FEDERAL COURT OF AUSTRALIA

Mowatt v Minister for Home Affairs (No 2) [2018] FCA 1157

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs, as agreed or as assessed.

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

REASONS FOR JUDGMENT

steward j:

Introduction

1    The applicant has resided in Australia since the age of five, having arrived in Melbourne on 13 October 1967 together with his brother and parents. He was born in England and holds United Kingdom citizenship. On 4 March 2015, a delegate of the respondent, at that time the Assistant Minister for Immigration and Border Protection (the “Minister”), cancelled the applicant’s Class BF Transitional (Permanent) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”), on the basis that the applicant had a substantial criminal record and had been sentenced to 18 months imprisonment. Following receipt of submissions from the applicant, on 6 May 2016, the Minister decided not to revoke the decision to cancel the visa. Before me, the applicant now seeks judicial review of the Minister’s decision not to revoke the visa cancellation decision.

Background

2    The applicant has committed a number of crimes over a period of around 36 years. A National Police Certificate dated 11 February 2016 records over 80 court dates between 16 May 1978 15 December 2014 in respect of various offences, including, for example, intentionally causing serious injury, theft, and wilfully damaging property. The applicant has a long history of alcoholism and suffers from a number of chronic medical conditions. He has been diagnosed with, among other things, acquired brain injury, personality disorder, asthma, respiratory problems, hypertension, morbid obesity, chronic back pain and bronchitis.

3    In November 2007 and again in May 2012, the applicant received formal visa cancellation warnings from delegates of the Minister. On both of these occasions, a delegate of the Minister made a decision not to cancel the applicant’s visa on character grounds.

4    On 11 July 2014, a Magistrate sentenced the applicant to a term of 18 months imprisonment for charges of unlawful assault, assaulting police, attempted robbery and failing to answer bail. This conviction prompted the decision of the Minister, by his delegate, to cancel the applicant’s visa.

5    On 12 March 2015, the applicant completed a pro forma request for revocation of a mandatory visa cancellation under s 501(3A), listing his reasons for revocation as being chronic health issues and the fact that he has not lived in England for 48 years. The revocation request was later supplemented by submissions prepared by Victoria Legal Aid on behalf of the applicant dated 13 December 2015, which enclosed reports about the applicant’s physical and mental health difficulties. These submissions, which outlined the applicant’s life, speak of alcohol abuse, strained family relationships and periods of homelessness. It was submitted that the applicant’s “medical profile makes it highly likely that he will not be medically fit to be forcibly removed to the United Kingdom”, and that as such, “there is a real possibility of indefinite detention pending removal”. It was further submitted that, “even assuming he is assessed as medical fit for forcible removal”, he would “face overwhelming impediments in establishing himself in the United Kingdom”.

6    By letters dated 24 February 2016 and 4 March 2016, the Minister advised the applicant of information which might be taken into account in considering whether to revoke the cancellation decision and invited the applicant to comment on that information. In response, Victoria Legal Aid advised, on 7 March 2016, that no additional submissions would be made on behalf of the applicant.

7    On 9 May 2016, the applicant was notified of the Minister’s decision not to revoke the decision to cancel the applicant’s visa. The application for judicial review was originally filed in the Federal Circuit Court of Australia on 10 June 2016. On 12 October 2016, the Federal Circuit Court ordered, by consent, that the application in the Federal Circuit Court be transferred to this Court.

8    On 6 June 2017, Pagone J made orders granting leave to the applicant to amend his application for judicial review to include an additional ground of review, being that the decision to cancel the visa pursuant to s 501(3A) was invalid. However, following the decision of the High Court in Falzon v Minister for Immigration and Border Protection [2018] HCA 2, which upheld the constitutional validity of s 501(3A) of the Act, the applicant abandoned this ground.

Legislative Framework

9    Section 501(3A) of the Act was inserted into the Act with effect from 11 December 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). It provides:

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

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

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

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

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

10    The Minister’s power to revoke a decision made by virtue of s 501(3A) is set out in s 501CA of the Act. Section 501CA provides:

(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.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(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.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

The Minister’s Decision under s 501CA(4) of the Act

11    The Minister found that the applicant had made representations in accordance with the invitation given under s 501CA(3) and that the applicant did not pass the character test. The Minister’s application of s 501CA(4)(a) and s 501CA(4)(b)(i) is not in dispute in these proceedings.

12    The Minister’s decision not to revoke the visa cancellation turned on whether the was another reason why the original decision should be revoked pursuant to s 501CA(4)(b)(ii). The Minister considered the applicant’s ties to Australia, the extent of impediments if he were removed and the protection of the Australian community.

13    The Minister accepted that, if the applicant were unable to travel due to his health issues, the potential consequence of prolonged or indefinite detention of the applicant would likely have adverse impacts on his psychological and physical health. The Minister also accepted that the applicant has no support network in the United Kingdom, which would increase the difficulties he would face if he were to be deported.

14    The Minister found that the applicant “has demonstrated an inability to obey the law and an inability to control his anger and antisocial behaviour.” The Minister noted that the applicant, whilst in detention, had been reported for abusive and aggressive behaviour in connection with a number of incidents. The Minister also took into account a finding in a report from the Magistrates’ Court of Victoria in 2005 that the applicant had “a propensity for violent outburst after engaging in binge drinking”. The Minister concluded that there was an ongoing risk of the applicant re-offending, which could cause physiological and/or physical or financial harm to members of the Australian community.

15    After balancing the considerations set out above, the Minister concluded that protection of the Australian community outweighed the factors in favour of revocation.

Grounds of Review

16    Mr Barrington of counsel, who appeared for the applicant, attacked the Minister’s decision not to revoke the cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act on two separate grounds:

(1)    first, the decision was said to be either illogical or legally unreasonable because the Minister, in assessing the likelihood that the applicant would re-offend in the future, had failed to have regard to his earlier acceptance of the applicant’s poor health. In particular, the Minister did not take into account, so it was argued, his own finding that the applicant was exposed to an “extremely high risk” of an impending acute health crisis, which possibly might prevent him from being medically fit to be removed from Australia and therefore subject to potential indefinite detention if his visa cancellation was not revoked;

(2)    secondly, the Minister was said to have fallen into jurisdictional error in not giving any, or “appropriate”, consideration to the possibility that the applicant might be indefinitely detained in Australia if his visa were to be revoked because of his poor health.

Disposition

17    The starting point of the analysis here is a recognition that s 501CA(4)(b)(ii) of the Act confers upon the Minister a broad dispensing power, which might be described as a statutory power of clemency. The power is different in nature to the power to cancel a visa under section 501(2) of the Act. As the Full Federal Court observed in BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82 at [28]-[30]:

The task of the Minister required by s 501(2) of the Migration Act, which was examined by the Full Court in Moana [(2015) 230 FCR 367], is not the same as that imposed on the Minister by s 501CA.

Section 501(2) requires the Minister to assess his or her level of satisfaction as to whether the person has passed the character test as defined by s 501(6). Section 501(6) is relatively prescriptive, including s 501(6)(d) which requires the Minister to consider whether, in the event the relevant person is allowed to enter or to remain in Australia, there is a risk that the person would, inter alia, engage in further criminal activity or represent a danger to the Australian community (or to a segment of that community).

On the other hand s 501CA, in particular s 501CA(4), requires the Minister to engage in a different decision-making process. Pursuant to s 501CA(4) the Minister may revoke a visa cancellation decision if the person makes representations and the Minister is satisfied either that the person satisfies the character test or that there is another reason why the original decision should be revoked. The factors to which the Minister can have regard in determining whether or not to revoke a visa cancellation decision are unconfined by the statute, subject to the principle that they must be those which can be implied from the subject-matter, scope and purpose of the legislation: Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

18    Having said that, in appropriate cases, analogies may usefully be drawn from the jurisprudence concerning s 501(2) of the Act: cf BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153; approved in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [124].

19    Thus, at first instance in BSJ16 ([2016] FCA 1181), Moshinsky J made an important observation about the power conferred by s 501CA(4)(b)(ii). His Honour said at [68]:

By parity of reasoning with the cases on s 501(2) discussed above, the Minister in exercising the power conferred by s 501CA(4) has no duty to evaluate the risk of harm to the Australian community “in any particular way or to ascribe any particular characterisation to the quality of the risk”: see Brown [(2015) 235 FCR 88] at [41], citing Moana [(2015) 230 FCR 367] at [71] and Ayoub [(2015) 231 FCR 513] at [44]. In other words, there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational (in the sense used in cases such as Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1).

