FEDERAL COURT OF AUSTRALIA

Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162

ORDERS

THE COURT ORDERS THAT:

1.    The name of the Respondent be changed to the Minister for Home Affairs.

2.    The Applicant be granted an extension of time to file an application for review of the decision made by the Assistant Minister for Immigration and Border Protection on 31 August 2017 refusing to exercise the power under s 501CA(4) of the Migration Act 1958 (Cth) (Act) to revoke an earlier decision made pursuant to s 501(3A) of the Act to cancel the Applicant’s Class BF Transitional (Permanent) Visa (Visa).

3.    The Applicant has leave to rely on his Originating Application dated 1 May 2018.

4.    A writ of certiorari be issued quashing the decision by the Assistant Minister for Immigration and Border Protection on 31 August 2017 refusing to exercise the power under s 501CA(4) of the Act to revoke an earlier decision made pursuant to s 501(3A) of the Act to cancel the Applicant’s Visa.

5.    A writ of mandamus be issued requiring the Respondent to re-determine, according to law, the Applicant’s application that the Respondent revoke the cancellation of his Visa.

6.    The Respondent pay the Applicant’s costs of the proceeding as agreed or taxed.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INRODUCTION

1    The applicant, Jamel Schmidt, seeks judicial review of a decision of the Assistant Minister for Immigration and Border Protection made on 30 August 2017 under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke a decision to cancel Mr Schmidt’s visa under s 501(3A). The decision to revoke was made on 13 January 2015. The visa was a class BF Transitional (permanent) visa. In these reasons I shall refer to the Assistant Minister as the Minister; see s 19 Acts Interpretation Act 1901 (Cth).

2    Mr Schmidt is a citizen of the United States of America who was born in 1974. He lived in the United States with his mother until 1979, when she was tragically murdered in an armed robbery at her workplace. Mr Schmidt’s grandfather, who lived in Australia, then took him to live in Australia. Since the age of 14 Mr Schmidt has been convicted of numerous criminal offences. He has been issued with notices of intent to consider cancellation of his visa under s 501(2) of the Act on 3 prior occasions. He was also issued with a formal counselling letter on 9 November 2007, which stated that any further conviction would lead to the question of his visa cancellation being reconsidered. He has committed several further offences after that time, which ultimately led to his visa being cancelled on 13 January 2015.

3    Mr Schmidt, who was represented by Professor Reg Graycar of counsel, filed written submissions in advance of the hearing and sought an extension of time within which to file his application for review. That extension was not opposed by the Minister, who was represented by Mr Nicholas Swan of counsel.

4    The grounds of the application for review are as follows:

(1)    The decision of the Respondent not to revoke the decision to cancel the applicant's visa is vitiated by jurisdictional error in that the Respondent made findings for which there was no evidence.

(2)    The Respondent's decision is vitiated by jurisdictional error on the basis that the decision is illogical or irrational in that there was no "logical connection between the evidence and the inferences or conclusions drawn" (cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [135]).

(3)    The Respondent's decision is vitiated by jurisdictional error on the basis that the decision-maker failed to give proper, genuine and realistic consideration to the strength, nature and duration of the applicant's ties, and to the extent of impediments he would experience if removed from Australia.

5    I shall return to the particulars supporting the grounds later in these reasons. In broad terms they focus on three aspects of the reasoning of the Minister. First, that in considering the extent of impediments that Mr Schmidt would face if he is removed to the United States, the Minister found that he has largely led an itinerant and unattached lifestyle in Australia for which there was no evidentiary foundation. Secondly, that in considering the extent of impediments that Mr Schmidt would face if he is removed to the United States, the Minister found that the United States has a government welfare system that offers a level of support “broadly comparable to that in Australia” for which there was no evidentiary foundation or logical or rational basis. Thirdly, that the Minister found that Mr Schmidt had no indigenous genetic makeup and that he was not officially recognised as having indigenous heritage, a finding for which there was no logical connection between the evidence and the inferences or conclusions drawn, and in respect of which the Minister gave no proper, genuine and realistic consideration.

