations” if he addresses one or other – but not all – of the discrete matters raised for his consideration. No parsing and analysing of a submission, however, should be countenanced which would permit a Ministerial decision to be impugned by reason of a failure to make express reference to some peripheral matter which may be found within a submission but which cannot sensibly be characterised as the thrust of the claims being made or a claim that has to be separately addressed.…

32    Applying those general principles to the particular circumstances here, I reject Mr Hands’ submission that the Assistant Minister failed to give real consideration to his claims concerning his ties to the Aboriginal community and the effects of non-revocation not only on his extended Aboriginal family, but also on the broader Aboriginal community. I find that these matters were considered by the Assistant Minister as being matters that favoured revocation of the original decision, as is reflected in [28], [31], [65] and [68] of the statement of reasons. In particular, I consider that [31] and [65], fairly read, indicate that the Assistant Minister appreciated and took into account that non-revocation would affect other members of the Aboriginal community and not merely his immediate family. Having referred to the best interests of children at [64] and the positive contribution Mr Hands had made to the Australian community and to his local Aboriginal community at [65], the Assistant Minister expressly stated at [68] that the “strong countervailing considerations” were insufficient for him to revoke the visa cancellation. Furthermore, at [69] of his statement of reasons, the Assistant Minister referred again to the matters favouring revocation of the original decision, but reasoned that they were outweighed by the conclusion that Mr Hands posed an unacceptable risk to the community.

33    I accept the Assistant Minister’s submission that the statement of reasons reveals that Mr Hands’ claims concerning his links to the Indigenous community, both personally through family connections and also through community engagement and the recognition of Mr Hands as a Koori man, were considered, but they were viewed by the Assistant Minister as being outweighed by other relevant considerations.

34    For completeness, it might be noted that no submission was made on behalf of Mr Hands that, having regard to the fact that he had been accepted by the Elders of the Yuin Nation as a member of their community and was recognised as a Koori man, this necessarily gave him particular rights and interests, including, for example, under the Native Title Act 1993 (Cth), which needed to be taken into account. It appears that any such submission would have had to be rejected, having regard to the recent observations of the Full Court in Minister for Immigration and Border Protection v BHA17 [2018] FACFC 68 at [136]-[139].

35    For these reasons, ground 1 is rejected.

(b) Ground 2 – no evidence ground

36    It is well settled that it is an error of law to make a finding of fact for which there is no evidence (see Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [90]-[91]; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 (Bond) at 355-356 per Mason CJ and DRP17 v Minister for Immigration and Border Protection [2018] FCA 523 (DRP17) at [17] per Perram J. It is equally well established that as long as there is some basis for a finding or inference, there is no error of law (see Bond at 356).

37    Moreover, in the context of the decision-making task under s 501CA(4), such an error may be jurisdictional if the finding of fact is “a critical step” along the path to the ultimate conclusion whether or not to revoke the original decision to cancel a person’s visa. In DPR17, Perram J held that the Assistant Minister committed jurisdictional error in concluding that Australia did not owe any international non-refoulement obligations to the applicant in circumstances where there was no evidence before the Assistant Minister concerning the risk of harm to a protection visa holder if they were returned to China (see also SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402 at [19]).

38    The Assistant Minister submitted that he had taken into account Mr Hands’ representations concerning the impediments which he said he would face if he had to return to New Zealand. The Assistant Minister was entitled to proceed on the basis that those representations provided a broad framework for his consideration of that topic. I accept the Assistant Minister’s submission that, having considered the material provided by Mr Hands (and there is no reason to doubt in the particular circumstances here that it was in fact considered), the Assistant Minister rationally reasoned that, while Mr Hands would experience some short term hardship, over time he would be capable to settling in New Zealand without undue difficulty. No specific evidence is required to underpin the Assistant Minister’s conclusion that there was a comparable system of healthcare and social support in New Zealand (see generally McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [35]-[37] per McKerracher J and Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [69] per Robertson J). Moreover, it was open to the Assistant Minister to reason, as he did in [38] of his statement of reasons, that New Zealand is culturally and linguistically similar to Australia and that Mr Hands would have access to services in that country which would help facilitate his integration in the longer term into New Zealand society.

39    Ground 2 must be rejected.

(c) Ground 3 – unreasonableness ground

40    Mr Hands contended that the non-revocation decision was unreasonable in the legal sense as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li). In particular, he contended that the decision was “arbitrary or capricious” and lacked an evident and intelligible foundation. It was submitted that these features were particularly exposed in the Assistant Minister’s statement of reasons concerning the section titled “risk to the Australian community” and in the Assistant Minister’s reasoning as to why this outweighed the best interests of relevant minor children and other considerations favouring revocation.

