FEDERAL COURT OF AUSTRALIA
McCutcheon v Minister for Immigration and Border Protection [2018] FCA 828
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The Respondent’s decision refusing to revoke the visa cancellation decision be quashed.
2. The matter be remitted to the Respondent for redetermination according to law.
3. The Respondent pay the Applicant’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.
KERR J:
1 This is an application for review of a decision of the Assistant Minister for Immigration and Border Protection (the Minister) made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act) not to revoke a visa cancellation decision.
2 Mr McCutcheon is a national of the United Kingdom who has resided in Australia since 1978, when he was 11 years old. On 28 September 2011 Mr McCutcheon was convicted of six counts of rape and a count of false imprisonment in the County Court of Victoria. He was sentenced to a total effective sentence of eight years’ imprisonment.
3 Mr McCutcheon’s Class BF Subclass 155 Resident Return visa (the visa) was mandatorily cancelled by a delegate of the Minister on 15 September 2016 pursuant to s 501(3A) of the Migration Act (the cancellation decision). Mr McCutcheon’s visa was cancelled because the delegate was not satisfied that he passed the character test as set out in s 501(6)(a) of the Migration Act on the basis that he had a substantial criminal record, defined in s 501(7) to include a person who has been sentenced to a term of imprisonment of 12 months or more.
4 Mr McCutcheon was notified of the cancellation decision on 15 September 2016 and invited to make representations pursuant to s 501CA(3) of the Migration Act. He requested that the cancellation decision be revoked on the same day, and advised that a “revocation package” would be sent subsequently. Mr McCutcheon made representations in support of his request in the prescribed manner and within the prescribed time frame pursuant to s 501CA(4)(a) of the Migration Act.
representations made by the applicant
5 In a “personal circumstances form” completed in support of his request for revocation, Mr McCutcheon indicated that he was concerned that his mother’s ill health would worsen, which would worry Mr McCutcheon and affect his mental health. Mr McCutcheon stated that since his incarceration, his mother’s health had deteriorated and he believed his imprisonment to be the cause. He believed that if he were deported his mother would get worse. He stated that he would like to be able to support his mother, as he believes that she needs a carer. The Applicant indicated that he would face difficulty returning to the UK, stating (at CB 58):
Although I know of family in Scotland I do not know them personally. I would be left to my own devises [sic] with no money and homeless.
6 The representations made by or on behalf of the Applicant are set out in the Court Book and include a detailed undated letter from Mr McCutcheon (CB 60-65). As is relevant to this application, Mr McCutcheon’s letter stated as follows:
Since my incarceration my [mother’s] health has deteriorated very quickly. She has had a triple by-pass, has had a pace maker inserted, and she has also suffered a stroke. I believe that my imprisonment has caused a considerable amount of stress and therefore has been a major cause of her ill health.
…
[Since] I have been in prison I have been compliant to all the rules and regulations and consider myself to be a model prisoner. I have had no incidents in my 5 year incarceration and have an excellent work ethic. I was painting at Hopkins Correctional Centre for over 3 years and have carried myself in a professional manner, as I have through my professional painting career.
I am currently at Marngoneet Correctional Centre to carry out all of my programs, including Sex Offender Program, Drug and Alcohol and Better Living Module. I know that after I have completed these programs I will have a better understanding of how I got myself into this position in the first place, and it will help me to avoid putting myself in such a position again. In my file it states that I am at a low risk to offend in this way again, and I can guarantee that this is a true and accurate statement. I do not and will not find myself in such a predicament again.
Although I know that I have family back in the U.K. both on my Mother’s side and my Father’s side, we have been estranged for over 40 years and I would not know any of them at all. All except one Aunty who came to Australia over 10 years ago for a holiday, and she is elderly and I have been told is in bad health. She would not be able to support me if I was sent back.
7 In a letter of support, Mr McCutcheon’s son wrote that his elderly grandmother (Mr McCutcheon’s mother) was “far too frail and sick to travel [from Western Australia] to Victoria, let alone the U.K” and that she faced the possibility of never seeing Mr McCutcheon again (CB 67). Mr McCutcheon’s sister wrote to the Minister in support of her brother, referencing their mother’s ill health (CB 68). Mr McCutcheon’s mother also wrote in support of her son’s revocation request (CB 69-70). She wrote:
Robert could not settle in the United Kingdom, he does not know anybody there as he has been in Perth since he was 10 years old.
I really need Robert home with me. My health at the moment is not the best. I have had a triple by-pass, 2 Strokes and a pacemaker inserted. All while Robert has been incarcerated. …
8 A brief letter at CB 71 written by Dr M Mustapha dated 4 December 2015 states as follows:
Re: ROBERT McCUTCHEON
To whom it may concern. This is to certify that [the Applicant’s mother] is suffering from the effects of stroke, coronary artery disease and unstable hypertension.
9 A letter written by the Applicant’s brother appears at CB 72-73, in which the following passages appear:
… I know that if Robert is deported back to the UK he will not have any support. We have been in Australia for 38 years and we have had no contact with any family members back in the UK. Although our sister has been to visit and an auntie visited about 10 years ago, that is the only contact we have had. Our mother left the UK with 3 young children in 1978 to escape spousal abuse. When we arrived in Australia it was a new start for all of us and our Mother severed all ties with anything to do with the UK, including family members on both my [parents’ sides]. So this is why we are estranged from them.
…
Our Mother is elderly and her health is not the best. She can not travel to see Robert. She has had a triple by-pass, 2 strokes and a pacemaker inserted all while Robert has been incarcerated. She would be devastated if Robert were deported. I believe her health would suffer immensely. Even though Robert is nearing 50 years old, he is still my Mum’s youngest child, her baby.
…
If he is deported, I do not like to think of what will happen to him in a Country without any support. If he is allowed to stay he will have an abundance of support that he will need on his release.
10 Numerous letters of support provided to the Minister on the Applicant’s behalf appear in the Court Book. Many of those make reference to Mr McCutcheon’s mother’s health, and to his lack of familial connections in the United Kingdom.
11 Mr McCutcheon provided a letter confirming his participation in the “Better Lives Program” between October 2016 and March 2017 (CB 167). That program is described as a “group-based intervention designed to target sexual offending behaviour”. The author of the letter commended Mr McCutcheon on his “development of a healthy lifestyle plan”. A certificate of completion for the “24 hour Alcohol Treatment Program” appears at CB 168. Various prison records appear at CB 83-160.
12 On 13 December 2017 the Minister decided not to revoke the cancellation decision and gave reasons.
BEFORE THIS COURT
13 The Applicant filed an originating application for review of a migration decision on 8 January 2018. That was subsequently amended on 23 March 2018, pursuant to orders of this Court.
14 The amended originating application advances three grounds of review. Those grounds all contend that the Minister denied the Applicant procedural fairness and/or constructively failed to exercise his jurisdiction by failing to give proper, genuine and realistic consideration to a representation made by the Applicant.
Overarching submissions
15 The written submissions advanced by both Mr McCutcheon and the Minister with respect to each ground are preceded by general legal submissions. It is convenient to set out those submissions and the applicable law before considering the individual grounds of review.
The Applicant’s overarching submissions
16 The written submissions advanced on behalf of the Applicant refer to the relevant legal principles at [8] to [12] as follows:
8. The Assistant Minister was obliged to afford the applicant procedural fairness in considering the revocation request. His Honour Justice Tracey considered the procedural fairness requirements of s.501CA(3) in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [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…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.
