FEDERAL COURT OF AUSTRALIA

Smith v Minister for Home Affairs [2018] FCA 1594

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application, as further amended, for judicial review of the decision of the Minister made on 24 May 2018 is dismissed.

2.    The applicant is to pay the respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1    By his amended originating application, the applicant seeks to set aside the Minister’s decision of 24 May 2018 made under s 501CA of the Migration Act 1958 (Cth) not to revoke the original decision of 30 January 2017 to cancel the applicant’s Class BF transitional (permanent) visa.

2    The relevant provisions of the Migration Act were as follows:

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

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

(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.

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

3    The terms of the decision, made by the Minister personally, were:

Mr SMITH has made representations about revocation of the original decision in accordance with the invitation and I am not satisfied that Mr SMITH passes the character test (as defined by s501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, the power in s501CA(4) of the Act to revoke the original decision is not enlivened and Mr SMITH’s Class BF Transitional (permanent) visa remains cancelled. My reasons for this decision are set out in the attached Statement of Reasons.

4    The grounds of the application turn on what representations were made to the Minister and, in the main, whether in the circumstances he was under a legal duty to make further inquiries.

5    The Minister’s reasons were relevantly as follows:

6.    Mr SMITH’s National Police Certificate dated 13 October 2016 indicates that on 1 July 2016 he was convicted in the Nowra District Court of New South Wales (NSW) of offences including Supply prohibited drugs on an ongoing basis, for which he was sentenced to 45 months imprisonment.

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

8.    In the representations/documents that Mr SMITH submitted, he does not dispute the information in the National Police Certificate dated 13 October 2016 regarding his criminal convictions and sentences, or that he does not pass the character test.

…

10.    As I am not satisfied that Mr SMITH passes the character test, I have considered, in light of Mr SMITH’s representations, whether I am satisfied that there is another reason why the original mandatory visa cancellation decision (original decision) should be revoked.

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

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

-    All of his family live in Australia including his three minor and two adult children, who are Australian citizens.

-    Despite not normally living with his children since his relationship with their mother ended, he has been closely involved in their lives when at liberty and it is important to them to have continued direct access to them (sic), in particular his 12 year old son Corey, who suffers from ADHD and other psychological disorders and who is not doing well in his father’s absence.

-     He came to Australia in 1967 and has lived here since, so considers himself Australian.

-    His eldest brother has cancer and is not expected to live more than 12 months. Mr SMITH would like to take care of him in the final stages of his life.

-    His parents are elderly and Mr SMITH would like to be here to help with their daily needs too.

-    Mr SMITH would be lost and scared if sent back to the UK, and knows he would be depressed because he would have no family to turn to.

-    He will have work waiting for him if he is released with his brother’s tree service business.

-    He has undertaken some rehabilitative training in prison and will be doing the Smart program and attending Narcotics Anonymous meetings in order to stay drug free.

Best interests of minor children

13.     In considering whether or not I am satisfied that there is another reason why the original decision should be revoked, I acted in conformity with Article 3 of the United Nations Convention on the Rights of the Child, and treated the best interests of any affected children under 18 in Australia as a primary consideration and have concluded that it is in the best interests of Mr SMITH’s children for the original decision to be revoked.

14.    Mr SMITH has three children under 18 years of age. They are Krystal-Anne Smith (born 10 June 2000, aged 17), Jessica Elizabeth Smith (born 1 September 2002, aged 15) and Corey Robert Smith (born 26 October 2005, aged 12). They reside with their mother, Mr SMITH’s former de facto partner Ms Keily Eschbach, in Warilla, NSW.

15.    I note that Mr SMITH states he loves his children with all his heart, that he was a full time father for Krystal-Anne for the first 10 years of her life and over the last six years since the separation he has still had frequent contact with all his minor children, as he lived nearby and saw them every weekend and many times during the week including when dropping them off at school, at sporting events and when they undertook leisure activities together. I have considered his submission that his removal from Australia would be devastating and stressful for the children because he has a very close relationship with them.

16.    I note Ms Keily Eschbach, the mother of the children, writes that the children are close to their father, that he plays a big part in their lives, has always been there for them when they needed him, has provided for them and that they often say how much they miss him and wish he was around. She states further that if Mr SMITH were deported the children would be devastated and it would a have a significant impact on their lives; I have taken this into consideration.

17.    In respect of Krystal-Anne I give limited weight to her best interests as a minor, in view of the fact that she will cease to be a minor in several months.

18.    I note that in his letter Jason Long [the child protection caseworker from NSW Family and Community Services for Mr Smith’s youngest son, Corey] indicates that Jessica Smith has an intellectual disability, although he does not specify the type or severity of the disability nor whether she requires special support because of it. Neither Mr SMITH, Ms Eschbach nor anyone else who has submitted letters in support of Mr SMITH have mentioned that Jessica has an intellectual ability (sic). In light of the lack of further information about this matter, I have not given it extra weight in assessing Jessica’s best interests and whether the original decision should be revoked.

19.    I note the advice from Ms Eschbach that Corey has ADHD and ‘oppositional defiant disorder’ and he does not cope very well with Mr SMITH’s absence. I have also considered a letter from Jason Long of Family and Community Services in Shellharbour, in which he advised that Corey has displayed behavioural issues since Mr SMITH’s incarceration, has come under police notice for his criminal behaviour which has led to incarceration in a juvenile justice centre for violent offences and that there are significant concerns that Corey will hurt somebody if he continues this behaviour. I note that Corey has stated he wants to live with his Dad and that Mr SMITH has agreed to have Corey live with him if released into the community, as he has a key part in the stabilisation of Corey’s life. I accept that it is particularly important for Corey to be reunited with Mr SMITH if his current psychological and behavioural issues are to be resolved.

20.    Overall, I find that it is in the best interests of Krystal-Anne, Jessica and Corey that I revoke the original decision to cancel Mr SMITH’s visa so that they may maintain and continue to develop their relationships with him.

…

Strength, nature and duration of ties

…

24.    I accept that Mr SMITH has family and social ties to Australia. They include his elderly parents, three brothers and two adult children, two uncles and aunts, four nieces, four nephews, and six cousins residing in Australia. I note Mr SMITH advised he had twice weekly phone calls with members of his family including his parents, children and adult daughter while in prison and I have taken this into account. Mr SMITH states his family would be devastated if he were removed from Australia and I accept that they would suffer emotional hardship.

25.    Mr SMITH has submitted letters of support from family and friends with his revocation request and I note the general sentiment expressed that while Mr SMITH has made mistakes in the past, he is a good family man and friend and supports them when they are in need and I have taken this into account.