41    The application of the ground of unreasonableness in the context of ministerial decision-making concerning the grant or cancellation of visas on character grounds was discussed at some length by the Full Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 and in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158. The Full Court’s observations in both those cases also apply to the statutory scheme relating to the discretion under s 501CA(4) of the Act. The same may be said in respect of the Full Court’s observations concerning judicial review for unreasonableness in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh).

42    Recently, in Griffiths v Minister for Immigration and Border Protection [2018] FCA 629 at [2]-[64], I made some general observations about the human dimension of the statutory scheme concerning the mandatory cancellation of visas on character grounds and the need for the Court to observe the boundaries of its jurisdiction. Some, perhaps many, people will view the Assistant Minister’s non-revocation decision in Mr Hands’ circumstances as harsh, but I accept the Assistant Minister’s contention that his decision was not unreasonable in the legal sense. The statement of reasons discloses an intelligible justification for the Assistant Minister’s decision. The statement of reasons indicates that the Assistant Minister weighed a range of competing considerations but ultimately decided, in the particular circumstances here, that the considerations which favoured revocation were outweighed by other considerations, including findings concerning the risk of Mr Hands reoffending and the need to protect the Australian community. As the Full Court observed in Singh at [47], it would “be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable”. If the decision be viewed as harsh or even “cruel” (as described by Dr Pritchard), it is within the Assistant Minister’s “area of decisional freedom” and is not arbitrary or capricious. Ground 3 is rejected.

43    Finally, there is another matter. It relates to the Supplementary Application Book which was filed by the Assistant Minister. It purported to contain a copy of the Department’s brief / submission to the Assistant Minister. It was plain, however, that the material presented to the Court was not the actual material which was before the Assistant Minister. That is because, inter alia, the body of the submission was undated and unsigned by the responsible Departmental officer. After Dr Pritchard expressed her concerns regarding the status of the document, the Court required the Assistant Minister’s counsel to obtain instructions that this document was the material which was placed before him, that ideally the actual document should be adduced, and the Court told what, if any, handwritten changes were made to the document. Subsequently, at the end of her oral address, the Assistant Minister’s counsel provided both to the Court and to Dr Pritchard several pages purportedly from the submission, which included the Assistant Minister’s signature, date and his response to the Department’s recommendations, but, significantly, not including the page signed and dated by the responsible Departmental officer. The Court then directed the Assistant Minister to provide a copy of the Departmental brief / submission that was provided to the Assistant Minister in the form that it went to the Assistant Minister.

44    In response to this direction, several hours later, the Assistant Minister’s solicitors provided to the Court and Dr Pritchard a copy of an email, screenshot and explanatory material which was said to indicate what material was before the Assistant Minister when he made the decision, and the process by which it was provided to him. It was explained that the Department’s submission had been communicated electronically to the Assistant Minister using the Parliamentary Document Management System. It was stated that the material had been received by the Department Liaison Officer at 12:24pm on 6 October 2017, and that the Assistant Minister signed the relevant material on 9 October 2017. This copy of the submission contained different information regarding the Authorising Officer and Contact Officer to that which was included in the copy contained at page 7 of the Supplementary Application Book. The true position was only revealed when the Court directed the Assistant Minister to provide the actual Departmental submission which was provided to him.

45    This is unsatisfactory. If the Minister or Assistant Minister wishes to put into evidence a copy of the Department’s submission in a judicial review case such as this where, for example, legal unreasonableness is claimed, it is essential that the actual document be adduced, including any handwriting on it which establishes the date on which the submission was sent, and any annotations by the decision-maker. It is not sufficient merely to produce a computer generated copy which is not a true reflection of what was sent and omits potentially important and relevant details. Otherwise, both the applicant and the Court are denied potentially relevant information concerning the material which was before the decision-maker when he or she made the decision.

Conclusion

46    For these reasons, the amended originating application must be dismissed. In view of the conduct relating to the Supplementary Application Book described above, I consider that there should be no order as to costs.

47    The Court expresses its profound gratitude to Dr Pritchard SC and Mr Gregory for accepting a referral from the Court to provide pro bono legal assistance to Mr Hands. They have presented Mr Hands’ case with their customary professionalism and thoroughness.

Associate:

Dated:    11 May 2018