9. Picard was followed in Coker v Minister for Immigration and Border Protection [2017] FCA 929. Justice Moshinsky held at [56] – [57] that a failure to refer to the applicant’s submission that the parole board had found he was not at risk of re-offending was a breach of procedural fairness. His Honour also held at [57] that the failure to consider a significant submission also constituted a failure by the Assistant Minister to exercise jurisdiction and reach the necessary level of satisfaction required by s.501CA(4)(b) that there was not another reason to revoke the visa.
10. The key issue, therefore, is whether it can be inferred from the reasons that the Assistant Minister did not give proper, realistic, or genuine consideration to representations by the applicant that were relevant and critical to his case for revocation.
11. Similar issues to those raised in this application arose in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592. 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; and that it would be impossible for him to find work in Fiji (Buadromo at [49]). The Assistant Minister referred to the submissions in his statement of reasons, but did not make express findings accepting or rejecting the submissions. Justice Flick held that the Assistant Minister needed to “resolve” Mr Buadromo’s submissions by making findings. In the absence of findings the Assistant Minister had not given “proper genuine and realistic consideration” to the submissions. (Buadromo at [48] – [49]).
12. The applicant relies, in particular, on three aspects of his Honour’s reasoning:
a. a proper consideration of the submissions required an evaluation of the content and reliability of the submission, rather than noting a submission;
b. it could be inferred that because the Assistant Minister was required to give reasons by statute, that in the absence of an express finding, a finding had not been made; and
c. the reason it is insufficient to merely refer to a submission, is that, in the absence of a finding that submissions were accepted or rejected, the submissions may not have been considered at all.
(footnotes omitted)
The Minister’s overarching submissions
17 The Minister’s submissions as to matters of general principle were as follows:
12. In Buadromo, whilst the Court found ultimately (albeit, tentatively) that the decision-maker (also the Assistant Minister) had failed in respect of a number of claims made by the applicant, to give them ‘proper, genuine and realistic consideration’, that such assessment must proceed in every case with proper deference to established principles of construction of reasons, including:
12.1. 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 Assistant 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);
12.2. 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 (WAEE) at [47] concerning the ability to draw inferences from a failure to make express findings of fact in a statement of reasons (at [30]);
12.3. ‘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]);
12.4. the need to ‘constantly recognise the limitations placed around judicial review as opposed to merits review of an administrative decision’ (at [43]); and
12.5. 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….is notoriously difficult to define with any precision and depends upon the facts and circumstances of each individual case’ (at [46]).
13. Here … the Court should conclude that in this case, the revocation decision involved a proper consideration of the matters identified by the applicant as significant to his case, including the matters that are the subject of grounds one to three of his amended application.
(footnotes omitted)
18 The submissions filed on behalf of the Minister advised that the Minister had appealed the decision in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 (Buadromo). I note that the Minister’s appeal in Baudromo was heard by a Full Court on 16 May 2018. Judgment was reserved.
19 The Minister did not request an adjournment of the hearing of this matter pending the outcome of that appeal.
20 I proceed on the conventional basis that, while not strictly binding, as single judge of this Court, in comity, I should apply Baudromo as the considered reasoning of another single judge of the Court unless persuaded Flick J’s reasoning was clearly wrong. Notwithstanding the Minister’s appeal the Minister did not submit I should reach that high degree of satisfaction. I do not.
Consideration
21 I therefore will decide the present matter on the basis that Flick J correctly summarised the relevant case law in Buadromo at [25] to [31] as follows:
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.
22 I should also apply his Honour’s reasoning at [42] that the requirement for a decision-maker to give “proper, genuine and realistic consideration” to a claim demands more than simply “noting” the existence of that claim without “proceeding to engage in some assessment as to the merit of that which was being put forward”:
The requirement imposed by s 501G(1)(e), which is a “task required under the Act”, only reinforces the necessity for the Assistant Minister to complete his assessment by making findings of fact. In the face of s 501G, “the Court may draw certain inferences from what is not expressly set out in the Reasons as much as it may draw an inference from that which is expressly set out”: Stevens v Minister for Immigration and Border Protection [2016] FCA 1280 at [44], (2016) 153 ALD 346 at 358 to 359 per Charlesworth J. The absence of an express finding of fact may thus assist in reaching a conclusion that no finding was implicitly made.
23 However it is, and always remains, the statute language which governs the duty of the Minister. Cases such as Baudromo are relevant not because they are the source of the Minister’s duty but because they illuminate relevant general principles and give guidance to the Court as to the proper understanding and application of the statute. In the present instance the Minister’s decision arises out of his duties pursuant to s 501C of the Migration Act.
24 The Minister had been required to give Mr McCutcheon a written notice of the original cancellation decision together with the particulars of information relevant to that decision: s 501C(3)(a). The Minister had been required to invite Mr McCutcheon to make representations to him as to whether he should be satisfied that the original decision ought to be revoked: s 501C(3)(b).
25 Pursuant to s 501C(4) the Parliament conferred on the Minister the capacity to revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the person satisfies the Minister that the person passes the character test (as defined by section 501).
26 The Parliament thus expressly provided in the Migration Act that the Minister’s capacity to revoke the original decision was to be engaged if, but only if, Mr McCutcheon had made a representation in accordance with the Minister’s invitation. The Parliament, by confining the Minister’s capacity to that circumstance, required the Minister to give proper, genuine and realistic consideration to any representation made by Mr McCutcheon as was relevant to whether he passed the character test or whether there was “another reason” why the original decision should be revoked.
27 Mr McCutcheon’s sole entitlement on judicial review of the Minister’s adverse decision is that the Court exercise its constitutional function to supervise whether or not the Minister acted in compliance with the duty the Parliament conferred upon him.
28 In these proceedings it is uncontentious that Mr McCutcheon made a representation in accordance with the Minister’s invitation. His representation did not claim that he satisfied the character test. That question can be put aside. His representation went to the question of whether the Minister could be “satisfied … that there is another reason why the original decision should be revoked”.
29 The Minister’s obligation to give proper, genuine and realistic consideration to Mr McCutcheon’s representation is not to be understood as opening a back door to merits review. The Court looks to the Minister’s reasons, read fairly and in context, only to establish whether or not the Minister did comply with his statutory duty.
30 If the Minister gave appropriate attention to Mr McCutcheon’s representation but was not satisfied the representation constituted “another reason” to revoke the original decision, the Court simply stops at that point – assuming, for the purpose of responding to the parties’ overarching submissions, that the Minister’s decision has not been challenged for another reason.
31 However, the constitutional prohibition against the Court intruding into merits review has two sides.
32 If the Court, after having evaluated the Minister’s reasons fairly in context without an eye to detecting error, nonetheless concludes the Minister did not consider a representation made by Mr McCutcheon, the Court cannot reason along the lines that the Minister’s failure to take that factor into account would have been unlikely to have altered the outcome. The Court might strongly doubt that the Minister would have come to a different decision, but it is outside of the Court’s supervisory role to substitute its state of satisfaction for the state of satisfaction the Parliament has empowered only the Minister to form. Only if the Court were to conclude that an error could not result in a different outcome, would a question of refusing relief arise.
33 Having regard to those observations, I turn to the submissions the respective parties have advanced in regard to the three specific grounds of review contended for by the Applicant.