6    There is no dispute that the Minister was correct to find that Mr Schmidt did not pass the good character test on the ground that he had a substantial criminal record within the meaning of s  501(6)(a) on the basis of s 501(7)(c) of the Act. Under s 501(7)(c), a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more.

7    Before turning to consider the grounds of review it is necessary briefly to summarise the statement of reasons given by the Minister.

2.    THE MINISTER’S REASONS

8    The Minister explains his reasons for declining to revoke the original decision to cancel Mr Schmidt’s visa by reference to his consideration of the following subjects: the best interests of children affected by the removal of Mr Schmidt from Australia; the strength, nature and duration of ties that Mr Schmidt has to Australia; the extent of impediments that Mr Schmidt will face if he is removed to the United States; and considerations relevant to the protection of the Australian community which include the nature of Mr Schmidt’s criminal conduct and the risk that he poses to the Australian community.

9    In relation to the best interests of children, the Minister refers to Mr Schmidt’s two minor children, Darnell (born in 2012) and Phoenix (born in 2008) and notes that Darnell is the son of Ms Ulrich, who was the victim of an aggravated assault offence for which Mr Schmidt was convicted on 15 May 2013. The Minister refers to court records concerning the conviction that indicate that Mr Schmidt assaulted Ms Ulrich, who was 27 weeks pregnant with Darnell at the time, during which Mr Schmidt shouted that he was going to kill the baby, punching her multiple times in the stomach and the back. However, Ms Ulrich has given a letter in support of Mr Schmidt’s application, and the Minister records that Mr Schmidt and Darnell have a close relationship and that Ms Ulrich now wishes Mr Schmidt to play an active role in Darnell’s upbringing. The Minister notes that Mr Schmidt appears to have no active role in Phoenix’s life but concludes that it is in the best interests of both Phoenix and Darnell for Mr Schmidt to be permitted to remain in Australia.

10    In relation to the strength, nature and duration of the ties that Mr Schmidt has to Australia, the Minister notes that Mr Schmidt has resided in Australia for some 38 years and came here as a young child. He notes that Mr Schmidt has a bond with his uncle and that he also has aunts and cousins whom he regards as family in Australia. He also notes that Mr Schmidt is in a relationship with an indigenous Australian woman, Ms Moyle, who has known him for over 25 years and who would be emotionally and spiritually affected if Mr Schmidt were removed from Australia.

11    The Minister then refers to aspects of Mr Schmidt’s lifestyle and the fact that he identifies as a partly indigenous Australian. These are matters relevant to the grounds of appeal and it is appropriate to quote the Ministers reasons:

27.     In the transcript of proceedings from 11 March 2015, the judge summarised Mr SCHMIDT's life by stating 'Your grandfather died when you were about 13 years of age. Since that time, you have cared for yourself. You have moved around from location to location, living on the streets, living in the long-grass, and couch surfing' and 'You become addicted to heroin and amphetamines by the time you were in your 20s and you have been opiate dependant for over 20 years. You were continuing to lead that itinerant lifestyle at the time of this offending'. I find that such a lifestyle would not have been conducive to forming strong links with the community and that should Mr SCHMIDT be released into the community, he is at risk of reverting to this itinerant lifestyle.

28.     I note that Mr SCHMIDT has stated that he feels partly indigenous, in that he was partly raised among indigenous Australians, still has extensive social contact with indigenous people, and has undertaken some formal education in indigenous culture and issues. While I accept his view as a statement of his subjective feeling, and that the local indigenous community has accepted him as a member for many years, the information available to me does not indicate that Mr SCHMIDT is in fact of indigenous genetic makeup to any extent or is officially recognised as having such heritage.

29.     Mr SCHMIDT has not listed any employment in his Personal Circumstances Form and the itinerant lifestyle he has led, in addition to his repeated periods of incarceration, would not have been conducive to maintaining steady employment, in my view.