26.    I note the Reverend Scott Kelly, Chaplain at St Helier’s (sic) Correctional Centre, advises that Mr SMITH’s children and his parents are devastated by the thought of him being deported and that his young children in particular are stressed by the suggestion that they may never see their father again.

…

29.    Casey Smith, Mr SMITH’s adult daughter, writes that his deportation will affect her and her siblings. She states that when she was seven years old she was hit by a tip truck and this caused ongoing medical issues for her, that Mr SMITH has always been a great support for her and she has found life difficult since his most recent arrest. Other representations confirm Casey’s need for some support as she grows older and the permanent effects of her injuries become more pronounced. She states he is an integral part of their family and she and her siblings rely on him for support and without him they would be lost. I note that she has offered for Mr SMITH to stay with her upon his release into the community as she has her own house as she wants to help him get his life back on track.

30.    I have considered the effect of non-revocation upon Mr SMITH’s immediate family in Australia and accept that those persons would experience emotional and practical hardship. I find that Mr SMITH has been making a positive contribution to the community through his employment and volunteering activities, albeit less so in recent years when he has not worked regularly and has been incarcerated for some time, and I have taken this into account.

…

Extent of impediments if removed

…

33.    Mr SMITH states he does not have any family, help or accommodation in the United Kingdom. He would be devastated, scared, and insecure and depressed and a world away from his family. Australia is all he knows.

34.    I accept that Mr SMITH may experience significant difficulties re-establishing himself in the United Kingdom, given he has not lived there since childhood, and would have little or no personal support network there, and I have taken this into consideration. I also consider that his removal from his family in Australia has the potential to cause him to suffer some social isolation and emotional hardship. However the United Kingdom is culturally and linguistically similar to Australia and has comparable standards of health care, education, social welfare and housing support. As a citizen of the United Kingdom, Mr SMITH will have access to these services equal to that of other citizens of that country. Whilst I acknowledge Mr SMITH may experience short term hardship, I find that over time he would be capable of settling in the United Kingdom without undue difficulty.

…

Protecting the Australian Community

35.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the consideration of the protection of the Australian community, noting in particular Mr SMITH’s claim he does not pose an unacceptable risk of reoffending. I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens.

Criminal conduct

36.    In considering the nature and seriousness of Mr SMITH’s criminal offending, I take the view that sexual offences are very serious offences, especially if the victims are minors. I also consider violent offending and domestic violence in particular to be very serious. Finally, I consider that offences involving the supply and/or distribution of illicit drugs should be viewed seriously, given the far reaching consequences illicit drugs can have on the broader community and more specifically those who use and are addicted to such, the effect it has on their lives as well as the impact it has on the lives of their families and communities.

37.    Mr SMITH has been convicted of offences falling within each of these categories, over the course of a long criminal history in Australia since 1982. Having begun to offend when he was a juvenile, he has continued to offend regularly throughout his adult life, with over 30 court appearances to 2016, though I acknowledge there were some breaks (other than those resulting at least partly from periods of imprisonment) between 1992 and 1998, and between 2012 and 2016. The most notable offending in his record consists of offences of violence, including multiple instances of offences relating to domestic violence, and repeated drug offences, including his most recent offences. He also has one set of convictions in 1998 for child sex offences, in addition to some dishonesty and driving offences. He has received a considerable number of prison sentences, of up to 45 months.

38.    On 21 August 1998 in the Nowra District Court of NSW Mr SMITH was convicted of three counts of Commit Act of indecent assault child under 16 Years and was ordered to serve two years of periodic detention and be subject to supervision under a recognisance for three years. Sentencing remarks for these convictions are not held, however in a telephone discussion with a departmental officer on 7 August 2007 Mr SMITH stated that the offence was committed against the 12 year old daughter of a previous de facto partner. While the sentences imposed for these matters suggest that the court did not rate them toward the upper end of the range for such offending information, they were clearly sexual offences against a minor and therefore very serious, and the information provided by Mr SMITH himself indicates that the victim was a child in his care, which in my view adds to the weight of the offending. I acknowledge that he has no other history of such offending.

39.    Most recently, on 1 July 2016 Mr SMITH was convicted in the Nowra District Court of New South Wales (NSW) of Supply prohibited drugs on an ongoing basis and sentenced to 45 months imprisonment, with a non-parole period of 24 months. On the same day and in the same court Mr SMITH was also convicted of another drug supply offence and sentenced to 16 months imprisonment. Three further drug supply offences were taken into consideration when sentencing.

…

41.    Mr SMITH has been convicted of multiple offences of a violent nature, including some in a domestic context. These include three counts of Assault Occasioning Actual Bodily Harm in 1990, for which he received a recognisance for three years and community service orders; one count of Assault in 1991 and two further counts of Assault in 1992, for which he received a fixed term of two months imprisonment and community services order, respectively. In March 2001 he was convicted of Common assault, Assault occasion actual bodily harm and two counts of Contravene apprehended domestic violence order and sentenced to nine months imprisonment on all counts. In January 2006 he was again convicted of Assault occasion actual bodily harm and sentenced to two years imprisonment, with a non-parole period of 18 months. In February 2010 he was convicted of Common Assault (dv) and Contravene prohibition/restriction in avo (domestic) and sentenced to nine months imprisonment, suspended on entering a good behaviour bond. In October 2012 he received a further conviction for Assault occasion actual bodily harm and was given a three year bond with supervision, and ordered to undergo drug and anger management counselling. Sentencing remarks are not held for these convictions.

42.    It appears that all of Mr SMITH’s domestic violence related offending was committed against his former partner, Ms Keily Ann Eschbach. Sentencing remarks are held for one of these matters. On 29 September 2003 in the Nowra Local Court Mr SMITH was convicted of Contravene apprehended domestic violence and sentenced to two years imprisonment with a non-parole period of 12 months and Common assault, for which he was sentenced to 12 months imprisonment.

43.    The Court transcript indicates that on 10 September 2003, during an argument with Ms Eschbach, the mother of his children, Mr SMITH slapped Ms Eschbach on the back of the head, and picked up an axe lying nearby, raised it and said ‘I may as well use this’, although he did not do so. Mr SMITH was on conditional liberty at the time of this offending, having been given a two year suspended prison sentence on 19 August 2003 in the Nowra Local Court for two counts of Contravene apprehended domestic violence and two counts of Common assault, both also committed against Ms Eschbach.

44.    I find that the sentences Mr SMITH received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the courts viewed Mr SMITH’s offending as serious when imposing the numerous custodial sentences he has received, of up to 45 months duration.