Ground 1
34 The first ground of review is as follows:
The Assistant Minister for Immigration and Border (Assistant Minister) protection denied the applicant procedural fairness and/or constructively failed to exercise his jurisdiction as required by s.501CA(4) of the Migration Act 1958 (Cth) (the Act) by failing to give proper, genuine, and realistic consideration to the applicant’s representation that he would be homeless and have no support in the United Kingdom. The failure was a jurisdictional error.
Particulars
a. A Delegate of the Minister for Immigration and Border Protection cancelled the applicant’s visa in accordance with s.501(3A) of the Act.
b. The applicant was invited to make representations pursuant to s.501CA(3) of the Act as to why the decision to cancel his visa should be revoked.
c. The decision not to revoke the original decision was made by the Assistant Minister.
d. Section 501G(e) of the Act required the Assistant Minister to provide reasons for the decision not to revoke the decision to cancel the applicant’s visa.
e. The Assistant Minister was obliged to afford the applicant procedural fairness.
f. The applicant made representations that he was estranged from his family in the United Kingdom and if he returned to the United Kingdom he would have no money and be homeless (Court Book, 58).
g. The representation was critical to the applicant’s case for revocation.
h. The Assistant Minister noted the applicant’s submission that he was estranged from his family and would have difficulty securing accommodation at [28] - [29] of his reasons, but did not make any finding as to whether the applicant had family support in the United Kingdom or if he would be homeless upon return.
i. It can be inferred from the Assistant Minister’s failure to make a finding, that he failed to give proper, genuine, or realistic consideration to the applicant’s representation.
The Applicant’s submissions
35 The Applicant filed written submissions as follows:
Ground 1: The Assistant Minister did not consider impediments to removal
13. The applicant outlined the difficulties he would face upon return to the United Kingdom in his application for revocation:
Being away from my family will cause me great mental strain and I’m sure my mother’s health will continue to get worse.
Although I know of family in Scotland I do not know them personally. I would be left to my own devices with no money and homeless.
14. The applicant also submitted that his mother’s ill health would cause him to worry and would “effect me mentally” [sic].
15. The applicant’s submissions in relation to the impediments to his return were targeted. The submission regarding homelessness, the lack of familial support, and separation from his family were the only difficulties raised regarding removal. The submissions were critical to his case for revocation.
16. The Assistant Minister noted at [28] - [29] that the applicant had made a submission that he was estranged from his family in Scotland and would be without accommodation and financial support.
17. The Assistant Minister made a finding at [34] - [35]:
I note that Mr McCutcheon has indicated he intends to return to work as a painter after his release and I find that his trade skills would be useful in finding work in the UK.
I find that the UK is culturally and linguistically similar to Australia and has comparable standards of health care, education, social welfare, and housing support. Mr McCutcheon will have equal access to these as other UK citizens and I expect an initial hardship will ease over time.
18. The Assistant Minister did not make a finding as to whether the applicant would be homeless upon return to the United Kingdom. The Assistant Minister referred only to the applicant having equal access to any housing support. The Assistant Minister did not consider whether the applicant would, even with that support, face the prospect of homelessness either in the short or long-term. The Assistant Minister found any hardship would ease, but did not identify that hardship. The Assistant Minister’s reasons do not demonstrate proper or genuine consideration of the applicant’s submission that he would experience homelessness.
19. This inference is supported by the fact that the Assistant Minister, by contrast, made a number of express findings elsewhere in his reasons such as:
a. the applicant would like to assist his son and daughter in law to care for his grandchildren;
b. the applicant’s remorse for his offending was genuine; and
c. the applicant’s separation from his mother would affect his well-being.
20. The matter is analogous to Buardromo [sic]. Mr Buardromo [sic] submitted that it would be impossible for him to find work upon return to Fiji. The Assistant Minister found that although Mr Buardromo [sic] would suffer hardship, he could “seek support from his family to assist him to readjust and settle in Fiji” and that he had “work skills which may help him in gaining employment in Fiji”. Justice Flick held that the Assistant Minister’s reasons fell short of making a finding in relation to the specific claim by Mr Buardromo [sic] that it would be “impossible” for him to find work. Similarly, the Assistant Minister’s reasons in this case fall short of making a finding in relation to the applicant’s specific claim that he will be homeless on arrival in the United Kingdom.
21. The failure to properly consider the applicant’s submission was a denial of procedural fairness. Alternatively, the submission as of such significant [sic], that the Assistant Minister failed to exercise his jurisdiction to determine if there was another reason the decision should be revoked.
36 In oral argument counsel for the Applicant, Mr Kenneally, submitted that the Minister’s findings at [34] and [35] were so broad and general that they could not be understood as responding to the representation made by the Applicant that, if returned to the United Kingdom, he would be homeless and without support. The Minister’s conclusion that the Applicant would have equal access to health care, education, social welfare, and housing support was not responsive to the specific representation made by Mr McCutcheon. For that reason Mr Kenneally submitted that the position was analogous to that which Flick J had held to invalidate a decision in Buadromo at [49] where the Minister had had regard to the general economic and social structure of Fiji but had failed to address Mr Buadromo’s specific representation that he would be unable to find work and support his family if returned to that country.
37 Mr Kenneally submitted that the Minister’s statement at [35] that any initial hardship suffered by the Applicant would ease was not a finding of fact as to whether the Applicant would experience hardship or what that hardship would be. It was not a finding about his representation. Mr Kenneally submitted that the Minister had been obliged to make a finding with respect to the Applicant’s representation that he would be homeless upon return to the United Kingdom. It was the absence of any finding at all, whether it be that the Applicant would be homeless for a short period, a long period, or not at all that the Applicant took issue with.
38 Mr Kenneally acknowledged the force of the Minister’s written submission that a finding about whether or not Mr McCutcheon would become homeless would necessarily involve some conjecture or speculation on the Minister’s part, but submitted that the Minister was required to consider the actual representation that the Applicant had made.
39 Mr Kenneally submitted that the Minister’s findings at [35] were tied to the services described as being comparable to those available in Australia, whereas the representation made by the Applicant did not relate to whether or not the services in the United Kingdom were equivalent to those available in Australia. His representation had been that he would be released from custody in Australia, and returned to the United Kingdom where he would be homeless. Mr Kenneally submitted that the Minister’s reasons did not recognise or consider the particular vulnerability of the Applicant as a person recently released from prison with no familial or financial support upon return to the United Kingdom.
The Minister’s submissions
40 The Minister’s written submissions with respect to the first ground of review were as follows:
14. … [I]n relation to ground one, it is accepted that the applicant made representations concerning the difficulties he apprehended he would face on any return to the United Kingdom, including that a possible consequence of any such return would be that (through lack of familial support and money), he would be homeless.
15. The Minister gave consideration to the extent of impediments to the applicant if he was removed from Australia (and returned to the United Kingdom) at [28]-[35] of his statement of reasons. In this context, the Minister recorded that he had considered such impediments as they related both to the applicant establishing himself and maintaining ‘basic living standards’, the latter concept being capable of comprehending the applicant’s housing situation.
16. At [29], the Minister referred to the submission made by the applicant that ‘his family there are either estranged or too old and frail to provide any support to him should he be returned to the UK, so he would be without accommodation and financial support’. Then, at [34] and [35], the Minister recorded findings that the applicant’s ‘trade skills would be useful in finding work in the UK’ and that the UK ‘has comparable standards of health care, education, social welfare and housing support and that the applicant would have ‘equal access to these as other UK citizens’ (emphasis added).