12    The Minster then then turns to the impediments that Mr Schmidt would face if he is removed from Australia to the United States. He says:

32.     Mr SCHMIDT is 43 years old. He has disclosed having depression and drug dependencies in his past, however states he has now recovered. No other current medical or psychological conditions have been identified.

33.     Mr SCHMIDT states that he has no family or social ties in the United States of America. He will therefore be unsupported and this will increase the likelihood of drug use and criminal activity. I acknowledge that the absence of any personal support networks in the USA would make it harder for Mr SCHMIDT to establish himself there.

34.    I have taken into account that Mr SCHMIDT's immediate family and close social ties are in Australia and that he will face emotional hardship in being separated from them, in particular his partner and children. I accept that this separation would exacerbate the short term difficulties Mr SCHMIDT would face in resettling in the United States of America, though I note that judicial remarks from 2015 indicate that he has largely led an itinerant and unattached lifestyle in Australia anyway.

35.     I nevertheless consider that the United States of America's culture and society are broadly similar to Australia's and there would be no language barrier. Furthermore the United States has a government welfare system that offers a level of support broadly comparable to that available in Australia. I find that any practical hardship faced by Mr SCHMIDT in re-establishing himself in the United States of America would not be so great as to prevent him in maintaining basic living standards.

13    In considering the protection of the Australian community, the Minister notes that Mr Schmidt has a very substantial criminal record, with offences recorded regularly from 1989, when he was 14 years old. He appeared in Darwin Juvenile Court on 8 occasions up to 1991 and was convicted of multiple assaults, some of which were committed against police. As an adult offender from 1992 he appeared in Northern Territory courts frequently, with a large number of convictions for further assaults against police, domestic partners and others, as well as other types of offences. The Minister refers to several of the more serious offences, which include 2 counts of escape from custody in the period from 1996 – 1999; 3 drug related offences and 5 assault related charges from 2002 – 2010; an assault on the mother of Phoenix in 2010; the assault on the mother of Darnell, to which I have referred above; and, most recently, his convictions in March 2015 for aggravated assault, demand with menaces and deprive a person of personal liberty for which he was sentenced to imprisonment for 20 months, 20 months and 12 months respectively.

14    The Minister considers that Mr Schmidt’s history of offending is “very serious” and that whilst Mr Schmidt has made efforts to rehabilitate during his most recent period of incarceration, he has in the past made similar claims to rehabilitation and later re-offended. In the context of considering the positive effects of his strengthened relationships with family members, the Minister noted:

52.     I further note that while Mr SCHMIDT has emphasised the pro-social effect of his strengthened relationships with family members, his uncle's letter states that Mr SCHMIDT was living with them 'on and off' up to the time of his most recent incarceration, which indicates to me that he continued to lead an itinerant and unstable lifestyle.

15    The Minister concludes that he cannot have confidence in Mr Schmidt’s recent statements that he has been rehabilitated; that he has in the past breached bail, probation and community service orders; that he has committed multiple different types of crimes; and that despite conducting himself well in immigration detention, he was involved in several minor assaults and threats of assaults whilst in prison. Furthermore, the Minster notes that Mr Schmidt was previously issued notices of intention to consider cancelling his visa in March 2004, April 2005 and May 2005 and a formal counselling letter in November 2007 but has frequently reoffended since then.

16    The Minister concludes that he should not revoke the decision to cancel Mr Schmidt’s visa. He states:

69.     In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr SCHMIDT represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, his claims that he will suffer hardship and harm if returned to the United States of America, and the hardship Mr SCHMIDT, his family and social networks will endure in the event the original decision is not revoked.

3.    GROUND 1: NO EVIDENCE

3.1    The particulars

17    Ground 1 of the application is that the decision not to revoke the cancellation of Mr Schmidt’s visa is vitiated by jurisdictional error in that the Minister made findings for which there was no evidence. The particulars are as follows:

(a)     At AB 220 [34], the Assistant Minister, in the context of considering "the extent of impediments if removed", stated, after referring to the applicant's partner and children and the fact that separation "would exacerbate the short term difficulties he would face in resettling in the United States of America":

"Judicial remarks from 2015 indicate that he has largely led an itinerant and unattached lifestyle in Australia anyway".