(My emphasis)

These observations were recently endorsed by Burley J in Chen v Minister for Immigration and Border Protection [2017] FCA 46 at [59]-[61].

20    Here of course, illogicality and irrationality are expressly alleged.

Ground One

21    The first ground was presented in two alternative ways. It was said that the decision was either illogical or irrational in the sense described by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, or was legally unreasonable in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Either way, there was no dispute as to the applicable law.

22    In SZMDS, the test for illogicality was said by the applicant to have been articulated by Crennan and Bell JJ at [131] as follows:

The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

23    In Li, the test for legal unreasonableness was said by the applicant to be expressed by Hayne, Kiefel and Bell JJ at [72] as follows:

Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

Their Honours also said at [66]:

This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

(Footnotes omitted)

French CJ observed at [30]:

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu [(1999) 197 CLR 611] that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence.” As Professor Galligan wrote:

“The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.”

A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.

(Footnotes omitted)

24    The last paragraph in the above passage is important. A distinction should be drawn between irrational or arbitrary reasoning and mistaken or incorrect reasoning. What the law permits, and what it strikes down, falls to be determined by the correct delimitation of the boundaries of decisional freedom and legal reasonableness. Those boundaries are ascertained in each case from a correct analysis of the language of the provision conferring the power or the discretion in question, together with the applicable statutory context and purpose. As Hayne, Kiefel and Bell JJ said in Li at [67]:

In Klein v Domus Pty Ltd [(1963) 109 CLR 467 at 473], Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [(1998) 194 CLR 355], requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

(Footnotes omitted)

25    In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, the Full Federal Court articulated seven propositions concerning the test for legal unreasonableness. The sixth and seventh were in these terms (at [64] - [65]):

Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh [(2014) 231 FCR 437] at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li [(2013) 249 CLR 332] at [76] (Hayne, Kiefel and Bell JJ); Stretton [(2016) 237 FCR 1] at [13] (Allsop CJ).

Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

But the Court also said the following at [59]:

…the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).

(My emphasis)

26    There may be, in my view, difficulties in labelling a course of reasoning, or a resultant decision, as irrational or illogical, or as lacking an evident and intelligible justification or as being obviously disproportionate. All of these words, arguably, denote an expression of severe or strong disagreement with a given course of reasoning or particular decision. Yet mere disagreement, however strong, with the merits of reasoning deployed or with an impugned decision, does not justify curial intervention; the Court’s task is “strictly supervisory”.

27    What justifies curial intervention in the case of an allegation of illogicality or irrationality is whether the impugned decision is one which no rational or logical decision maker could make on the same evidence: SZMDS at [130].

28    What justifies curial intervention in the case of an allegation of legal unreasonableness is whether the decision falls outside the boundaries of decisional freedom as determined by a correct construction of the provision in question.

29    Doubtless, the two tests may, practically speaking, overlap. Each is the product of a similar approach to statutory construction. As Gageler J observed in Li at [90]:

Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.

(Footnotes omitted)

The occasion for any intervention in either case should be rare. As Gageler J also observed in Li at [113]:

Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case.

30    Counsel for the applicant submitted that the Minister’s ostensible failure to consider the applicant’s health went to two aspects of the exercise of power under s 501CA(4)(b)(ii): it went to the possibility of re-offending and the ongoing risk of re-offending. In that respect, the applicant placed reliance upon the sixth and seventh propositions from Eden, supra, upon the fact that since Li, the decision of Lord Greene, M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 is neither the starting point nor the end point here (Li at [68]), and upon the last sentence of [76] of Li which states as follows:

Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification

31    In my view, the language of s 501CA(4)(b)(ii), together with its statutory context, suggest that the boundaries of decisional freedom here are wide. There are, in that respect, and for this purpose, relevant similarities with the power in s 501(2) of the Act, which was described in Eden in these terms at [19]:

…there are a number of indicators that suggest that the Minister’s discretion under s 501(2) is, and is intended to be, broad. That is a relevant consideration in assessing whether a decision under s 501(2) of the Act is unreasonable in a legal sense. The indicators include, but are not necessarily limited to, the following: the absence of an express list of considerations to be taken into account; the broad statement of the object of the Act in s 4(1) as being to “regulate, in the national interest, the coming into and presence in, Australia of non-citizens”; the fact that the discretion is conferred upon the Minister who holds political office and is accountable to Parliament; the fact that a decision under s 501(2) which is made by the Minister personally is not subject to merits review; and the fact that the Minister is obliged by s 501G(1)(e) of the Act to provide a written statement of reasons.

32    Each of the factors listed in this passage are present in the case of s 501CA(4)(b)(ii). They also support the existence of a broad power. I would add a further consideration, namely that the power is of a relieving or dispensing kind which is expressed in a most unconfined way. The test to be applied is not tied, unlike s 501(2), to a reasonable suspicion that a person does not pass the character test or to the Minister’s satisfaction that the character test has or has not been passed. Rather, the test in s 501CA(4)(b)(ii) is premised upon the act of cancellation under s 501(3A) having taken place, and the issue of the application of the character test is relevantly addressed elsewhere, namely in s 501CA(4)(b)(i). It follows, that the area of decisional freedom should be at least as large as that applying under s 501(2), if not much larger.

33    Here, and with respect to counsel for the applicant, whether the matter be judged from the standards of illogicality, or legal unreasonableness, I am not satisfied that the Minister’s ostensible failure to consider the applicant’s health in the way suggested in assessing the risk of re-offending involved a jurisdictional error of law. Instead, and with respect, criticising the Minister for failing to consider the applicant’s poor health for the purposes of evaluating that risk, is a criticism of the merits as to how the Minister assessed that risk. In that respect the following passage from Eden at [69] is apt:

The difficulty is that, if the Minister’s view was open on the facts, it was not for the primary judge to effectively overturn that finding, and replace it with his own finding, in evaluating the reasonableness of the Minister’s decision. It is difficult to see how the Minister’s decision could be said to be legally unreasonable if it was based on findings, including essentially subjective findings concerning the seriousness of offending behaviour, which were open on the facts and therefore could not be described as irrational or illogical.

34    In my view, the effect of the applicant’s submission here was to invite me to overturn the Ministers findings concerning the risk of re-offending, simpliciter. However, at best, the Minister’s reasoning was only mistaken or incorrect; it was not illogical and it fell within the boundaries of decisional freedom.

35    In that respect, it is not disputed that the Minister took into account the applicant’s poor health; it was expressly considered for the purposes of assessing the risk of indefinite detention. Moreover, if it matters, there was material before the Minister submitted on behalf of the applicant which supported the presence of a risk that the applicant would re-offend, even in the face of his medical difficulties. In the letter written by Victoria Legal Aid to the Department of Immigration and Citizenship on 20 July 2012 in support of the proposition that the applicant’s visa should not be cancelled, the author of that document stated:

[The applicant] suffers from alcoholism, an alcohol-related brain injury and from chronic obstructive pulmonary disease. His borderline level of intellectual functioning, attributable to his brain injury, severely limit his ability to plan and organise his daily life in Australia. He suffers from severe memory deficits which include the loss of memory about events in his recent past. He would be at severe risk of coming to significant harm if he were to be deported to a country of which he has no memory and where he has no contacts or support.

Notwithstanding these serious medical problems, the author of this letter was of the view that there was a risk that the applicant would reoffend. The author stated:

It is acknowledged that [the applicant’s] brain injury, personality style and general life circumstances and previous offending make it likely that [the applicant] will commit further criminal offences in future.

No material was advanced before the Minister which contradicted these propositions. Nor was it suggested in any material presented to the Minister that the applicant’s medical condition had deteriorated so severely since the writing of this letter as to render it unreliable. In that respect, there was evidence before the Minister that whilst in detention, the applicant had recently behaved in an aggressive and abusive manner on a number of times. In these circumstances, I am not satisfied that there was “no logical connection between the evidence and the inferences or conclusions drawn” by the Minister in the sense that these words were used in SZMDS. I am also not satisfied that on the material before the Minister the decision he reached about the risk that the applicant would re-offend was “‘plainly unjust’, ‘arbitrary’, ‘capricious’, ‘irrational’, ‘lacking in evident or intelligible justification’, and ‘obviously disproportionate’”, in the sense that these words were used by the full Federal Court in Eden.

Ground 2

36    It is not disputed that the Minister took into account the risk of indefinite detention. At [22] to [24] of the reasons for decision, the Minister wrote:

I had regard to the submission that [the applicant] is prone to shortness of breath and coughing fits, and that his physical and mental health conditions represent an “extremely high” risk of an impending acute health crisis, which possibly prevent him to be medically fit to be removed from Australia and therefore subject to potential indefinite detention if his visa cancelation is not revoked.

I have considered the recent health information received from [International Health and Medical Services], the health services provider in the detention centre, which confirms [the applicant] is currently on mediation and under active medical care for his physical and mental health issues. I note there are no specific acute health concerns raised and there is no finding of him being unfit to travel.

However, should [the applicant] be unable to travel, I have had regard to the prospect of [the applicant] having to face the prospect of prolonged or indefinite detention. The prospect of prolonged or indefinite detention may be a practical consequence of my decision if his visa cancelation is not revoked. I acknowledge that this is likely to have adverse impacts on his psychological and physical health. I accept that the prospect of indefinite detention is likely to have an ongoing adverse effect on [the applicant].

I also refer to [13] of the statement of reasons which states:

In the representations submitted by or on his behalf, [the applicant] has articulated reasons why the original decision should be revoked, which include: his ties with Australia, possible consequence of indefinite detention if physical and mental health precludes removal, and the extent of impediments he faces upon removal.

37    However, there is no express reference to this fact in the reasoning which appears under the heading “Conclusion”, which commences from [45] of the reasons given by the Minister. As the applicant submits:

In paragraphs [48]-[51], the Respondent refers to all but one principal issue discussed under the headings “Strength, nature and duration of ties” and “Extent of impediments if removed”, being:

(a)    the length of time that the Applicant has resided in Australia;

(b)    the hardship that the Applicant’s brother may face if the Applicant is removed;

(c)    the Applicant’s positive contribution to the Australian community;

(d)    the Applicant’s lack of connection to the United Kingdom, and the obstacles that he will face if returned; and

(e)    the Applicant’s physical and mental health conditions.

The Respondent notes that he has “considered” each of these issues.

However, the Respondent does not make reference to his finding at paragraph that “[t]he prospect of prolonged or indefinite detention may be a practical consequence of [the Respondent’s] decision if [the Applicant’s] visa cancellation is not revoked”. Against the background of:

(a)    the “Conclusion” section seemingly providing an exhaustive list of the factors taken into account; and

(b)    each other factor of a similar nature being referred to,

the Respondent’s failure to refer in the “Conclusion” section to the possibility that the Applicant may be held in indefinite detention if his visa cancellation were not revoked strongly suggests that this factor was not given any, or given appropriate, consideration.

38    For the moment, for the purposes of considering this ground, it may be assumed that the potential for indefinite detention is a mandatory consideration to be considered in exercising the power in s 501CA(4)(b)(ii), as it is under s 501(2): cf Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29; cf Charlie v Minister for Immigration and Border Protection [2018] FCA 607 at [26]. However, I am not satisfied that the risk of indefinite intention was not taken into account in reaching the Minister’s decision. I am also not satisfied that it was given only “cursory consideration” falling short of “active intellectual process”, to use the language of the Full Federal Court in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99. The risk was given express consideration at [22] to [24], supra, and then at [45] under the heading “Conclusion”, where the Minister records the following:

I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by section 501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, [the applicant].

In that respect this case may be contrasted with that of Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 where “at no stage” was the risk of indefinite detention considered by the Minister. As Kenny and Perry JJ said at [119]:

At no stage in his statement of reasons, however, did the Minister mention the possibility that a consequence of cancelling the appellant’s visa might be the appellant’s indefinite detention in Australia, because, as paragraph [12] of the submission stated, the appellant’s ill-health might preclude his return to the United Kingdom. The Minister accepted in submissions to this Court that this information was before him when he made the decision to cancel the appellant’s visa and, indeed, the Minister’s counsel drew attention to the fact that the Minister had signed and dated the departmental submission.

39    In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 the Full Federal Court said at [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.

40    In my view, I would not infer that the risk of indefinite detention was not considered by the Minister, given the express reference to it in the reasons of the Minister at [13] and [22] to [24] and the statement at [45] under the heading “Conclusion” that the Minister had considered “all relevant matters”. In that respect, and as is well known, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Brennan CJ, Toohey, McHugh and Gummow JJ said at 271-2:

When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1995) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

(Footnotes omitted)

41    For these reasons, grounds one and two are rejected. The application is dismissed with costs.

Associate:

Dated:    8 August 2018