17. The findings recorded in these passages operated on the applicant’s claim that he might face homelessness on return to UK, in precisely the manner contemplated by the Full Court in [Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593] in the sense that they recorded findings about the applicant’s ability to locate work and to access housing support that, due to their character of greater generality, subsumed and provided a resolution to, the applicant’s more ‘targeted’ submission that he would be vulnerable on return to UK to homelessness. There was no necessity in these circumstances for the Minister to record a separate finding that was directed expressly at this matter.
41 In oral argument counsel for the Minister, Ms Symons, submitted that Mr McCutcheon’s representation that if he would be homeless and without support had been dealt with by the Minister (at [28] to [35]) in the context of the Minister’s consideration of the impediments that he would face if he were removed from Australia. Ms Symons accepted that the Minister’s use of the word “note” in those paragraphs evidenced a cognisance on the part of the Minister of the representations made by Mr McCutcheon without his expressing a conclusion. However, Ms Symons submitted that the Minister’s consideration of Mr McCutcheon’s intention to return to work and the fact that his trade skills would enable him to find work in the United Kingdom (as set out at [34]), together with the Minister’s finding at [35] that the Applicant would have equal access to the comparable health care, education, social welfare and housing support exposed that the Minister had given consideration to and made findings in respect of Mr McCutcheon’s representation.
42 The two paragraphs ([34] and [35]) should be read as the Minister’s findings that the issue of financial support would be resolved by the Applicant obtaining gainful employment in addition to accessing social welfare, and the issue of homelessness would be resolved by the Applicant’s access to housing support. Ms Symons submitted that the Minister’s reference to housing support must comprehend the question of accommodation, and consequently must be understood as being responsive to the applicant’s submission that he would be without accommodation.
43 Ms Symons submitted that [34] and [35] of the Minister’s reasons exposed that he had given consideration to the specific representation about his becoming homeless made by Mr McCutcheon. It had been addressed by reference to the availability of housing services and welfare and Mr McCutcheon’s intention to work and his possession of trade skills. Ms Symons submitted that those matters had gone into a “melting pot” of issues that had been weighed by the Minister when coming to a final conclusion. The Minister had concluded that any initial hardship would ease over time.
44 Ms Symons submitted that the task of the Minister had been to consider the representations made by Mr McCutcheon but he had not been required to make a positive finding as to whether or not Mr McCutcheon would be homeless. The Minister was required to consider the claimed hardship and consider any factors that would ameliorate such hardship. He had done that. To require the Minister to make a positive finding as to whether the Applicant would be homeless would be to require him to engage in conjecture or speculation.
Consideration
45 The Minister’s reasons at [28] to [35] referred to Mr McCutcheon’s claim that although he has relatives in Scotland he does not know them and, if returned to the United Kingdom, he would be “left to [his] own [devices]” without money, and would be homeless.
46 At [28] the Minister stated that he “had regard” to the impediments that the applicant will face “in establishing himself and maintaining basic living standards”.
47 At [29] the Minister “note[d]” that the Applicant’s family in the United Kingdom are either estranged or too old and unable to provide financial support to him and as a consequence “he would be without accommodation and financial support”.
48 At [34] the Minister “note[d]” that Mr McCutcheon had expressed an intention to find work as a painter after his release, and that his trade skills would be useful in finding work in the United Kingdom.
49 The Minister found (at [35]) that:
…[T]he UK is culturally and linguistically similar to Australia and has comparable standards of health care, education, social welfare and housing support. Mr McCUTCHEON will have equal access to these as other UK citizens and I expect any initial hardship will ease over time.
50 The Applicant’s claim at CB 58 that he would be “left to his own [devices]” standing alone might be ambiguous. However, I am satisfied that that statement, read in context with the material provided by the Applicant in support of his revocation request (see for example CB 65; CB 70; CB 72; CB 75; CB 82) was a representation that he was estranged from all his relatives living in the United Kingdom (except an elderly aunt who would be unable to support him) and that if returned, he would be without familial and financial support and would be homeless. I am further satisfied that the Minister accepted that representation as having been made, given that the Minister included in a summary of the Applicant’s claims at [12] that “he has no family support in the United Kingdom (UK) and would know nobody there”.
51 I proceed on the basis that Mr McCutcheon’s representation that he would have no family support and would be homeless was a specific representation of an asserted detriment of sufficient consequence to have required the Minister to consider it as a potential reason to be satisfied that there was “another reason why the original decision should be revoked”. Such a conclusion is required: Picard v Minister for Immigration and Border Protection [2015] FCA 1430. Ms Symons’ submissions implicitly accepted that premise.
52 I remind myself, for reasons I have set out at [30] to [32], that it is not for the Court to trespass on the merits of the Minister’s decision. If the Minister gave appropriate attention to Mr McCutcheon’s representation that he would be homeless if he were returned to the United Kingdom but was nevertheless not satisfied the representation constituted “another reason” to revoke the original decision, the Court simply stops at that point. Conversely, if the Minister did not consider that representation as required by law, the Court cannot reason that the Minister’s failure to take that factor into account would have been unlikely to have altered the outcome.
53 I also remind myself that a decision of a Minister, as with all administrative decisions, is not to be read with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287). If on a fair reading the Minister’s reasons as a whole reveal that that representation was given proper consideration, it is not fatal to the decision that there is no express finding; evidence that the Minister gave consideration to the representation may be contextual and circumstantial.
54 In that regard, the Court gives particular attention to the cautionary 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 (WAEE) 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.
55 Ms Symonds made no submission that the Minister recorded an express finding about Mr McCutcheon’s specific representation. I accept that to be so. The Court therefore is required to give attention to whether a fair reading of the Minister’s decision reveals that the Minister had rejected a factual premise upon which the representation rested or that the Minister had made findings of greater generality subsuming Mr McCutcheon’s representation.
56 There is nothing in the Minister’s reasons that the Court has been able to identify that would support an inference that the Minister had rejected a factual premise upon which Mr McCutcheon’s representation had been based. The Minister merely stated he had “note[d]” and “[had] regard to” the claims advanced by the Applicant. I therefore turn to the question of whether the Minister made other findings of greater generality which subsumed the Minister’s duty to consider that representation.
57 I reject Ms Symons’ submission that the Minister’s conclusions at [34] and [35] are findings of greater generality that subsumed the Minister’s obligation to make findings regarding Mr McCutcheon’s specific representation. The Minister’s conclusions as recorded in those paragraphs were as follows:
34. I note that Mr McCUTCHEON has indicated he intends to return to work as a painter after his release and I find that his trade skills would be useful in finding work in the UK.
35. I find that that the UK is culturally and linguistically similar to Australia and has comparable standards of health care, education, social welfare and housing support. Mr McCUTCHEON will have equal access to these as other UK citizens and I expect any initial hardship will ease over time.
58 I accept Mr Kenneally’s submission that the availability in the United Kingdom of equivalent social services as exist in Australia is not a finding subsuming the significance of the Applicant’s representation and obviating the necessity for the Minister to have given it consideration. A finding that the governments of both nations provided comparable standards of health care, education, social welfare, and housing support (including, I am prepared to infer, the provision of assistance to homeless people) is not a finding that homelessness is not a problem in Australia or the United Kingdom. A fair reading of the Minister’s reasons does not suggest he was suggesting any such thing. It is thus not a finding that Mr McCutcheon would not be homeless. Neither is the Minister’s finding that Mr McCutcheon’s trade skills would be useful in obtaining work in the United Kingdom a finding that he would not be homeless upon his removal to that country.