While the word "itinerant" was used by the Court in the remarks referred to (in the context of the applicant's homelessness): see AB 98, there is no evidentiary foundation for any conclusion that the applicant has led an "unattached" lifestyle.

(b)     At AB 220 [35], the Assistant Minister, in the context of considering "the extent of impediments if removed", stated:

"[T]he United States has a government welfare system that offers a level of support broadly comparable to that in Australia. I find that any practical hardship faced by Mr Schmidt in re-establishing himself in the United States of America would not be so great as to prevent him in maintaining basic living standards".

There is no evidentiary foundation in the material that was before the decision maker for any such finding.

3.2    Ground 1(a) – “itinerant and unattached lifestyle”

18    In relation to particular (a), Mr Schmidt submits that the Minister has misunderstood the evidence relating to his lifestyle, which has led to the incorrect characterisation of it as “itinerant and unattached” when in fact the evidence was that during his life before incarceration he was neither. Accordingly, the Minister fell into jurisdictional error in making a finding unsupported by evidence.

19    In the course of considering the extent of the impediments that Mr Schmidt would face if he were to be removed to the United States, the Minister at [34] identifies that Mr Schmidt’s immediate family and close social ties are in Australia, and that he will face emotional hardship in being separated from them. The Minister goes on to say that he accepts that separation would exacerbate short term difficulties that Mr Schmidt would face in resettling in the United States but adds, as an ameliorating factor, “though I note that judicial remarks from 2015 indicate that he has largely led an itinerant and unattached lifestyle in Australia anyway”. Mr Schmidt submits that the reference to ‘judicial remarks’ is to the transcript of remarks made by Riley CJ in sentencing Mr Schmidt for the offences that he was found guilty of in 2015.

20    Mr Schmidt contends that it is clear from the context of those remarks that Riley CJ was making a reference to a period of homelessness that Mr Schmidt had experienced rather than making a general statement about his life. In this regard, he submits that the Minister’s reference to an unattached and itinerant lifestyle wrongly characterises Mr Schmidt as being both single and nomadic and that the use of the word “anyway” in [34] indicates that, in the view of the Minister, this characterisation militated against the difficulties that the applicant would face in resettling in the United States.

21    Mr Schmidt submits that there was no evidence to support that finding.

22    This aspect of ground 1 may be addressed on a factual level. In my view, the sentencing remarks of Riley CJ are not confined to a reference to a period of homelessness experienced by Mr Schmidt, but refer more generally to his lifestyle, which involved moving from location to location, living on the streets, living in the long-grass and couch surfing. In the Minister’s reasons at [34] and [52] (quoted above) he refers to his perception that Mr Schmidt had led a lifestyle that did not involve a great degree of attachment. Hence his observation at [52], drawn from a letter supplied by his uncle, that the fact that Mr Schmidt had lived with him “on and off” up to the time of his most recent incarceration indicated that he continued to live an “itinerant and unstable lifestyle”. These observations are consistent with the lifestyle observations made by Riley CJ and were reasonably open to the Minister on the basis of the evidence. I reject ground 1 based on particular (a).

3.3    Ground 1(b) – United States welfare system “broadly comparable”

3.3.1    The arguments

23    In the “no evidence” ground based on particular (b) Mr Schmidt contends that in considering the impediments that he would face if he is returned to the United States, the Minister wrongly concluded at [35] that the United States “has a government welfare system that offers a level of support broadly comparable to that available in Australia”. This, Mr Schmidt submits, was a finding critical to the Minister’s conclusion, because the material before the Minister made it clear that he has negligible prospects of supporting himself financially in the United States, where he has no support, and in light of his history of substance abuse, depression and his limited work history. Mr Schmidt submits that circumstances where there is no evidence in support of a critical step in the Minister’s ultimate conclusion may constitute a jurisdictional error, citing SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402 (SFGB).