45.    I have considered Mr SMITH’s entire criminal history in Australia and I find that it must be regarded as very serious in nature, taking into account the particular seriousness of numerous violent offences particularly in a domestic context, his sexual offences perpetrated against a child and his drug related offending.

Risk to the Australian community

…

54.    I am not convinced that Mr SMITH has been able to address his full rehabilitation needs yet, noting that he has not had the opportunity to demonstrate his rehabilitation by a prolonged period in the general community without further offending, and that the offer of employment in his brother’s business is not unequivocal.

55.    Mr SMITH was previously considered under section 501 of the Migration Act 1958 on character grounds and was issued a warning by a delegate of the Minister on 26 November 2007. Mr SMITH reoffended after this warning, which gives me pause in accepting his current assurances that he will not reoffend if returned to the community. I also note the Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 30 January 2017 indicates that Mr SMITH incurred several disciplinary incidents during several prison terms, with the most recent being for Steal in December 2016.

56.    An Immigration Risk Assessment by St Heliers Correctional Centre dated 17 September 2016 indicates Mr SMITH is not permitted prison visits with children under 18, even if this is not barred by an AVO, because of his indecent assault convictions for offences against a minor in 1998. I note that he remains subject to restrictions resulting from his registration as a child sex offender, though I note further that the available information indicates that his access to his own children does not seem to have been affected.

57.    The same prison document also indicates that he has had good work reports in prison and did receive regular visits from family, including his daughters, and friends while he was at John Morony and South Coast Correctional Centres from June 2015 to June 2016 and I have taken this information into account.

58.    I have considered Mr SMITH’s numerous convictions for breaches of judicial orders and non-custodial dispositions and his continuing to offend despite his previous warning by a delegate of the Minister under Section 501 of the Migration Act 1958. I find that Mr SMITH’s prior conduct displays a disregard for judicial orders and leads me to have some doubt that he will not reoffend if returned to the community.

59.    I cannot rule out the likelihood of Mr SMITH reoffending in future, particularly if he again succumbs to drugs or excessive use of alcohol. I find that there is an ongoing likelihood that Mr SMITH will reoffend, albeit somewhat reduced by his recent training and commitment to his family. Should he offend in a similar manner, it could result (sic) physical and psychological harm to a member or members of the Australian community.

CONCLUSION

…

63.    In considering, in light of Mr SMITH’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr SMITH’s three minor children. I found that their best interests would be served by the revocation of the original decision.

64.    In addition, I have considered the positive contribution to the Australian community Mr SMITH made whilst in past employment and through his volunteer activities, albeit limited in recent years, and the consequences of non-revocation of the original decision for his other family members.

65.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr SMITH, some of which are of a violent and sexual nature, and one instance involved a vulnerable member of the community, that being a minor.

66.    Further, I find that the Australian community could be exposed to significant harm should Mr SMITH reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr SMITH.

67.    I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr SMITH, than I otherwise would, because he has lived in Australia for most of their (sic) life, or from a very young age.

68.    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 SMITH 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 s/he (sic) will suffer hardship and harm if returned to the United Kingdom and familial ties to Australia, and the hardship Mr SMITH, his family and social networks will endure in the event the original decision is not revoked.

69.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Mr SMITH’s visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr SMITH’s Class BF transitional (permanent) visa remains cancelled.

6    The applicant’s relevant submissions to the Department or Minister were as follows:

(i)    in response to the invitation made by letter dated 30 January 2017 to make representations to the Minister about revoking the decision to cancel the applicant’s visa, representations said to be received on 22 February 2017;

(ii)    in further response, a request for revocation form dated 8 February 2017 apparently emailed on 23 February 2017. The personal circumstances form and accompanying documents are at CB 89-143;

(iii)    a facsimile sent to the Department on 9 August 2017, containing a letter from Mr Jason Long, Caseworker at NSW Family & Community Services (FACS) dated 31 July 2017; and

(iv)    in response to a further information letter from the Department sent by email dated 4 September 2017, a second further information letter from the Department sent by email dated 4 October 2017 and a third further information letter from the Department dated 18 October 2017, the applicant responded by three letters sent on or before 2 November 2017 and an email sent on his behalf on 3 November 2017. Of these, the response first in time appears to have been received by the Department on 19 October 2017.

7    The representation made by the applicant as to his minor children, at CB 101-107, did not refer to the needs of Corey and Jessica as now relied on. The representation referred generally to the stress on their young lives and the pressure it would put on their lives. There was some further but general information about the applicant’s relationship with his minor children at CB 117-118. At CB 123, there was a representation by the mother of the applicant’s minor children about the son Corey having ADHD, oppositional defiant disorder and not coping with the applicant’s absence. The mother also said that Corey has seen a psychologist over a period of time and a psychiatrist. There was also reference at CB 125 to Corey’s anger and significant behaviour problems resulting from his separation from the applicant.

8    As considered by the Minister at [18]-[19] of his reasons, Mr Long stated in the letter dated 31 July 2017 that he is the child protection caseworker for Corey. He said that Corey had been displaying significant behavioural issues whilst the applicant was incarcerated and had come under police notice for his criminal behaviour which had led to incarceration in juvenile justice centres for violent offences. Mr Long also referred to concerns that Corey would severely hurt somebody in the home or be hurt seriously by another party in the home if he continues to threaten and use weapons in the home. The letter stated that the applicant “is currently a key part in the stabilisation of Corey’s life.” There was also reference to Jessica as follows: “Jessica Smith 14 (Intellectual disability)…”. Because the applicant placed central weight on the terms of this letter in the judicial review proceedings, I reproduce it, omitting formal parts:

To whom it may concern,

I am the Child protection caseworker for Corey SMITH at Shellharbour Family and Community Services.

Whilst incarcerated I have had phone contact with Robert Smith who is the natural father of Krystal Smith 16, Jessica Smith 14 (Intellectual disability) and Corey Smith 12.

Corey has been displaying significant behavioural issues whilst Robert has been incarcerated and has come under Police notice for his criminal behaviour which has lead (sic) to incarceration in Juvenile Justice Centres for violent offences.

Corey has stated that once released all he wants is to live with his dad (Robert) but with the pending Visa issues it is unclear if this is a possibility and what the ramifications will be for Corey upon hearing this.

Community Services and Juvenile Justice have significant concerns that Corey will severely hurt somebody in the home or be hurt seriously by another party in the home if he continues to threaten and use weapons in the home.