59 The Minister’s task pursuant to s 501C(4) of the Migration Act had required him to give consideration to the actual representation that Mr McCutcheon had advanced. Mr McCutcheon’s specific representation was that he would suffer a significant detriment by becoming homeless if he were removed from Australia to the United Kingdom. The Minister’s duty was to give proper, genuine and realistic consideration to that representation. That duty required the Minister to evaluate whether the premises of Mr McCutcheon’s representations were to be accepted or not. Unless a conclusion were reached in that regard, any subsequent decision as to whether the representation was adequate to satisfy the Minister that there was “another reason” for revoking his delegate’s original cancellation decision was made untethered from that duty. A decision made without regard to the Minister’s statutory duty is liable to be set aside for jurisdictional error.
60 I reject Ms Symons’ submission that the Minister had no duty to make a “positive” finding, assuming her to mean an actual finding. Ms Symons is correct in submitting that a finding that something will or will not happen in the future involves a degree of “speculation”, but that is not a reason for the duty to be ignored. In every s 501C(4) decision the Minister’s mind will be directed to consequences of events (removal from Australia) yet to occur. The Parliament has conferred upon the Minister the responsibility to satisfy himself as to whether such claimed consequences are sufficient to revoke an earlier visa cancellation.
61 Hypothetically, the Minister could have found that Mr McCutcheon faced a real risk of long term homelessness but nonetheless such detriment was outweighed by balancing considerations such that the Minister was not satisfied it was a reason to revoke his delegate’s original decision. Alternatively, hypothetically, the Minister could have found that because of the standard and accessibility of housing services in the United Kingdom, and the Applicant’s capacity to find work, the detriment asserted by Mr McCutcheon would, if it were to happen, be brief and was not to be given significant weight.
62 Subject to potential review on the basis that such hypothetical conclusions would be invalid for legal unreasonableness, the merits were entirely for the Minister.
63 What was not open to the Minister was to reach no conclusion in respect of Mr McCutcheon’s representation and, in consequence, pass over the necessity to give it consideration.
64 The Court is mindful that it should not read the reasons of a decision maker with an eye keenly attuned to the perception of error. But with that in mind, the Court finds nothing in the reasons that identify the Minister’s findings with respect to the representation that the Applicant would be homeless. The Minister’s duty to give reasons intersects in that regard with this Court’s obligation not to engage in impermissible merits review. As Rares J observed in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at 388:
Hence, the importance the courts have placed on the absence from the written statement … of some matter that would have demonstrated that the decision was made according to law or not affected by jurisdictional error. A written statement ensures transparency in the tribunal’s exercise of a power conferred on it by the Parliament. This transparency is essential … to enable the Court to exercise the judicial power of the Commonwealth in reviewing whether the decision was made according to law or affected by a jurisdictional error.
65 I reject that I am entitled to find that the global statements contained at [11], [60] and [69] that the Minister “assessed all of the information”, “considered Mr McCutcheon’s representations and the documents he has submitted in support”, “considered all relevant matters” and had “given full consideration to all of these matters” are sufficient in the absence of any contextual links in the Minister’s reason as a basis for the Court to be satisfied that the Minister had validly discharged his statutory duty pursuant to s 501CA(4) of the Migration Act. I rely on the cases cited by Flick J in Baudromo at [27] in support of that conclusion, while acknowledging, as I held in Isley v Minister for Immigration and Border Protection [2018] FCA 632 at [129] that where a Minister specifically asserts that they have taken a matter into account there must be something in his or her reasons (whether expressly or by necessary implication) to require a court to draw a contrary inference. In this review, the vacuum of findings and reasoning entitles this Court to draw such a contrary inference.
66 Having concluded that the Minister did not consider the representation made by Mr McCutcheon, the Court cannot reason that the Minister’s failure to take that factor into account would have been unlikely to have altered the outcome. Ms Symons did not submit it could not have. The Court has no authority to substitute its state of satisfaction for the state of satisfaction the Parliament has empowered only the Minister to form.
67 I uphold Ground 1 of the Applicant’s review.
Ground 2
68 The second ground of review is as follows:
The Assistant Minister denied the applicant procedural fairness and/or constructively failed to exercise his jurisdiction as required by s.501CA(4) of the Act by failing to consider the applicant’s representation that his mother's health would deteriorate if he was removed to the United Kingdom. The failure was a jurisdictional error.
Particulars
a. The applicant repeats and relies on particulars (a)- (e) in ground 1.
b. The applicant made a representation that his mother’s health would get worse if he had to return to the United Kingdom (Court Book 54, 57, 73):
c. The Assistant Minister did not refer to, or make any express finding, to the applicant’s representation that his mother’s health would get worse: and
d. It can be inferred the Assistant Minister failed to consider the affect [sic] of the applicant’s removal on his mother’s health.
69 The Applicant’s written submissions with respect to the second ground of review are:
Ground 2: The Assistant Minister did not consider the impact of the applicant’s visa cancellation on his mother’s health
22. The applicant made representations that since his incarceration his mother’s health had deteriorated: she had triple by-pass surgery, had a pacemaker inserted and suffered a stroke. The applicant said he believed that his mother’s ill health had been affected by the stress associated with his incarceration.
23. The Applicant said that upon release from custody he would like to provide care to his mother. The Applicant also submitted that if he were deported he was sure his mother’s health would get worse. The applicant’s submission that his mother’s health would get worse was significant to the applicant’s case. The applicant made the submission twice in the personal circumstances form (see CB 54 and 57), and the applicant’s brother John McCutcheon corroborated the claim in his letter to the Minister (see CB 73).
24. In the absence of a reference to or an express finding to the submission it can be inferred that the Assistant Minister did not consider the applicant’s submission that his mother’s health would get worse if he had to return to the United Kingdom.
25. The submission is not referred to in the summary of the applicant’s representations at [12] of the Assistant Minister’s reasons, or in the Assistant Minister’s consideration at [19] – [27] of the applicant’s ties to Australia.
26. The representation was incidentally referred to at [33] where the Assistant Minister found that the applicant would be worried about his mother’s ill health if returned to the United Kingdom. However, the applicant’s submission that his mother’s health would get worse, and that her health would cause the applicant worry were separate issues. The impact of the applicant’s departure on his mother’s health was relevant to the consideration of the hardship to the applicant’s family in Australia. The applicant’s claim he would worry about his mother while in the United Kingdom, was relevant to the applicant’s capacity to establish himself in the United Kingdom.
27. The Assistant Minister did make a finding that the applicant’s mother would suffer “practical hardship in the absence of what assistance he may otherwise have provided her” and “emotional anguish”. These findings do not address the submission that his mother’s health would deteriorate as a consequence of the applicant’s removal.
28. The affect [sic] of removal on his mother’s health was a significant reason put forward by the applicant for why the cancellation should be revoked. The failure to consider it was a jurisdictional error.
(footnotes omitted)
70 Counsel for the Applicant made oral submissions that the representations made by the Applicant with respect to his mother fall within three distinct subsets: that the Applicant would provide care for his mother if he were allowed to remain in Australia; that his mother would suffer emotional hardship if he were removed from Australia; and that her physical health would further deteriorate as a result of the Applicant’s removal from Australia. Mr Kenneally submitted that, unlike Grounds 1 and 3 where the Applicant alleges that representations were considered by the Minister but no findings were made, the Applicant contends that the Minister did not deal with the third subset of this representation at all.