24    The Minister accepts that there was no evidence before him to support the comparison of the welfare systems in Australia and the United States, but defends the decision on three bases. First, he submits that the Minister’s powers and functions are different to that of a Court, and he is entitled to inform himself by reference to matters of his own general knowledge, citing (in the context of the Administrative Appeals Tribunal) Secretary, Department of Family and Community Services v Verney [2000] FCA 570; (2000) 60 ALD 737 at [39] and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [180] (Hayne J) (Jia Legeng). Secondly, he contends that given the cultural, historical and political similarities between the United States and Australia it was in any event open to the Minister to make that finding and no specific evidence was required, citing McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 (McLachlan) at [35] – [37] and Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 (Uelese) at [69]. Thirdly, he contends that the finding was not a “critical step” in the Minister’s decision and nor was the availability of government welfare services the issue upon which the Minister’s decision turned. The finding was one of numerous findings made in considering the extent of any impediments that Mr Schmidt might face on return to the United States and accordingly any error found would not go to jurisdiction, citing Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; (2016) 242 FCR 65 at [39] – [41] (Buchwald). The Minister submits that Mr Schmidt’s reliance on SFGB is misplaced, and the correctness of SFGB has been doubted, citing Australian Postal Corporation v D’Rozario [2014] FCAFC 89; (2014) 222 FCR 303 (D’Rozario) at [67], [108].

3.3.2    Consideration

25    In [35], the Minister said:

I nevertheless consider that the United States of America’s culture and society are broadly similar to Australia’s and there would be no language barrier. Furthermore the United States has a government welfare system that offers a level of support broadly comparable to that available in Australia. I find that any practical hardship faced by Mr Schmidt in re-establishing himself in the United States of America would not be so great as to prevent him in maintaining basic living standards.

(emphasis added)

26    The Minister’s reference to a “government welfare system” encompasses at least matters concerning social security, such as unemployment benefits, and the availability of free or assisted health care. These are two matters that are of significance to the consideration of the position of Mr Schmidt. First, the preceding observations at [29] and in the final sentence of [34] indicate a recognition on the part of the Minister that Mr Schmidt is unlikely to be in a position to secure employment in the event that he returns to the United States. Secondly, at [32] and [33] the Minister observes that Mr Schmidt in the past has suffered from depression and that although no evidence indicates that he does so at present, in the absence of family or social ties in the United States, the likelihood that he will revert to drug use will increase. The availability of employment and medical welfare benefits were quite clearly important to the consideration of the impediments that would face Mr Schmidt upon his removal to the United States. In a statement that was before the Minister, Mr Schmidt refers to his own depression in in the period leading up to his offences. In a letter to which the Minister refers in his reasons (at [52]) Mr Schmidt’s uncle expresses fear that should Mr Schmidt be forced to return to the United States and thereby lose the assistance of his family support network, Mr Schmidt’s life “would be cut short drastically” because “survival on the street would be near impossible, probably leading to criminal activity to survive and eventually prison or worse”. A letter from his former partner, Ms Ulrich, refers to sending Mr Schmidt to the United States as a “death sentence”. I have referred at paragraph [26] above to the Minister’s findings in relation to his likelihood of securing employment.

27    In these circumstances, the question of the need for Mr Schmidt to rely on welfare as an impediment to his return to the United States was a central issue under consideration. In my view, the finding that there was comparable welfare in the United States of America was a critical step to the Minister’s ultimate conclusion that any practical hardship faced by Mr Schmidt would not be so great as to prevent him maintaining basic living standards and the decision not to revoke the decision to cancel Mr Schmidt’s visa.

28    There is no dispute that there was no evidence before the Minister to support a general conclusion that the welfare system of the United States and of Australia are broadly similar or, more particularly, that the social security and public healthcare arrangements in the two countries are broadly similar. Were it to be a question of judicial notice under s 144(1) of the Evidence Act 1995 (Cth) (Evidence Act), one might say that this is an unsafe conclusion to reach. Indeed it might be said that the common knowledge in Australia, or alternatively, the knowledge of the ordinary wide-awake person, used by one who is trained to express it in terms of precision (Brisbane City Council v Attorney-General (Qld) [1979] AC 411 at 425 (Privy Council)), indicates that the welfare systems of the United States and Australia are not broadly comparable. However, the standard required by s 144(1) of the Evidence Act is not applicable to an administrative decision such as the present.

29    The relevant test for jurisdictional error arising by reason of an absence of evidence is set out in SFGB the Full Court (Mansfield, Selway Bennett JJ) at [19]:

…If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357… 

30    This passage has been endorsed in a number decisions of in this Court; see Hands v Minister for Immigration and Border Protection [2018] FCA 662 where Griffiths J said at [37]:

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

See also Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277 (Marshall, North, Flick JJ) at [23]; ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 at [34] (Charlesworth J), SZSQL v Minister for Immigration and Border Protection [2015] FCA 294 at [29] (Gleeson J); and DRP17 v Minister for Immigration and Border Protection [2018] FCA 523 at [16]-[17] (Perram J).

31    The Minister points to reservations as to the correctness of SFGB expressed by Jessup and Bromberg JJ in D’Rozario, and contends that the aspect of the Minister’s decision in respect of which there was no evidence did not go to a jurisdictional fact. In those circumstances he submits that I ought not follow SFGB. In this regard the Minister places particular emphasis on the reasoning of Bromberg J in Buchwald where his Honour said:

[33]     The reasons for decision of Kenny J in SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232 at [38] disclose what appear to be two approaches in the authorities to the “no evidence” ground. A number (there cited) suggest that jurisdictional error lies where the decision-maker “makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding.” One of the cases her Honour cited, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19], has been many times relied upon for that proposition. On the other hand, a number of authorities (again, set out in SZNKV at [38]) stand broadly for the proposition that, for jurisdictional error to lie, the fact in support of which there is no evidence must be a jurisdictional fact. However, Kenny J expressly did not determine “whether these two approaches co-exist” nor, if a choice had to be made between then, which was the preferred approach.

However, whilst concluding that the second of the approaches is to be preferred, his Honour in Buchwald proceeded to find that the ground relied upon before him was made out on both alternatives. In D’Rozario Jessup and Bromberg JJ (at [67] and [117]) proceeded on the basis that SFGB was correct. SFGB has now been followed by single judges and the Full Court, in my view it should be followed.

32    In my view the finding as to the comparability of welfare in the United States was a critical step leading to the decision of the Minister. There was nothing before the Minister which said anything about the welfare system of the United States that might form the basis for the conclusion that the system there was broadly comparable with the welfare system in Australia. Accordingly, there was no evidence for the Minister to find that the two systems were comparable.

33    In this context I do not consider that the Minister’s reliance on the reasoning in Jia Legeng is apposite. There is no suggestion in the present case that the Minister was relying on built up “expertise” in matters such as country information of the type to which Hayne J was referring at [180] or that he had considered or informed himself of country information concerning the welfare system in the United States available to him at the time of his decision.

34    Nor do I consider the present case to be comparable to the situation faced by Robertson J in Uelese where (in that case) the applicant was found to be young and in good health (at [24]) and the case put to the Tribunal did not include a submission that the non-availability of welfare benefits constituted an impediment upon removal from Australia (at [69]). In those quite different circumstances, a broad statement by the Minister as to the availability of welfare benefits in New Zealand was regarded as unexceptional. The decision in McLachlan was an application for an extension of time to file an application for review of the Minister’s decision. Both cases concerned quite different circumstances not least because the system under consideration was that of New Zealand.

4.    GROUND 2: NO LOGICAL CONNECTION

4.1    Ground 2(a)

35    Ground 2(a) is similar to ground 1(a) insofar as it challenges the Minister’s characterisation of the lifestyle of Mr Schmidt as “unattached”. In section 3.2 above, I have indicated that I respectfully disagree with Mr Schmidt’s interpretation of the Minister’s reasons in this regard. In particular, I note that the Minister does not find that Mr Schmidt’s lifestyle has been completely unattached and itinerant, but that it has been ‘largely’ so. Furthermore, the Minister plainly had regard to Mr Schmidt’s familial and social relationships – see at [21] – [30] of the Minister’s decision. In these circumstances it was not irrational for the Minister to characterise Mr Schmidt’s lifestyle in the manner that he did.

4.2    Ground 2(b)

36    In ground 2(b) Mr Schmidt again refers to the finding that the United States has a government welfare system that offers a level of support broadly comparable to that in Australia. Mr Schmidt contends that the conclusion at [35], that the hardship that he would face in re-establishing himself in the United States “would not be so great as to prevent him in maintaining basic living standards”, was one that no reasonable decision maker could reach on the material before him, in light of the wealth of information about the challenges that would face Mr Schmidt to find employment. He submits that it is clear that the Minister was only able to reach that conclusion based on a finding for which there was no evidence, namely that the United States welfare system was broadly similar to that found in Australia.

37    The Minister submits that he was entitled to find and rely on his view that in the United States the government welfare system offered a broadly comparable level of support. He submits that in his reasons, he also referred at [35] to cultural and societal similarities and the lack of language barrier. He submits that his overall conclusion was a finding that a reasonable decision maker could have reached, even if the Court might itself have reached a different conclusion, citing SZMDS at [131], [135]; and Rawson Finance Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 at [84] per Jagot J (Nicholas J agreeing).

38    In the latter case, her Honour said at [84]:

The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction which is limited to questions of law. When courts refer to there being “no probative” evidence to support a finding or a finding not being “reasonably open” or “open” on the evidence (as in Australian Broadcasting Tribunal v Bond at 359-360) or it being necessary that a finding be based on “some probative material or logical grounds” and that a finding not be “completely arbitrary” (as in Australian Broadcasting Tribunal v Bond at 366 and 367, Kostas v HIA Insurance Services Pty Ltd at [16], Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [145] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; [2004] HCA 32 at [38]) the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula “some probative material or logical grounds” does not convert questions of fact into questions of law.

39    The statement in [35] of the Minister’s reasons that “any practical hardship faced by [Mr Schmidt] in re-establishing himself in the United States of America would not be so great as to prevent him in maintaining basic living standards” was plainly predicated on the “broadly comparable” finding to which I have referred in relation to ground 1(b) of the present application. There was no probative evidence of fact and no logical grounds to support that finding, which itself relied on facts that were not before the Minister. Accordingly, in my view the decision of the Minister lacked an evident and intelligible justification; see also Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].

4.3    Ground 2(c)

40    In ground 2(c) Mr Schmidt contends that the decision of the Minister is vitiated by jurisdictional error on the basis that the decision is illogical or irrational in that there was no logical connection between the evidence and the inferences and conclusions drawn because:

In the context of considerable evidence about the applicant’s links with Indigenous communities and his identification as Aboriginal (see eg AB 163), it was illogical or irrational of the decision maker to counter this by referring to the absence of “indigenous genetic makeup” or his not being “officially recognised as having [Indigenous] heritage.

41    The passage upon which Mr Schmidt places reliance is [28] of the Minister’s reasons, where he notes that Mr Schmidt has stated that he feels partly indigenous, in that he was partly raised among indigenous Australians, that he still has extensive social contact with indigenous people and that he has undertaken some formal education in indigenous culture and issues. The Minister then accepts this as a statement of Mr Schmidt’s subjective feelings, and that the local indigenous community has accepted him as a member. It is then that he observes that Mr Schmidt is not “of indigenous genetic makeup to any extent or is officially recognised as having such heritage”.

42    Mr Schmidt submits that it was illogical for the Minister to negate the subjective and community ties that he has with the indigenous community because of the absence of an indigenous genetic makeup or officially recognised indigenous heritage.