As part of this plan a joint workers meeting with FaCS, school and Juvenile Justice was held with family present in May 2017, Robert (via phone) agreed that he would take Corey to live with him in (sic) once released and Corey would be enrolled in school fulltime. Corey agreed with this also as he is currently attending 1 hour a day but was not attending until school was made a bail condition.

FaCS encourage you to take this into account when deciding the visa status of Robert Smith as he is currently a key part in the stabilisation of Corey’s life.

Please contact the caseworker Jason Long or Child Protection manager Catherine Drobiszewski on xxxx if you require any further information.

9    The representation made by the applicant on 2 November 2017 said that Corey had been having difficulty with his living standards and referred back to the letter from Mr Long “telling you of the situation Corey is going through…”.

The grounds of the application

10    The grounds of the application for judicial review, as amended in the course of the hearing, were as follows:

Failure to take into account relevant consideration grounds

1.    The Respondent fell into jurisdictional error by failing to take into account a relevant consideration namely that the Applicant’s 12 year old son Corey could only live with him (as the only alternative to State care or incarceration) because he could not live at home with his mother due to an AVO and/or his past verbal and physical abuse of his mother which had resulted in his arrest and incarceration in the Reiby Juvenile Detention Centre.

2.    The Respondent fell into jurisdictional error by failing to take into account a relevant consideration namely the interests of the Australian community, in ensuring that Corey was provided with accommodation and care by the Applicant instead of being placed in State care or incarceration.

3.    The Respondent fell into jurisdictional error by failing to take into account a relevant consideration namely the interests of his mother and minor siblings, in ensuring that Corey was provided with accommodation and care by the Applicant, rather than resuming living with his mother at some future time in his minority (if this became a legal option after expiry of the AVO), given that Corey already has a history of criminal behaviour and in particular of violence to his mother and minor siblings, was subject to an AVO precluding him from living with his mother.

3A.    The Respondent erred by failing to infer that Corey could not continue to safely live with his mother without unacceptable danger to her and her other children from the letter at CB 146, this being the only inference on that matter available from the letter and not displaced by other material before him.

3B.    The Respondent erred by failing to infer that Corey would be required to go into State care or incarceration should the Applicant be deported, from the letter at CB 146, this being the only inference on that matter available from the letter and not displaced by other material before him.

3C.    As a result of failing to make either or both of the inferences in 3A or 3B above, the Respondent failed to take into account those facts pleaded in 3A and 3B which should have been inferred in either case, and as a result failed to take into a (sic) account (by failing to make either, or both, of these inferences) these matters as mandatory relevant consideration (sic) or as material matters critical and relevant to the Applicant’s case.

3D.    As a result of the error in 3C above, the non-revocation decision is vitiated by jurisdictional error.

Illogical and irrational reasoning grounds

4.    The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) of the Migration Act 1958 why the original decision should be revoked by a process of illogical and irrational reasoning which rendered the decision legally unreasonable in that he disregarded the interests of the Australian community in ensuring that Corey was able to live with and be cared for permanently by the Applicant, instead of being placed in State care or incarceration, yet at the same time purported to make the decision for the protection of the Australian community.

5.    The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) why the original decision should be revoked by a process of illogical and irrational reasoning which rendered the decision legally unreasonable in that he did not reason that as Corey had only one alternative to State care or incarceration, which was to be cared for and live with the Applicant on a permanent basis (because an AVO precluded him living with his mother, and because Corey’s history of violence to her and his minor siblings created a risk for their safety if he were to do so), it was in the interests of his mother and his minor siblings that the Applicant remain in Australia to care for their son.

6.    The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) why the original decision should be revoked by a process of illogical and irrational reasoning which involved, which involved (sic) proceeding on the basis that the importance of Corey’s living with the Applicant was merely a matter of being socially “reunited with” the Applicant so that Corey could “maintain and develop [his] relationship with” the Applicant, rather than being his only legal and practical alternative to State care or incarceration.

7.    The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) why the original decision should be revoked by a process of illogical and irrational reasoning which involved giving the intellectual disability of the Applicant’s daughter Jessica less weight than it would otherwise have been given by him on the basis that the advice of the FACS worker Mr Long about this matter was not corroborated by other sources, without either contacting the Applicant to ask specifically about that matter or taking up the express invitation in Mr Long’s letter of 31 July 2017 (CB 146 and 461) to obtain further information about that matter.

Duty to Inquire Grounds

8.    The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) why the original decision should be revoked by unreasonably failing to obtain material that was readily available and centrally relevant to the decision, by means of contacting either the Applicant, Mr Long (or other officer of facts) and specifically asking about whether there were any legally or practically available alternatives for Corey’s living and care arrangements (apart from living with the Applicant) if his father were to be deported.

Particulars

If the Applicant, or Mr Long or Child Protection Manager Catherine Drobiszewski had been contacted on the number provided at CB 146 and 461, the Respondent would have been provided with Corey’s Children’s Court Support Plan filed on 16 February 2018 by Ms Drobiszewski in the Children’s Court of New South Wales and the other documents including an AVO precluding Corey from living with his mother (as annexed to the affidavit of the Applicant sworn on 11 September 2018).

9.    The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) why the original decision should be revoked by unreasonably failing to obtain material that was readily available and centrally relevant to the decision, by means of contacting either the Applicant, or Mr Long (or his named colleague, or other FACS officer) to obtain further information about Jessica’s intellectual disability, in the face of the express invitation in Mr Long’s letter (CB 146 and 461) to obtain further information.

Particulars

If the Applicant, or Mr Long or Child Protection Manager Catherine Drobiszewski had been contacted on the number provided at CB 146 and 461, the Respondent would have been provided with further information about Jessica’s intellectual disability.

The evidence

11    The applicant sought to read an affidavit affirmed by him on 11 September 2018. In that affidavit, the applicant seeks to depose to what he would have done “in the days and weeks before 24 May 2018, if the Minister had contacted me and asked me specifically for further information about whether my son Corey could go back to living at home with his mother…”. Annexed to the affidavit are a number of documents which the applicant says he would have given to the Minister. In that affidavit the applicant also deposes to what he would have done “in the days and weeks before 24 May 2018, if the Minister had contacted me and asked me specifically for further information about my daughter Jessica’s intellectual disability.” A number of documents on that subject are also annexed.

12    Counsel for the applicant accepted that this material did not go to the issue of the Minister’s failure to take into account relevant considerations as the material was not before the Minister but submitted that it went to the heart of the issue of what was in the best interests of the applicant’s two children, Jessica and Corey.

13    Counsel for the Minister objected to the affidavit on the ground of relevance, submitting that the affidavit may be relevant to the failure to inquire point and that the affidavit could be admitted subject to relevance. The Minister expressly did not submit that, if he was under a legal duty to make further inquiry, that inquiry would not have yielded a useful result.

14    So as to allow the full submissions to be put on behalf of the applicant, I deferred ruling on the admissibility of this affidavit. I said that I would make a ruling in the course of my final judgment and indicated that a ruling I may make was to admit the affidavit but on a limited basis.

15    Pursuant to s 136 of the Evidence Act 1995 (Cth) I propose to admit the applicant’s affidavit but limit the use to be made of it so that it is evidence only of what the applicant says he would have done if asked by the Minister. This is to meet the objection in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [26] that further inquiry would not have yielded a useful result. To be clear, I do not admit this affidavit as evidence of the facts as to do so would tend to lead the Court into merits review and would be contrary to the principle that evidence is not admissible in judicial review proceedings to contradict findings of fact by the decision-maker: some authorities to this effect are referred to in the decision of the Full Court in Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; 251 FCR 23 at [52]-[55]. I refer in this respect to the finding by the Minister at [14] that the children live with their mother, that finding being made in light of the material put forward by the applicant to that effect, for example at CB 101. I also note in this respect that the applicant, in his representation to the Minister reproduced at CB 105, answered no to the question whether there were any Court orders that related to his children. Examples of court orders given in that question were “custody arrangements… or care arrangements with the Department of Human Services etc”.

16    I note also that in any event the relevance of the affidavit depends on the applicant succeeding on his ground that the Minister was under a duty to inquire.

17    The Minister did not lead any evidence on the judicial review application.

The parties’ submissions

18    The applicant’s submissions were divided between the legal errors asserted in relation to the Minister’s consideration of the son Corey and those in relation to his daughter Jessica. Corey was born on 26 October 2005. Jessica was born on 1 September 2002.

19    In relation to Corey, the applicant submitted that while the Minister did conclude, at [13], that it was in the best interests of the applicant’s children for the original decision to be revoked, and while considering that Corey wanted to live with his father and that the applicant had agreed to look after Corey full time if released, the Minister’s reasons showed no record of having considered that this was Corey’s only domestic option, apart from State care or incarceration (as Ms Eisbach, who was now in another de facto relationship, could not have Corey living with her, due to Corey’s past violence against her which have resulted in a Domestic or Apprehended Violence Order (DVO, termed an AVO in the further amended originating application) against him that remains on foot).

20    The applicant submitted that the Minister’s reasons recorded consideration of the letter from Mr Long about Corey, but the Minister never took the obvious step of calling Mr Long for further information in accordance with the invitation in Mr Long’s letter. If he had made that call; or asked the applicant for further information about Corey’s situation, these centrally relevant and critical facts and information would have been provided by one or another, or both. The Minister did not take into account the fact that Corey, for the remainder of his minority at least, would either be living with his father, the applicant, or, if not, in State care or incarceration. That was the realistic universe of options for this child, and the Minister did not have regard to that fact.

21    The applicant submitted that this inevitably amounted to a failure to have regard or give meaningful consideration to the best interests of Corey, consistently with Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA made by the Minister on 22 December 2014 (Direction 65), or otherwise, in particular of the extent to which the applicant was likely to play a positive role in the future “including any Court orders relating to parental access and care arrangements” and the likely effect separation would have on the child and whether there were other persons who already fulfilled a parental role in relation to the child (Clause 13.2(4)(b), (d) and (e) of Direction 65).

22    The applicant submitted that because of the Minister’s failure to consider the DVO, the fact that Corey’s mother could not care for Corey (referring to Annexure RLS-1, pages 4, 11 and 12 to the applicant’s affidavit of 11 September 2018) and the fact that if the applicant were deported, Corey would be in State care or incarceration, the mandatory relevant considerations listed in paragraphs 1, 2 and 3 of the amended originating application had not been considered.

23    Put another way, the applicant submitted, the Minister’s reasoning was illogical or irrational in that he appeared to consider, at [20], the significance of the applicant’s presence in Australia to Corey as being merely the ability to maintain and continue to develop his relationship with him. This was a significant misdescription and fell so far short of recording the facts concerning Corey’s best interests and the impact on him and Australian society as to fail to consider various relevant matters.

24    The applicant further submitted that in not making the obvious inquiry about Corey, as invited by Mr Long, the Minister failed to obtain the material annexed to the applicant’s affidavit of 11 September 2018. This included Court orders, namely the DVO and other information establishing that Corey could not legally or safely for the mother, Ms Eisbach, live with her, that she was pregnant and had a new partner and that Corey’s only domestic option was living with the applicant. The information not requested, and therefore not obtained, showed that for Corey the choice (if the applicant was deported) as to living arrangements is non-existent and he (Corey) would go into State care, or incarceration. Despite this, the Minister found that there was not another reason for the revocation of the original visa cancellation decision, and completely missed the crucial fact that if the applicant was deported, Corey would be in State care or incarceration (ground 5), and appeared to regard the importance of the applicant’s non-deportation to Corey as a matter of relationship maintenance (see ground 6). As a result, the applicant submitted that the Minister’s decision was illogically and irrationally reasoned, and legally unreasonable in result.

25    The applicant’s submissions then turned to relevant considerations, grounds 1, 2 and 3 of the further amended originating application.

26    The applicant submitted the Minister had not engaged in a meaningful consideration or active intellectual process in relation to considering the impact on Corey and at [19] and [20] of his decision had regarded the issue as one of “maintaining a relationship” with the applicant. This demonstrated a failure to intellectually engage with the problem at hand, which was that if the applicant went, Corey would grow to adulthood in State care or incarceration. The fact that the applicant’s deportation to the UK would consign his son to this fate was not considered at all, or at any level, by the Minister.

27    Importantly, the applicant submitted, even on the material before the Minister, the fact that Corey would not be able to live with his father if deported and had been violent in the home was squarely raised, clearly requiring an inference to be drawn that he could not safely live with his mother and minor siblings, and his incarceration in juvenile justice centres was required (raising the choice between living with his father versus State care or incarceration) (referring to the letter from Mr Long). The applicant submitted that this failure to intellectually engage was a failure to consider a relevant matter: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45].

28    The applicant submitted that the Minister also failed to consider the best interests of Corey, due to the deficient consideration of whether or not the applicant was likely to perform a positive role in his life in the future. This aspect of the best interests of the child was required by Direction 65, and the Minister at [13] of his reasons acknowledged that the best interests of minor children were relevant considerations. The Minister did not consider the likelihood that the positive role would be as the only person with whom Corey could live on a domestic basis, as an alternative to State care or incarceration. Regarding it as important for Corey to be “reunited” with the applicant to resolve his current behavioural and psychological issues, at [19], did not consider the critical information that in the short, medium and long term, Corey would only be able to live with the applicant.

29    The applicant submitted that the Minister was able to infer from the material which was before him, particularly Mr Long’s letter of 31 July 2017, that Corey could not live in the home with his mother due to his violent behaviour, and the fact that he was placing her very young children from another partner at risk. Corey had come to the attention of police for his violent behaviour, and, therefore, other domestic living arrangements needed to be found. The letter documented that appropriate living arrangements had been found, which was living with the applicant, his father, and was the subject of an agreement. The applicant submitted that the Minister was able to infer that there was no other domestic living arrangement available to Corey on the face of that letter. The experts dealing with Corey in this matter of his future housing and living arrangements indicated one alternative to State care and incarceration which was Corey living with the applicant. The applicant submitted the Minister had completely failed to grapple at an intellectual level, as required, with this matter, the matter raised in ground 1, and had instead dealt with this matter on the level of it being of psychological benefit and behavioural benefit for the applicant to remain in the country and to be reunited occasionally or to be able to develop the relationship, it was said, between the father and the son.

30    The difficulty with this submission, that there was a jurisdictional error in failing to grapple intellectually with a matter that was no more than an available inference which the Minister did not draw, led to the further amendment of the amended notice of appeal by way of adding grounds 3A-3D, set out at [10] above.

31    The applicant submitted in support of those grounds that the only available inference from Mr Long’s letter was that the only domestic living arrangement available to Corey was based on the agreement with the applicant, his father, as an alternative to State care or juvenile detention. It was put that the letter on its face necessarily ruled out the possibility of Corey living with his mother.

32    The applicant also submitted, in support of his grounds 4-6, the failure to engage with the consequence of the applicant’s deportation for Corey (State care or incarceration) resulted in a legally unreasonable decision, by reason of illogicality and irrationality. Paragraphs [19]-[20] of the Minister’s decision, in particular, revealed this illogicality. The Minister failed to appreciate that the importance of the applicant remaining in Australia to Corey was not simply a matter going to “being reunited” with his father or addressing his short term or current behavioural issues, but of his whole future - and whether he would go into State care or incarceration or not. The applicant submitted that the Minister’s failure to grasp this point made his decision so lacking in common sense or plainly unjust, having regard to the terms, scope and purpose of the statutory power which was about the protection of the Australian community (and, as structured by Direction 65 and the framework the Minister himself set out in his reasons, Australian minors in particular) as to be outside the range of lawful outcomes of the exercise of the power in the present circumstances: Minister for Immigration and Border Protection v Stretton [2016]; FCAFC 11; 237 FCR 1 at [11] (Allsop CJ).

33    The applicant submitted it beggared belief that the Minister had decided that there was no other reason not to revoke the deportation of a 12 year old boy’s father to the UK, without understanding and engaging with the fact that he represented the boy’s only remaining chance of a home and normal home life apart from State care or incarceration. The applicant submitted that in this field of decision-making, concerning the best interests of minor children, this was a truly Kafkaesque decision that no reasonable decision maker in the Minister’s position could have reached. It was really quite absurd to suggest that the best interests of the child were considered, when the Minister failed to consider this fundamental matter.

34    As to the applicant’s daughter, Jessica, the applicant submitted the Minister also reasoned irrationally and illogically, in relation to the impact on and best interest of Jessica, by treating the advice provided in the representation that she had an intellectual disability as a matter about which there was a lack of further information and not contacting Mr Long at FACS (who mentioned this matter in his letter and invited further requests for information), or the applicant. In addition, the failure to make an inquiry of Mr Long or the applicant about Jessica also exhibited illogical and irrational reasoning (the Minister downplaying the weight to be given to Jessica’s intellectual disability apparently because it had not been independently corroborated as a fact, but at the same time refraining from calling Mr Long of FACS) was also a failure to obtain centrally relevant or critical information to the decision (being a matter going to the heart of the best interests of a child, a matter emphasised as a consideration in Direction 65).

35    In relation to ground 7, the Minister’s finding at [18], which was not to give Jessica’s intellectual disability extra weight because it had not been corroborated by further information (when Mr Long’s letter expressly invited the Minister to seek it) was also legally unreasonable as not being a decision a logical or rational decision-maker could reach, on the material (Mr Long’s letter). There was no logical explanation, the applicant submitted, for the call to Mr Long not to have been made - the decision-maker was presented expressly with an invitation to obtain the further information he found lacking. It was irrational in those circumstances to decry the absence of that further information. This finding was illogical and irrational in the sense considered in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23]-[24] (Gummow and Kiefel JJ) and legally unreasonable in the sense used in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332.

36    The applicant relied on the duty to inquire as recognised in Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50 at [56] (Tracey, Mortimer and Moshinsky JJ) and by Griffiths J in BBP15 v Minister for Immigration and Border Protection [2018] FCA 501.

37    The applicant submitted that he had never been represented by a lawyer or migration agent, which was an important reason for finding that no duty to inquire arose in BBP15.

38    As the failure to call Mr Long as invited (or make a further request of the applicant) did give rise to jurisdictional error, these failures (together or separately), the applicant submitted, rendered the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (as considered in Minister for Immigration and Citizenship v Li).

39    The applicant submitted that to deport the father of an Australian family, having been told that the 12 year old son had behavioural problems and a developing history of violent conduct without calling the FACS officer (or the father), when invited, to get the full picture, which would have revealed how essential the father’s continued presence in his country as a carer was, for both Corey and Jessica, bespoke a manifestly unreasonable decision. No reasonable decision-maker with the responsibilities the Minister had under the Act (including as informed by Direction 65) to the Australian community and minors in it, could have failed to ascertain the relevant facts that revealed that Corey’s only family home option (apart from State care or incarceration) was with his father. The Minister did not know this because he did not bother to ask for readily available and centrally relevant material about Corey from Mr Long (or the applicant). The Minister never asked the question: “But he can go back to living with his mother, correct?” or, of Jessica: “The concerns about her intellectual disability have a medical basis, correct?”. Yet these inquiries were obvious ones to be made, by any remotely diligent decision-maker sitting in judgment on the future of the applicant and his family, as the Minister was. They were invited by Mr Long, the answers would have been readily given and so, for the Minister to have proceeded from 31 July 2017 (the date of Mr Long’s letter) without making any attempt to make these inquiries led to a legally unreasonable decision: BBP15 at [48], citing Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 (Wilcox J).

40    The Minister submitted that grounds 1–6 criticised, in various ways, the Minister’s failure to consider Corey’s changed circumstances. The applicant did not appear to submit that material before the Minister raised this issue. There was nothing in the Court Book that suggested that the Minister had information before him relating to this new issue. The latest representation made by the applicant to the Minister, dated 2 November 2017, referred to the son’s circumstances as being unchanged from those described in the letter from FACS.

41    That letter, the Minister submitted, suggested that the youngest son was incarcerated in a juvenile justice centre. The letter emphasised the importance of the father’s presence for the stabilisation of the son’s life. That passage was expressly referred to by the Minister, at [19]. Likewise, the representations by the mother of the child emphasised the importance of the father’s presence, and the son’s desire to live with his father, but did not allude to any more significant difficulty as to living arrangements.

42    However, there was no material before the Minister that asserted: (a) that the son could not live with his mother due to an AVO / past verbal and physical abuse of his mother which led to his incarceration; (b) that the son would accordingly be required to be placed in State care or incarceration in the absence of being cared for by his father; or (c) it was in the interest of the applicant’s former partner and her minor children that the son live with the applicant given the son’s history of criminal violence and violence to his mother and minor siblings.

43    Accordingly, the Minister submitted, grounds 1-3 must fail. He was not required to consider matters or arguments that did not arise on the material before him. At most, the structure of s 501CA suggested that the Minister must consider the applicant’s representations “as a whole”: see Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56]; approved in Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [41]. The Minister discharged that obligation.

44    In relation to the substance of the amendments adding grounds 3A-3D, the Minister submitted that there was material before him saying that the applicant father will have to reside at the house of his adult daughter. Also because the Minister had no reason to contemplate that Corey lived anywhere other than with the mother, one issue that was not then addressed was whether the applicant’s offer to have Corey live with him was one capable of being accepted, if the applicant was going to live with his adult daughter. The sort of factual narrative that the applicant put to the Court that Corey would go and live with him did not line up with the applicant’s letter of 2 November 2017. And then in the last representation made to the Minister, on 2 November 2017, the applicant said that he had parole until 3 May 2019 and that his daughter had offered for him to live there for that period or until he found accommodation and that he wanted to do that. At CB 202, the applicant said that he wanted to care for Corey who had been having difficulty, and he then referred back to Mr Long’s letter, but that did not suggest that there was any important change: it was no more than a reference to Mr Long’s letter.

45    Going to that letter, the Minister submitted it went too far to say that the only inference available from this letter was that Corey would not be able to live with his mother. It contained concerns that Corey might hurt someone at his home, but from that starting place there was not an inexorable possibility that he would not be able to live there, particularly given his young age. None of the later representations raised any issue other than the psychological issues that the Minister considered in [19], and in that context there was not some single inference that could be drawn from Mr Long’s letter. Taking the material as a whole, the representation that was made was that the son has psychological and behavioural issues that would be exacerbated if the cancellation of the visa was not revoked, and that was precisely the representation that the Minister considered.

46    The Minister submitted that even if one adopted the approach of whether an issue “squarely arises”, the issue of the living arrangements for Corey did not squarely arise from Mr Long’s letter, either on its own or within the context of the later representations.

47    The Minister submitted that grounds 4–6 must also fail, because it could not be illogical or irrational for the Minister to fail to regard matters of which he was unaware, and which did not arise on the material before him. Moreover, any argument of irrationality must overcome the broad area of decisional freedom afforded to the Minister exercising personal powers under s 501CA(4): see Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [55] – [65]. In the present case, it was within power for the Minister to form the judgment that he did at [68] as to the relative weight to be given to the protection of the community versus the interests of the children as a primary consideration. In making that decision, the reasoning at [18] – [20] made clear that the Minister understood the serious impact on the children as it arose from the material before him.

48    Ground 8 alleged that the Minister breached a duty to inquire as to Corey’s circumstances. The Minister had no express obligation under s 501CA to inquire. In the different context of a tribunal’s obligation to conduct a “review”, the majority in SZIAI observed at [25] that “it may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.” The Minister submitted that to the extent, if any, that this reasoning could apply to a personal decision of the Minister, there was nothing to suggest to the Minister that the circumstances of the youngest son had changed such as would warrant an inquiry. The applicant had submitted, over a period, a number of documents that related to the son’s circumstances. There was nothing to suggest to the Minister that any further inquiry was needed. On the material before the Minister, there was nothing that would put the Minister on notice or that would suggest that the living arrangements were a critical fact in such a way that no reasonable decision-maker could fail to pick up the telephone and ask whether the living arrangements were still the same.

49    Turning to the daughter’s condition, grounds 7 and 9, the Minister submitted that as observed by him at [18], Mr Long’s letter referred to the daughter as having an intellectual disability. No details were given, and the disability was not referred to by either the applicant or the mother of the child. In those circumstances, it was open to the Minister to decide, as he did, that the disability was not such as to affect the weight to be given to the best interests of the daughter. No error was shown, nor was there any obligation on the Minister to inquire about the extent of the daughter’s disabilities.

Consideration

50    I consider first the matters raised by the amended grounds 3A-3D since, apart from those grounds, the substance of the applicant’s case depended on whether or not the Minister was obliged to go further than the matters put in the representations made to him by the applicant or in support of the applicant’s application.

51    In my opinion, it could not be said that the only available inference from Mr Long’s letter was that Corey could not continue to safely live with his mother without unacceptable danger to her and her other children. The substance of what was put by counsel for the applicant was that the Minister made a jurisdictional error in failing to draw that inference, it being, as a matter of fact-finding, the only inference. In my opinion the Minister was entitled to find, and this finding was not directly challenged, that Corey lived with his mother. Any inference that could be drawn from the letter needs to be considered in that context and also in the context that the material before the Minister otherwise showed that there were no court orders relating to Corey. For the purposes of judicial review, whether the inference was available to be drawn is not to the point as this claimed jurisdictional error could only be made out if the fact that Corey could not live with his mother was the only available inference. In my opinion this ground is substantially affected by hindsight, being the later material, the subject of the applicant’s affidavit, that became available to the applicant but which the applicant did not put before the Minister. Ground 3A therefore fails.

52    In my opinion, ground 3B fails for the same reason. However as a matter of fact it is not necessarily the corollary of ground 3A, that is, if the only inference was that Corey could not live with his mother then in the circumstances of his father’s deportation Corey would be required to go into State care or incarceration. Certainly Mr Long’s letter indicated the applicant father’s assent to Corey living with him but the material does not deal with whether or not another relation would be willing to have Corey live with them.

53    Grounds 3C and 3D are consequential and cannot succeed in light of the failure of grounds 3A and 3B.

54    As I have said, the substance of the applicant’s case depended on whether or not the Minister was obliged to go further than the matters put in the representations made to him by the applicant or in support of the applicant’s application. Unless that contention can be made good, the majority of the applicant’s submissions, including their invocation of the merits, fall away.

55    In SZIAI, the High Court said, (at [25]):

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case…

(Footnote omitted.)

56    In my opinion, in the present case neither the terms of the statute nor what was done in the course of decision-making nor the representations which were made establish that the Minister was obliged to make any further inquiry.

57    The terms of the letter from Mr Long do not take the matter further. The closing sentence of that letter is a template provision of contact details in case the addressee wishes to contact the author or another relevant officer. The sentence does not bear the substantial weight the applicant seeks to put on it. No doubt either of those officers was available to provide information but nowhere in the representations made by the applicant did the applicant suggest or ask that the Minister or the Department contact FACS.

58    It is for the applicant to make the representations to the Minister which he wishes to make. As pointed out in the written submissions, and as I have summarised at [6] above, the applicant had submitted, over a period, a number of documents that related to Corey’s circumstances. There was nothing to suggest to the Minister that the circumstances of Corey had changed such as would warrant an inquiry. There was no submission put to the Minister showing that any further inquiry was needed or required. In my opinion, there was nothing giving rise to a legal duty to inquire as a matter going to the jurisdiction of the Minister.

59    In relation to the line of authority and the considerations in SZIAI, I note that this is not a tribunal case such that the process is not inquisitorial; the facts were well known to the applicant and were relevantly within his power to adduce; there was no basis for the Minister to think that the position as contained in the representations had changed. I accept for present purposes that the material that could have been discovered if there was a duty to discover it was important in the relevant sense. In short in my opinion without the benefit of hindsight there was not a factual basis for concluding that the Minister’s failure to inquire constituted a failure to undertake his statutory duty or is otherwise so unreasonable as to vitiate his decision: see SZIAI at [26].

60    In my opinion, so far as the applicant’s submissions depend on a failure on the part of the Minister to inquire into the condition or circumstances of either Corey or Jessica, those submissions fail. As I have said, on the material before the Minister, the Minister found, at [14], that those children resided with their mother.

61    As to mandatory relevant considerations, there is a tension between Minister for Home Affairs v Buadromo [2018] FCAFC 151 relied on by counsel for the Minister, and Hay v Minister for Home Affairs [2018] FCAFC 149, Hooton v Minister for Home Affairs [2018] FCAFC 142 and Viane v Minister for Immigration and Border Protection [2018] FCAFC 116. Buadromo does not consider Viane. For this reason and because the approach in Viane is more favourable to the applicant I will, for present purposes, apply Viane. But this leaves the major question of what was put by the applicant or on his behalf in the representations. In my opinion a Viane analysis does not assist the applicant as there was no failure on the part of the Minister to consider “each of the matters that are raised in the representations in a manner which identified them as significant”: see Viane at [72].

62    Insofar as this claim may bear a different legal characterisation, as pleaded in ground 3C, as material matters critical and relevant to the applicant’s case, rather than one or more mandatory relevant considerations, it depends, at least, on either of the two inferences pleaded as grounds 3A and 3B and fails in light of my rejection of those grounds. In Viane it was held that the representations the Minister failed to consider concerned the hardship the appellant’s partner would suffer if she had to relocate to Samoa and that those representations were substantial and significant such that the Minister’s failure to consider them should be characterised as jurisdictional error: see the judgment at [2] per Reeves J, at [31] per Rangiah J and at [75] per Colvin J. In the present case, the representations that Corey could not live with his mother and could live only with his father as an alternative to State care or incarceration were not put expressly or as a matter of necessary inference.

63    As I have said, I do not accept the applicant’s submission that the material before the Minister required an inference to be drawn that Corey could not safely live with his mother and minor siblings and that this, therefore, was a failure to consider a relevant matter. The applicant’s reliance, with reference to the concept of the decision-maker being required to engage in an active intellectual process directed at that claim, with reference to Carrascalao at [45], therefore fails.

64    As to the claims of legal error on the part of the Minister in considering the best interests of Jessica, again it substantially rests on an alleged failure to inquire and for the same reasons I have given in relation to the position of Corey, I reject the submission that the Minister failed to make an inquiry he was required to make.

65    I therefore do not accept the submission that the Minister reasoned irrationally and illogically in relation to the impact on and best interest of Jessica. I do not read what the Minister said at [18] of his reasons as requiring corroboration but as observing that neither Jessica’s mother or father had mentioned the issue of her intellectual disability and in light of the lack of that further information the Minister had not given the matter extra weight in assessing Jessica’s best interests. It follows I also reject the submission that the Minister’s decision was legally unreasonable in this respect.

66    I have proceeded so far largely by reference to the submissions. Turning to the grounds of the amended originating application, grounds 1-3 depend, at least, on the applicant making good the ground that the Minister erred in law in failing to make further inquiries. Grounds 4-7 are in the same category. Grounds 8 and 9 are also in the same category. Since I have rejected the applicant’s submission that the Minister did err in law in failing to make further inquiries each of the grounds fails. I have expressly dealt with Grounds 3A-3D at [50]-[53] above.

67    To the extent that the applicant submitted that, even in the absence of any duty to inquire arising from the material before the Minister or there being more than one available inference from Mr Long’s letter, the Minister’s decision was vitiated by jurisdictional error arising from a failure to exercise or complete his statutory task on the basis of the material that was before him (whether framed by reference to legal unreasonableness, illogical and irrational reasoning or otherwise) I reject that submission. The Minister considered each representation made by the applicant and made findings accordingly. No jurisdictional error has been made out. The Minister found, at [19], that it was particularly important for Corey to be reunited with his father if Corey’s current psychological and behavioural issues were to be resolved.

Conclusion and orders

68    This is not a case that succeeds on judicial review. What appears to have happened is that, apparently through lack of advice, the applicant did not make representations to the Minister about important issues concerning the future care of Corey, and, to a lesser extent, Jessica, which post-dated the representations the applicant did make but preceded the date of the Department’s brief to the Minister and the Minister’s decision. It is a case in which, where possible, the Minister’s decision should be reconsidered so that what now appears, from the information not provided by the applicant to the Minister, may be the unhappy future of at least one Australian child is taken into account.

69    I would dismiss the application, with costs.

70    The orders I make are as follows: the applicant’s application for judicial review is dismissed. The applicant is to pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    24 October 2018