71 In his oral submissions Mr Kenneally submitted that each of the three subsets should be understood as distinct representations that required express consideration by the Minister. The causal link between the first two of those representations and the third was supported by the assertions of the Applicant and his brother. Mr Kenneally submitted it was open to the Minister to accept that the Applicant’s mother would suffer emotional anguish and practical hardship in that she would not have her son to provide her with care, but to reject that her health would deteriorate as a result. What was not open to the Minister was to fail to consider the representation that the Applicant’s mother’s health would deteriorate and make no findings at all.
72 Mr Kenneally submitted that the Minister’s reasons and findings with respect to the first two aspects of this representation were comprehensive and thorough, and that the absence of such consideration with respect to the representation that the Applicant’s mother’s health would deteriorate supports an inference that that issue was not considered at all. It was submitted that, where the Minister has referred to the Applicant’s mother’s declining health at [23], he does not go on to consider that claim or make any findings as to whether her health would deteriorate further as a consequence of Mr McCutcheon’s removal from Australia.
The Minister’s submissions
73 The Minister’s written submissions were as follows:
18. In relation to ground two, the applicant’s complaint is that the Minister did not consider the impact of the applicant’s visa cancellation on his mother’s health. This conclusion is said to follow (by way of inference) from ‘the absence of a reference to or an express finding to the submission’.
19. However, and having regard to the principles of construction that guide the assessment of reasons in this context, it must equally be observed that:
19.1. the Minister faithfully recorded the applicant’s claims concerning the nature and extent of his mother’s health concerns (referring also in this context to evidence from the mother’s doctor that identified her medical conditions) and the submission that his mother’s health had deteriorated as a result of the applicant’s incarceration (at [23]);
19.2. the Minister recorded (and accepted) the submission from the applicant’s brother, that their mother would be devastated should the applicant be removed to the UK (at [25]);
19.3. the Minister considered the effect of non-revocation upon the applicant’s immediate family and accepted in respect of the applicant’s mother that she would experience both emotional hardship and ‘further practical hardship’ (at [27]); and
19.4. the Minister, albeit in a different context, acknowledged and accepted that the applicant’s mental wellbeing would be affected through concerns for his mother’s declining health in his absence (at [33]).
20. In such circumstances, where the Minister’s statement of reasons was otherwise comprehensive and responsive to matters that related to the applicant’s mother, an inference that the Minister failed to properly consider the claim about the mother’s deteriorating health is not readily (or comfortably) available. This is particularly so where (and contrary to examples cited in Buadromo), the decision is not impugned on the basis that the Minister had before him competing or conflicting submissions or evidence that he was required to resolve in order to demonstrate a proper consideration of the matter. Indeed, the inference that is more readily available is that the Minister proceeded on the basis that he accepted all that the applicant had to say about his mother’s poor health, including that it was in a state of deterioration.
(footnotes omitted)
74 At the commencement of Ms Symons’ oral submissions, she referred the Court to various representations made with respect to Mr McCutcheon’s mother’s health. She submitted that while the medical certificate (at CB 71) supported the assertions regarding her ill health at the time of writing, it was not directed to the question of what impact the Applicant’s removal from Australia might have on her condition.
75 Ms Symons submitted that the Minister accepted (at [23]) that Mr McCutcheon’s mother was unwell and that her health had deteriorated as a result of his incarceration, as confirmed by the letter from her doctor. At [25], the Minister considered the representation made by the Applicant’s brother that their mother would be devastated if the Applicant were removed from Australia, and expressly accepted that “she will feel particular emotional anguish over his removal from Australia”.
76 At [27], the Minister referred to his having considered the effect of non-revocation upon Mr McCutcheon’s immediate family and accepted that the Applicant’s mother would suffer further practical hardship “in the absence of what assistance he may otherwise have provided her”. Ms Symons submitted that that finding was responsive to the Applicant’s representation that he would be unable to care for his mother if removed from Australia. Ms Symons assented to the proposition from the Court that the qualified language contained in that paragraph presumably relates to the Minister’s earlier observation (at [24]) that Mr McCutcheon’s intention to provide care for his mother appeared to be inconsistent with his expressed desire to remain part of his daughter’s life (in Victoria), and also assist his daughter-in-law to care for her young family (in Perth).
77 Ms Symons submitted that the representation that the Applicant’s mother’s health would deteriorate, divorced from the issues of the Applicant providing her with care and the emotional anguish she would suffer as a result of his removal, was not so great as to require express consideration by the Minister as a stand-alone representation. Ms Symons further submitted that the Minister’s reasons provided a basis for an inference to be drawn that that issue had in fact been taken into account by the Minister in his assessment of the impact that Mr McCutcheon’s removal from Australia would have on his mother.
78 Ms Symons submitted the Court should also have regard to the general statement at [11] of the Minister’s reasons that, in making the non-revocation decision, the Minister had “assessed all of the information set out in the attachments”, including the representations made by Mr McCutcheon regarding why the cancellation decision should be revoked. Counsel submitted that it was evident that the Minister had been cognisant of the representation that Mr McCutcheon’s mother’s health would decline, as evidenced by the express reference to that claim at [33], although made in the context of the claim that Mr McCutcheon’s own mental wellbeing would be affected by concern for his mother’s declining health.
Consideration
79 At [12], the Minister summarised the representations made by Mr McCutcheon. His summary includes Mr McCutcheon’s representation that “his mental health would be affected if deported as he would be worried about his mother’s failing health”. That representation was explicitly made by the Applicant in relation to the impediments that he would face if returned (see CB 45; CB 57). The representations that were made with respect to his mother’s health were not otherwise included in that summary.
80 The representations that his removal would negatively impact his mother were made in the Applicant’s “personal circumstances form” beneath the heading “impact the cancellation of your visa would have, or has had, on your family” at CB 54. They are also evident from the various letters of support written by the Applicant’s family and friends (many of which refer to his mother’s poor health), as well as a letter from the Applicant, and a letter from his mother.
81 Notwithstanding the fact that the impact of the Applicant’s removal on his mother was omitted as a stand-alone representation in the Minister’s summary at [12], I am satisfied that on a fair reading of the Minister’s reasons as a whole it is evident that that issue was given proper, genuine and realistic consideration:
23. I note Mr McCUTCHEON has stated that his mother has a stroke and a triple heart bypass with a pace maker inserted, and a letter from her doctor confirms her health conditions; her health has deteriorated as a result of his incarceration. Mr McCUTCHEON further states that is needed to help support his mother.
24. Mrs Mccutcheon provided a letter to the Department stating that with her failing health, she needs Mr McCUTCHEON home with her in Australia. Mr McCUTCHEON has also stated he would like to be his mother’s carer on release. I accept that Mr McCUTCHEON wishes to support his mother and that she wants him to do this, but note that she has necessarily had to manage without him since his imprisonment and has two other children living in Australia, and available information gives no reason to believe that they could not provide assistance. I further note that he wishes to remain part of the life of his daughter in Victoria and to help his daughter-in-law with his grandchildren in Perth, which would to at least some extent be incompatible with being his mother's carer.
25. Mr McCUTCHEON’s brother … also stated he knows their mother will be devastated should Mr McCUTCHEON be removed to UK. I accept that she will feel particular emotional anguish over his removal from Australia.