43    The difficulty with this ground of review is that the impugned statement of the Minister is not shown to be factually wrong. Nor does the observation of the Minister that Mr Schmidt is not of indigenous genetic makeup or heritage “negate” the other findings of a connection between Mr Schmidt and the indigenous community. I agree with the Minister’s submission that nowhere in his reasons does the Minister state, or suggest, that the impugned statement diminishes his reliance on the earlier observations, which accept Mr Schmidt’s evidence. Accordingly, this ground of review is not established.

5.    GROUND 3: PROPER, GENUINE AND REALISTIC CONSIDERATION

44    In light of my conclusions in relation to grounds 1 and 2, ground 3 can be addressed in short form. The reasoning of the Minister does, in my view, reflect the engagement by the Minister in an active intellectual consideration of the issue, as required by the authorities – see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [35], [47] (Griffiths, White and Bromwich JJ); and Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 (Flick J).

45    In particular 3(a) Mr Schmidt contends that despite providing a detailed history of his connections with indigenous people and culture, including having been brought up by an Aboriginal foster family, no finding was made on this issue, other than a finding that he has no indigenous genetic makeup and is not officially recognised as having indigenous heritage. Mr Schmidt submits that such a finding, had it been made, goes to the centrality of his ties to the community. The relevant substantive finding of the Minister, accepting the evidence of Mr Schmidt, is that he identifies with the indigenous community and subjectively identifies as an indigenous Australian (see [28]). As a consequence, I do not accept Mr Schmidt’s submission that no finding was made.

46    The complaint in ground 3(b) concerns Mr Schmidt’s challenge to the Minister’s characterisation of his lifestyle as “itinerant”. That complaint fails at the threshold for the reasons previously identified, namely, that it was open to the Minister to find that Mr Schmidt had an itinerant lifestyle. Furthermore, it is apparent from the Minister’s reasons that he did not overlook or negate Mr Schmidt’s connections with his family or friends or to Darwin. However, the Minister permissibly pointed to other factors that were suggestive of weak ties to the community.

47    The complaint in ground 3(c) is that there was a failure on the part of the Minister to make findings as to ‘potentially lethal’ consequences of Mr Schmidt being returned to the United States. However, the Minister accepted as a factor at [33] that it would be harder for Mr Schmidt to return to the United States because he does not have familial and social ties to that country and statements made by Mr Schmidt and Ms Ulrich as to the consequences of a return to the United States. Whilst the precise language of the evidence adduced in relation to the hardships that he would face was not repeated in the reasons, in my view Mr Schmidt has not established that the Minister has failed to give active consideration to these issues. Plainly, he had regard to the personal support networks available to Mr Schmidt in reaching the conclusion expressed at [33].

6.    DISPOSITION

48    In light of my reasons I make the following orders:

(1)    The name of the Respondent be changed to the Minister for Home Affairs.

(2)    The Applicant be granted an extension of time to file an application for review of the decision made by the Assistant Minister for Immigration and Border Protection on 31 August 2017 refusing to exercise the power under s 501CA(4) of the Migration Act 1958 (Cth) (Act) to revoke an earlier decision made pursuant to s 501(3A) of the Act to cancel the Applicant’s Class BF Transitional (Permanent) Visa (Visa).

(3)    The Applicant has leave to rely on his Originating Application dated 1 May 2018.

(4)    A writ of certiorari be issued quashing the decision by the Assistant Minister for Immigration and Border Protection on 31 August 2017 refusing to exercise the power under s 501CA(4) of the Act to revoke an earlier decision made pursuant to s 501(3A) of the Act to cancel the Applicant’s Visa.

(5)    A writ of mandamus be issued requiring the Respondent to re-determine, according to law, the Applicant’s application that the Respondent revoke the cancellation of his Visa.

(6)    The Respondent pay the Applicant’s costs of the proceeding as agreed or taxed.

Associate:

Dated:    7 August 2018