…
27. I have considered the effect of non-revocation upon Mr McCUTCHEON's immediate family in Australia and accept that those persons would experience emotional hardship; and his mother would further suffer some further practical hardship in the absence of what assistance he may otherwise have provided her. I find that Mr McCUTCHEON has been making a positive contribution for 29 years to the community and I have taken this into account and also recognise the effect of non-revocation for extended family members and friends in Australia.
82 In those paragraphs, the Minister distinguished between his mere acknowledgment of representations that Mr McCutcheon had made, and his findings of fact with respect to those claims. The Minister “note[d]” the statements made about the Applicant’s mother’s poor health, which had deteriorated because of his incarceration, and her need for care. The Minister then “accept[ed]” that Mr McCutcheon wished to support his mother, but noted that she had managed without his care throughout his incarceration, and that there was no evidence to suggest Mr McCutcheon’s two siblings could not provide that care. The Minister also observed that that would be somewhat incompatible with the Applicant’s expressed intention to remain in his daughter’s life (who lives in Victoria) and to assist with the care of his daughter-in-law’s children in Perth. Whilst perhaps a callous assessment, that expresses a factual finding regarding the merits of the representation that the Applicant would care for his unwell mother.
83 The Minister’s acceptance of the Applicant’s desire to support his mother contains an implicit acceptance of the underpinning representation that she is unwell and in need of care; if the Minister did not accept as a matter of fact that the Applicant’s mother was unwell, then a finding that the Applicant wished to care for her would be nonsensical.
84 At [25], the Minister referred to the statement made by the Applicant’s brother that their mother would be devastated if Mr McCutcheon were removed from Australia. The Minister then “accept[ed]” that their mother would feel particular anguish at his removal. Whilst not in the context of their mother’s physical health, I am satisfied that that exposes a factual finding responsive to the claim that was made by the Applicant’s brother.
85 The Minister’s reasons at [27] “accept[ed]” that Mr McCutcheon’s immediate family would experience emotional hardship, and express an acceptance of the representation that the Applicant’s mother would experience “further practical hardship in the absence of what assistance [the Applicant] may otherwise have provided her”.
86 I accept the Applicant’s submission that the representations advanced by the Applicant that his removal would impact his mother fall into three categories: the Applicant’s intention to care for his mother; the fact that she would suffer emotional anguish; and the fact that the Applicant’s removal from Australia would cause her health to deteriorate.
87 However, I am not satisfied that each of those categories was a distinct representation that required separate assessment and findings. The substantive representation made by Mr McCutcheon was that his removal from Australia would negatively impact on his mother. I am satisfied that the constituent elements of that representation were appropriate to have been considered together, and I am further satisfied that the Minister’s reasons adequately expose his consideration of the relevant factors, findings of fact, and conclusions. They do not reveal an absence of “proper, genuine and realistic consideration” with respect to the claimed impact on the Applicant’s mother.
88 This ground of review must fail.
Ground 3
89 The third ground of review is as follows:
The Assistant Minister denied the applicant procedural fairness and/or constructively failed to exercise his jurisdiction as required by s.501CA(4) of the Act by failing to consider the applicant’s claim that he was a “model prisoner”'. The failure was a jurisdictional error.
a. The applicant repeats and relies on particulars (a) - (e) in ground 1.
b. The applicant represented that he had been a model prisoner for the duration of his incarceration (Court Book. 65).
c. The Assistant Minister recorded at [54] of his reasons that the applicant had stated he had been a model prisoner but made no finding as to whether or not the applicant was a model prisoner.
d. It can be inferred from the Assistant Minister’s failure to make a finding, that he failed to give proper, genuine, or realistic consideration to the applicant’s representation.
The Applicant’s submissions
90 The Applicant’s written submissions were:
Ground 3: The Assistant Minister did not consider if the applicant was a model prisoner
29. The applicant submitted that he would not pose any risk to the Australian community if released. The applicant relied on his rehabilitation in custody, his promises of support from family and friends, his genuine remorse, and his commitment to not re-offending. Specifically, the applicant submitted that he had been a “model prisoner” throughout the entirety of his incarceration.
30. The Assistant Minister made express findings that the applicant had shown genuine remorse, that he had undertaken rehabilitative programs in custody that reduced the risk he would offend, and that he had a supportive family. The Assistant Minister noted that the applicant’s rehabilitation had not been tested outside a custodial setting. The Assistant Minister concluded there was still a risk the applicant would re-offend, albeit low.
31. The Assistant Minister, however, failed to make a finding in relation to the applicant’s claim to have been a model prisoner. The Assistant Minister recorded the applicant’s submission at [54] of his reasons. The Assistant Minister made no finding, merely observing that the prison records provided by the applicant appeared to be incomplete. The Assistant Minister did not explain what, if any, relevance the incomplete status of the prison records had on his decision. The Assistant Minister’s failure to make an express finding, coupled with his observation that the prison records were incomplete suggest that he did not properly consider the applicant’s submission that he was a model prisoner.
32. The applicant’s representation that he had been a model prisoner was relevant to the question of his character, in particular his respect for law enforcement. It was relevant and critical to the applicant’s claim that the cancellation should be revoked because he would not re-offend upon his release from custody.
(footnotes omitted)
91 In his oral submissions Mr Kenneally submitted that the representation made by Mr McCutcheon that he had been a model prisoner was referred to explicitly by the Minister at [54]. The Minister had acknowledged that representation, and that it was generally supported by the various prison records provided, but had observed that those records appeared to be incomplete. That, he submitted, was the entirety of the Minister’s consideration of that claim. The Minister made no conclusion or finding with respect to the incomplete prison records. Counsel submitted that the inference to be drawn is that that issue remained unresolved by the Minister, presumably on the basis of the incomplete evidentiary basis for the representations.
The Minister’s submissions
92 The Minister’s written submissions with respect to the third ground of review were:
21. In relation to ground three, the applicant’s contention is that, in the context of considering whether the applicant would pose any risk to the Australian community if released, the Minister failed to give express consideration to the applicant’s submission that he was a ‘model prisoner’.
22. However, this claim (which was referred to by the Minister in his statement of reasons at [54]) properly construed just served to attach a label to the various matters that the applicant had identified, within the custodial environment, as supporting his ultimate claim that he would not pose any risk to the Australian community.
23. The Minister both acknowledged and then considered each of the separate and substantial matters raised by the applicant as directed to this ultimate submission. This is evident from:
23.1. [49] – where the Minister notes that the applicant has expressed remorse for his action and accepts that this is genuine;
23.2. [49] – where the Minister refers to and acknowledges the rehabilitative training undertaken by the applicant and the ‘salutary effect’ of imprisonment, which the Minister acknowledges has ‘substantially reduced’ the likelihood of the applicant committing further offences of the seriousness which led to his incarceration; and
23.3. [54] – where the Minister acknowledges, by reference to the ‘model prisoner’ claim, that the various prison reports provided by the applicant ‘generally supported’ his claimed work ethic and behaviour, notwithstanding they appeared to be incomplete.
93 In oral submissions Ms Symons submitted that this particular representation had been expressly referred to at [54] of the Minister’s reasons. That paragraph considers the representations that the Applicant had been a model prisoner, had no incidents whilst incarcerated, and had worked as a painter. The Minister accepted that to be the case, as it was generally supported by the prison records. That reasoning had fed into the Minister’s ultimate conclusion at [58] that the Applicant’s likelihood of reoffending has been reduced.
94 Ms Symons submitted that the observation at [54] that the prison records appear to be incomplete did not detract from what the Minister took from the reports that were before him. The Minister’s consideration of Mr McCutcheon’s representation had been sufficient, especially in light of the fact that the representation that he had been a model prisoner had been advanced at a fairly general level.
Consideration
95 At CB 65, Mr McCutcheon represented that he had been a model prisoner in the context of the following two paragraphs of an undated letter sent to the Minister:
[Since] I have been in prison I have been compliant to all the rules and regulations and consider myself to be a model prisoner. I have had no incidents in my 5 year incarceration and have an excellent work ethic. I was painting at Hopkins Correctional Centre for over 3 years and have carried myself in a professional manner, as I have through my professional painting career.
I am currently at Marngoneet Correctional Centre to carry out all of my programs, including Sex Offender Program, Drug and Alcohol and Better Living Module. I know that after I have completed these programs I will have a better understanding of how I got myself into this position in the first place, and it will help me to avoid putting myself in such a position again. In my file it states that I am at a low risk to offend in this way again, and I can guarantee that this is a true and accurate statement. I do not and will not find myself in such a predicament again.
96 The Minister’s reasons with respect to those paragraphs appear under the heading “Risk to the community”:
46. I have considered whether Mr McCUTCHEON poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps Mr McCUTCHEON has undertaken to reform and address his behaviour. I have also taken into account Mr McCUTCHEON’s overall conduct in the custodial and non-custodial environment, and his insight into the offending.
47. I am aware that Mr McCUTCHEON acknowledged he has a previous ‘extensive’ record of offending and that his offending has been linked to the abuse of drugs and alcohol, beginning when he mixed with bad company and when he had experienced breakdown of relationships. The court heard that Mr McCUTCHEON’s father was a heavy drinker and physically abusive to his mother and himself, which may have contributed to his offending behaviour. I accept that this background helps to explain his abuse of alcohol and drugs over a long period, but it does not in any way mitigate the seriousness of his offending and points to the need to deal with these issues to avoid further offending, which Mr McCUTCHEON himself has acknowledged.
48. I take note that Mr McCUTCHEON stated his most recent offending was ‘totally out of character for me’ and that all supporting letters from his family members and friends agree with this view. I acknowledge that he has no other history of sexual or violent offending. However the isolated nature of the offences of 10 December 2009 does not diminish their very serious nature.
49. Mr McCUTCHEON has expressed remorse for his actions and I accept that this is genuine. He also states that he is now rehabilitated and his chances of re-offending are non-existent. I acknowledge that he has undertaken rehabilitative training which, together with the salutary effect of imprisonment, has substantially reduced the likelihood of him committing further offences of the seriousness which led to his incarceration, but whether he can maintain this outside the controlled custodial environment has yet to be demonstrated.
50. Mr McCUTCHEON states he has been drug free for nearly 20 years and alcohol free for nearly six years because of incarceration and he will stay alcohol free after his release. I note Mr McCUTCHEON has requested to have an alcohol anklet fitted on him on his release. I accept that he has a strong resolve to avoid alcohol but again note that his ability to do this has not yet been tested in the open community, where he will be subject to a different range of pressures and stresses, especially if he enters into another relationship.
51. I note that Mr McCUTCHEON concedes that alcohol has been ‘a major factor in my offending’ and he has a long history of offences linked to alcohol and drug abuse. Despite this, and the court hearing in 2011that while he had consumed about five to six pots of beers in the two hours before he arrived at the house leading up to his most recent offending, he claimed that he was not affected by alcohol in committing the offences, though he says that his judgement was ‘clouded’. I give regard to the judge's finding that alcohol was not the only contributing factor in Mr McCUTCHEON’s offending, and that the judge also identified a tra.it of 'obsessive jealousy' which underpinned Mr McCUTCHEON’s conduct on the night, but I still consider that alcohol contributed to the events and that Mr McCUTCHEON’s rehabilitation prospects depend at least partly on getting control of his alcohol abuse.
52. I note that the available information does not indicate any significant effort by Mr McCUTCHEON to address the issue of substance abuse until his most recent prison sentence.
53. I acknowledge that the judge regarded Mr McCUTCHEON’s prospects of rehabilitation as ‘reasonably good’.
54. Mr McCUTCHEON states he has been a ‘model prisoner’ with nil incidents and has been working as a painter in prison. I have noted the various prison reports provided by Mr McCUTCHEON which generally support his claimed good work ethic and behaviour, although these reports appear to be incomplete.
55. I am mindful that Mr McCUTCHEON has provided evidence of completing a Sex Offender Program, and a Drug and Alcohol and Better Life Program for sex offenders during his most recent period of incarceration.
56. I accept that Mr McCUTCHEON has a supportive family and states their support will help to keep him focus thus not re-offend. I accept this but note that such support was available when Mr McCUTCHEON offended, so it did not then prevent him offending.
57. I note that Mr McCUTCHEON has offers of accommodation and support available to him on release from family members and friends, as well as work. Whilst these may operate as protective factors, I note Mr McCUTCHEON’s good work history did little to dissuade his offending in the past, both in terms of his less serious criminal conduct and his sexual offences.
58. I find that while the likelihood that Mr McCUTCHEON will reoffend has been reduced since the time of his 2009 offences, there remains some ongoing risk, albeit low, that he will reoffend.
59. I consider that should Mr McCUTCHEON reoffend in a similar manner, it could result in physical/psychological harm to members of the Australian community.
(emphasis added)
97 In the Court’s opinion it is evident from those paragraphs that the Minister had given proper, genuine and realistic consideration to Mr McCutcheon’s rehabilitation, his remorse, and his risk of reoffending.
98 The Minister explicitly stated that he had taken into account the rehabilitative steps taken by the Applicant, and his “overall conduct in the custodial and non-custodial environment” (at [46]). The Minister then considered various factors and made a number of findings regarding the Applicant’s history of offending and background. The Minister accepted the genuineness of Mr McCutcheon’s expression of remorse for his crimes (at [49]) and acknowledged the rehabilitation programs that he undertook whilst incarcerated. At [54], as emphasised above, the Minister acknowledged the Applicant’s statement that he had been a model prisoner. The Minister did not make an explicit finding as to whether or not the Applicant was, in fact, a model prisoner. The Minister concluded at [58] that the Applicant’s risk of reoffending had been reduced since 2009. It is evident that that conclusion is based on the Minister’s consideration of the entirety of the representations and circumstances as set out in the preceding paragraphs: the Applicant’s remorse; his participation in rehabilitation programs; his family background; his previous alcohol abuse; his work ethic; and his behaviour whilst in prison.
99 In considering this ground of review, I have again had regard to the observations of French, Sackville and Hely JJ in WAEE at [47], as set out at [54] above.
100 I am satisfied that the Minister was not required to make an explicit factual finding with respect to the Applicant’s claim that he was a model prisoner. The Minister’s findings in that regard were subsumed in his consideration at [46] to [59] of his reasons. The claim that the Applicant had been a model prisoner was not of sufficient significance to require consideration and findings of fact as a standalone issue; it was one element of the circumstances surrounding the Applicant’s likelihood of reoffending, rehabilitation and remorse set out under the heading “Risk of reoffending”.
101 This ground of review must fail.
Disposition
102 As the first ground of review has been upheld, the revocation decision must be quashed, and the Minister ordered to determine the revocation request according to law. The Respondent must pay the Applicant’s costs.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr. |
Associate:
