FEDERAL COURT OF AUSTRALIA
Sabado v Minister for Home Affairs [2019] FCA 26
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application is allowed.
2. A writ of certiorari to issue quashing the decision of the respondent dated 18 June 2018.
3. A writ of mandamus to issue requiring the respondent to re-determine according to law the application by the applicant to revoke the cancellation of his Class BB Subclass 155 Five-Year Resident Return visa.
4. The respondent is to pay the applicant’s legal costs of the proceeding, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 The applicant, Mr Sabado, seeks judicial review of a decision by the respondent, the Minister for Home Affairs (the Minister), made under subs 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the decision of the Minister’s delegate made under subs 501(3A) to cancel the applicant’s Class BB Subclass 155 Five-Year Resident Return visa (the visa).
2 In support of his application the applicant relied upon his affidavit sworn on 18 July 2018. That affidavit was received as evidence on the application. A further affidavit sworn on 21 October 2018 was received as submission only, with the documents annexed to the affidavit being received only for the purpose of demonstrating the kind of additional material which the applicant would have relied upon if he had been permitted to seek merits review in the Administrative Appeals Tribunal (the AAT).
3 The Minister filed written submissions in advance of the hearing. While the applicant did not file written submissions, he made oral submissions at the hearing. The applicant did not have legal representation. While characterised by the applicant in his submissions in various ways, the grounds raised by him were in essence that:
(1) the Minister failed to take into account the applicant’s completion of a therapeutic sex offender program, the CORE Moderate program, which was a reason put forward by the applicant as to why the cancellation decision should be revoked, finding instead that the applicant was still awaiting placement in the program;
(2) the applicant was denied an opportunity to seek merits review of the Minister’s decision in the AAT;
(3) the applicant had misunderstood a question in the form responding to the invitation to request a revocation of the cancellation decision and as a result, the Minister had wrongly found that he had worked in the community for four years only; and
(4) there was no, or no sufficient, evidence to support the Minister’s finding that the applicant’s rehabilitative efforts have not been tested in the community, and he had not been given a sufficient opportunity to demonstrate that he was rehabilitated because he was moved directly from prison into immigration detention.
4 For the reasons set out below, the Minister fell into jurisdictional error in the manner submitted in the first ground. This means that the Minister failed to make a lawful decision not to revoke the cancellation decision and his decision is invalid. The consequence is that the applicant’s visa remains cancelled and, unless a visa is granted, he must remain in immigration detention pursuant to the Act pending a reconsideration by the Minister of whether or not to revoke the cancellation according to law.
5 The applicant is a citizen of Canada who arrived in Australia at the age of 18 in June 1997. He has lived in Australia since that time.
6 On 2 February 2011, the applicant was convicted in the District Court of New South Wales of the offences of sexual intercourse with person under 10 years (3 counts), indecent assault where victim under the age of 10 years (3 counts), and incite victim under 10 years to commit indecent act and incite aggravated indecency – victim under 16 and under authority of offender (3 counts). The applicant was sentenced to a total effective sentence of eight years and three months, with a non-parole period of five years and six months. He was released from custody on 11 June 2017 pursuant to a decision of the State Parole Authority to authorise his release on conditions and taken immediately into immigration detention where he remains.
2.2 Mandatory cancellation of the applicant’s visa and the request for revocation of the cancellation decision
7 On 3 June 2016, the applicant’s visa was cancelled under subs 501(3A) (the cancellation decision) because the delegate was satisfied that he did not pass the character test by virtue of subss 501(6)(a) and 501(7)(c) and he was serving a sentence of imprisonment on a full time basis in Long Bay Correctional Centre. Subsection 501(6)(a) provides that a person does not pass the character test if a person has a substantial criminal record as defined in subs (7), relevantly if the person has been sentenced to a term of imprisonment of 12 months or more (subs 501(7)(c)).
8 By an application dated 13 June 2016 and received by the Department of Immigration and Border Protection (the Department) on 16 June 2016, the applicant applied to the Minister to seek revocation of the cancellation decision pursuant to subs 501CA(4) of the Act. That section provides that:
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.
9 An undated letter was subsequently delivered by hand to the applicant who was then in immigration detention from the Department attaching further information which it said may also be taken into account when making the decision whether or not to revoke the original cancellation decision, namely, a National Police Certificate dated 1 August 2017 (the National Police Certificate) (the procedural fairness letter). It appears from the index to the submission stamped 24 April 2018 from the Department (the Ministerial submission) that the procedural fairness letter was handed to the applicant in immigration detention on 16 August 2017.
2.3 The Minister’s decision not to revoke the cancellation decision
10 On 18 June 2018, the Minister made a decision personally not to revoke the delegate’s decision to cancel the applicant’s visa. The Minister had before him the Ministerial submission to which was attached draft reasons for a decision not to revoke the cancellation decision, together with evidence and material including: the National Police Certificate; movements record; the applicant’s request for revocation of the cancellation decision; submissions from the applicant dated 9 June 2016 and 18 March 2016; a treatment report from New South Wales Corrective Services dated 6 July 2017; a letter from the applicant received on 2 August 2017; many letters of support from relatives, friends, and prison chaplains; evidence of various vocational, therapeutic and Bible study courses undertaken by the applicant; the procedural fairness letter and the applicant’s response dated 7 September 2017: notification of the State Parole Authority’s decision dated 21 April 2017; release certificate from the Metropolitan Special Programs Centre dated 11 June 2017; parole reporting arrangements dated 29 May 2017; and a child protection notice issued to the applicant.
11 Based upon the National Police Certificate, the Minister found that the applicant did not pass the character test by virtue of subss 501(6)(a) and (7)(c) of the Act because he had been convicted by the NSW District Court of the offence of sexual intercourse – child under 10, for which he was sentenced to six years and nine months imprisonment. The Minister noted that the applicant did not dispute the information in the National Police Certificate regarding his criminal convictions and sentences, or that as a result of this information he does not pass the character test. The Minister therefore proceeded to consider whether there was another reason why the cancellation should be revoked in accordance with subs 501CA(4)(b)(ii) of the Act.
12 The Minister said at [11] that in undertaking this task, he “assessed all the information set out in the attachments”. In particular, at [12] of his reasons, the Minister stated that he had considered the representations and documents submitted by or on behalf of the applicant as to the reasons why the cancellation decision should be revoked which included:
• his strong ties to Australia since he was 18 years of age;
• the impact of his removal on family and friends;
• the support he has from family and friends;
• the steps he has taken to address his offending behaviour; and
• the hardship he would suffer upon return to Canada.
13 The particular matters taken into account by the Minister in reaching the conclusion that he was not satisfied that there is another reason why the original decision should be revoked may be summarised as follows.
14 First, the Minister took into account the strength, nature and duration of the applicant’s ties to Australia including the information provided by the applicant that he had contributed to the community through employment for four years and the hardship which the applicant’s deportation would cause his elderly parents, noting that they were said to be in ill health and that he had sought to provide them with financial assistance to ease their financial burden. He said that if he is deported, his parents would not be able to travel to see him (Minister’s decision at [20]). The Minister found that a non-revocation decision would cause the applicant’s parents and siblings both emotional and financial hardship (Minister’s decision at [22]). The Minister also accepted that a decision not to revoke the visa cancellation would result in emotional hardship for his extended family (Minister’s decision at [27]). The Minister concluded on this issue that:
28. I formed the view that Mr SABADO has strong and long-standing ties to the Australian community. Given Mr SABADO has lived in Australia all of his adult life I hold the view that the Australian community may afford a higher tolerance of criminal conduct. I have given more weight to this consideration as Mr SABADO has made some positive contributions to the community through his employment and his familial and social relationships. I have taken his positive contributions into account and I also recognise the effect of non-revocation for his family and members of his social circle in Australia.
15 Secondly, the Minister took into account the impediments that the applicant would face if removed from Australia to Canada in establishing himself and maintaining basic living standards. He noted that the applicant had no significant health issues although he had expressed concerns about the impact on his mental well-being if he were deported and the strain it would cause for his relationship with his family and relatives. The Minister concluded that:
37. Canada is culturally similar to Australia and has comparable standards of health care and social welfare support. Mr SABADO completed his schooling in Canada and this will assist him in finding future employment. I find that Mr SABADO will have similar levels of access as that generally available to other Canadian citizens in the same position. He will however have to re-connect to health services and there will be a period of re-adjustment.
38. In light of the above consideration, given the presence of his immediate family in Australia, the lack of family in [sic] support in Canada, as well as his lengthy residence in Australia of 21 years, I find that non-revocation of the cancellation decision will involve substantial emotional hardship for Mr SABADO.
16 Thirdly, the Minister turned to consider the protection of the Australian community, noting the applicant’s claim that he does not pose an unacceptable risk of reoffending. Having regard to the fact that the applicant had been convicted of multiple counts of sexual offending against a minor who the Minister emphasised was a vulnerable member of the community, the sentencing remarks, the substantial sentences of imprisonment imposed, and the sentencing judge’s views as to the need for a very lengthy period of supervised parole, the Minister found that the applicant’s sexual offending against a child was “very serious” (Minister’s reasons that [40]-[48]). The Minister stated at [49] that he had also considered whether the applicant poses a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending “and giving consideration to the steps Mr SABADO has undertaken to reform and address his behaviour.” The Minister also stated that he took into account the applicant’s overall conduct in the custodial and non-custodial environment, and his insight into the offending. The Minister acknowledged that the sentencing remarks stated that the applicant had pleaded guilty at the earliest possible opportunity, had taken steps to rehabilitate himself, was considered by the sentencing judge to have “good prospects for rehabilitation”, and was a first-time offender (Minister’s reasons at [50], [54] and [55]). The Minister also noted that the judge found that the applicant was clearly grooming the victim despite his denial of that aspect of the offending, that the offences were committed when the applicant was a trusted family friend, and that they had taken place in the sanctity of the victim’s home where she should have felt safe (Minister’s reasons at [52]-[53]). The Minister also referred to a report from a psychologist from the CORE Moderate program from New South Wales Corrective Services dated 6 July 2017 indicating that “his composite assessment places him in the moderate – low risk category compared to other male offenders” and noting the most salient risks for the applicant (Minister’s reasons at [56]).
17 The Minister also took into account:
(1) childhood experiences which had impacted on the applicant’s ability to form relationships and engage socially (Minister’s reasons at [57]-[58]);
(2) a report from New South Wales Department of Correctional Services stating that the applicant participated in employment while incarcerated and has been compliant with custodial requirements;
(3) steps taken by the applicant to participate in the Sex Offender program, namely the CORE Moderate program, but that he was awaiting a placement in this program (Minister’s reasons at [63]);
(4) that the applicant says he has been attending regular church services, undertaking religious studies, has completed work related vocational courses and therapeutic courses, and that his former employer would be happy to offer him employment on his release (Minister’s reasons at [64]-[68]);
(5) the strong support that the applicant has from his parents, siblings and relatives who have all expressed the view that he has changed, has rehabilitated himself, and is truly remorseful (Minister’s reasons at [69]); and
(6) the letters of support from the chaplains at the Long Bay Correctional Centre stating that he has expressed remorse and is determined never to reoffend (Minister’s reasons at [70]).
18 On the issue of risk to the Australian community, the Minister concluded that:
73. Notwithstanding Mr SABADO’s remorse, the support he has from family and friends in Australia and other relevant matters, I also note his intentions to be a law-abiding citizen, and any rehabilitative efforts, have not been tested in the community. I find that there remains a likelihood that Mr SABADO will reoffend, albeit a low likelihood.
74. Mr SABADO’s sexual offending, involving a young child, has caused significant harm to both the victim and her family. Should he re-offend again with further sexual offences against a young child, it may result in further psychological harm to members of the Australian community.
19 Finally the Minister concluded that:
79.… in considering whether I was satisfied that there is another reason why the original decision should revoked, I gave considerable weight to the very serious nature of the crimes committed by Mr SABADO, that are of a sexual nature, and involved a vulnerable member of the community, that being a minor.
80. Further I find that the Australian community could be exposed to significant harm should Mr SABADO reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr SABADO.
81. 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.
82. 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 SABADO represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed his employment, and familial ties to Australia, and the hardship Mr SABADO, his family and social networks will endure in the event the original decision is not revoked.
83. Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Mr SABADO’s visa should be revoked…
3.1 The failure to have regard to the applicant’s completion of the CORE Moderate Program
20 The applicant submitted that the Minister failed to take into account relevant considerations in failing to have regard to Attachment R to the Departmental submission, being the applicant’s response to the procedural fairness letter. In particular, the applicant said that the Minister failed to take into account his statement in that letter that “I have addressed my offending behaviour by completing the Therapeutic Sex Offender Program open to the Metropolitan Special Program Centre at Long Bay Correctional Centre.” The Applicant confirmed at the hearing that the program referred to in this ground of the application was the CORE Moderate program. The applicant submitted that this was a matter which ought to have been taken into account by the Minister in reaching a view as to the extent to which he was rehabilitated, the strong commitment which he had to his rehabilitation, and in reaching a view about the risk that the applicant might reoffend.
21 It was not in issue that a failure to consider a mandatory relevant consideration may lead to jurisdictional error. The Full Court in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (Maioha) recently considered the principles which emerge from a consideration of the relevant authorities in the context, as here, of a decision by the Minister under subs 501CA(4) of the Act to refuse to revoke a visa cancellation decision. Those principles may be summarised as follows.
22 First, the Full Court agreed at [49] (Rares and Robertson JJ) and [62] (Flick J) with the analysis by the Full Court in Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 that:
47. … There was only one question that the Minister ultimately had to answer under s 501CA(4)(b)(ii) of the Act. It was whether he was satisfied that there was another reason why the original decision should be revoked. In the course of answering that question, the Minister was required to consider the representations as a whole as a mandatory relevant consideration: see Buadromo at [41]. If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the Minister may commit jurisdictional error: Viane [v Minister for Immigration and Border Protection [2018] FCAFC 116] at [30]…
23 Secondly, after cautioning that any resort to the language of “proper, genuine and realistic consideration” should be avoided as it is apt to lead the Court to engage in impermissible merits review, Justices Rares and Robertson explained that:
45. What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put… Because the Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. Neither does the Court ignore such a statement.
(emphasis added)
24 Thirdly, in line with this approach, a decision-maker is not required to make a finding of fact with respect to every claim made, or issue raised, by an applicant. A finding may not be required where, for example, a claim or issue is irrelevant or it is subsumed within a claim or issue of greater generality; Maioha at [41] (Rares and Robertson JJ) (approving Buadromo v Minister for Immigration and Border Protection [2018] FCAFC 151 at [41] (the Court)). Similarly, Flick J explained in Maioha that:
62. … A proper consideration of “representations”, however, does not require the consideration of all such matters as may be found to have been set forth in those “representations” by the visa holder. A visa holder is not to be permitted to pursue a course of parsing and analysing “representations” with a view to identifying some peripheral matter which has not expressly found its way into the reasons for a decision made under s 501CA(4) and to thereafter rely upon the absence of such a reference to establish jurisdictional error.
63. But there may be circumstances in which a failure to expressly take into account some discrete matter set forth in the “representations” may lead to – or assist in reaching – a conclusion that the “representations” have not been properly considered as a whole: Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [42].
25 I note that while Flick J reached the same conclusion as the plurality in Maioha by a different line of reasoning (as his Honour held at [60]), in my view his exposition of these principles accords with that of Rares and Robertson JJ.
3.1.3 The jurisdictional error is established
26 The Minister accepted in oral submissions that there was no express reference to the applicant’s completion of the CORE Moderate program. However, the Minister submitted that he had properly considered the issue of the applicant’s rehabilitation and that the applicant had not provided any detail about the program in his letter at Attachment R to the Ministerial submission. However, the applicant’s participation in the CORE Moderate program formed part of the express basis for the opinions expressed by the psychologist in her detailed report dated 6 July 2017 on which the applicant relied in support of his request for revocation. That report also contained details about the CORE Moderate program. In her report, the psychologist explained that the applicant participated in the program between July 2016 and May 2017. She also explained that the program is a custody based therapy program for men who have sexually abused adults and/or children (at [3]-[4]) and described the applicant’s overall participation in the program as “positive” (at [13] and [61]). In her report, the psychologist reached the view that the applicant’s composite assessment placed him in the moderate–low risk category compared to other male sexual offenders and pointed to his most salient risk factors.
27 Notwithstanding the Minister’s acceptance of this expert opinion and general statements that he had considered all relevant matters and all of the evidence, nonetheless the inference that the Minister overlooked the further information provided in the psychologist’s report and the letter at Attachment R indicating that the applicant had commenced and completed the CORE Moderate program is compelling and established on the balance of probabilities.
28 First, the Minister did not refer to the updated information that the applicant had already completed the CORE Moderate program. While his reasons noted at [56] that the psychologist’s report was prepared by a psychologist from that program, the Minister found at [63] of his reasons that the applicant had not yet been placed in the program:
63. I note that Mr SABADO submits that he has placed a number of referrals to the Sex Offender program, one in 2012 and one in 2014, which is prepared to attend but is still awaiting placement. Mr Sabado submits that the CORE Moderate Program being offered in custody is also available in the community and he has requested to be able to complete the program as part of his parole conditions. He states that his family is also making arrangements for him to attend a similar program which is offered by private clinicians once he is released from prison.
(emphasis added)
29 Secondly, it is plain that the information at [63] of the Minister’s reasons was based upon the letter from the applicant on 18 March 2016 apparently to the Parole Board with respect to his parole review and release recommendations. That letter was attached to the applicant’s submission to the Department dated 9 June 2016 and therefore before he commenced the CORE Moderate program in July 2016. In the letter the applicant stated relevantly that:
You have informed me on, 24 February 2016, that because I have not completed a custody-based Sex Offender Program, you will not be recommending my release on 11 June 2016 (my EPRD).
…
I understand my requirements to complete the Core Moderate Program. I have inquired and requested within the first twelve months of my custodial sentence to get assessed for the necessity to complete the program and each twelve month period afterwards.
…
On the 17th November 2015, I was informed and found suitable to complete the program, which is six months from EPRD. From 17th of November 2015 until now no offer of placement has been established.
In addition to the Core Moderate Program being offered in custody it is also available in the community, as per response to the IDC (Inmate Development Committee)… See attached.
With my understanding of my assessment of low-med, Core Moderate, I am requesting to complete the program as part of my Parole conditions.
In addition to the program being offered by DCS in the community, I am aware that it is also being offered by private clinicians, Lennings Seidler Collins, in Sydney. My family is making contact with ‘LSC’ to arrange assessment and availability for the program outside.
…
I hope you look favourably on my request for you to reconsider your recommendation to the State Parole Authority Review Board and recommend my release with the understanding that I will complete the Core Moderate Program as part of my Parole conditions in the community.
30 The applicant also attached to his submission of 9 June 2016, a consent to participate in the CORE Moderate treatment program for sexual offenders signed by him on 14 June 2016. That consent set out details of the treatment program and explained that the program is of approximately 6 to 8 months in duration with two group sessions per week and occasional individual therapy. It also explained that the program “is designed to assist me change the elements that lead to my sexual offending… and to develop skills to enable me to lead a more satisfying lifestyle.” As such, with respect, the Minister’s submission that there was no detail about the program undertaken by the applicant contained in the applicant’s response to the procedural fairness letter overlooks the detailed information contained in that consent, as well as in the psychologist’s report.
31 Thirdly, it is difficult to imagine that if the Minister had appreciated that the applicant had completed a lengthy program specifically addressing his offending behaviour that reference would not have been made to that program in the Minister’s consideration in particular of the risk that the applicant posed to the Australian community. This is particularly so where, as earlier explained, the Minister set out in detail the applicant’s completion of vocational and therapeutic courses and participation in religious studies. Yet none of those vocational, therapeutic or spiritual courses appear to have been directed specifically towards addressing the applicant’s offending behaviour.
32 In the fourth place, the Department did not in the body of its submission to the Minister direct his attention to Attachment R. It is referred to only in the index to the attachments attached to the submission. Furthermore, while the Department summarised the opinion expressed by the psychologist in her report and noted that she was from the CORE Moderate program in the body of its submission to the Minister at [34]-[36] and [39], the Department did not refer to the fact that information for the report had been collated from the applicant’s participation in, and completion of, the CORE Moderate program. To the contrary, the Ministerial submission makes the same mistake as that made in the Minister’s reasons. It advises the Minister that the applicant is prepared to attend what is described as “the Sex Offender program” and is still awaiting placement but that the applicant has submitted that he has requested to be able to complete the CORE Moderate program as part of his parole conditions (at [40]). That the error is replicated in the Minister’s reasons is not surprising as the Minister adopted without amendment, the draft reasons apparently prepared by the Department and attached to the Ministerial submission.
33 It follows from these considerations that there is a compelling, if not irresistible, inference that the Minister overlooked the fact that the applicant had completed the CORE Moderate program and made his decision instead on the basis that the applicant was still awaiting placement in the program.
34 Applying the authorities earlier referred to, that error is a jurisdictional one. The Minister overlooked a substantial, clearly articulated argument advanced by the applicant as a reason why the cancellation decision should be revoked. In contrast, for example, to the Minister’s position in Moiaha, the Minister did not at any point refer to the representation and instead made a finding which demonstrated that he had overlooked it. Further, the fact that the applicant was not only prepared to attend a lengthy program specifically addressing the risk that he might reoffend, but had in fact completed the program was material to assessing the risk of harm which the applicant posed to the Australian community and, if accepted, the reason could have been dispositive of the decision. It follows that the application for judicial review must be allowed.
35 Given the conclusion which I have reached, it is strictly unnecessary for me to address the remaining grounds of the application or an issue which arose at the hearing of the application. However, for the sake of completeness I note the following matters.
3.2.1 The alleged error in relation to the applicant’s employment history in Australia
36 First, the applicant challenged as unreasonable or irrational the Minister’s finding at [18] that “Australia has a low tolerance of criminal conduct for people, such as Mr SABADO, who have been participating in, and contributing to, the community for only a short period.” That statement was apparently based on the finding at [16] that the applicant had spent (only) four years contributing to the community through employment which in turn reflects the information given to the Minister in the Ministerial submission at [25]. However, the applicant explained at the hearing in this Court that this finding was wrong as he had in fact engaged in employment in Australia since 1997. The applicant in this regard considered that the error arose by reason of him having misunderstood a question asked in the Personal Details Form submitted by him in support of his request for revocation of the mandatory visa cancellation. The relevant part of that form was as follows:
YOUR EMPLOYMENT HISTORY IN AUSTRALIA
(List current or most recent employment first)
37 A table was inserted below the request for this information which left space for up to four rows of detail regarding the applicant’s employment history, including the period for which he was employed in each position.
38 The applicant answered this request for information on the basis that it sought information only about his most recent or current employment instead of requiring that he list the most recent or current employment first, followed by details of previous employment in Australia. As a result of that misunderstanding, the applicant gave details in the form only about his work as a handyman and a chemical compounder between 2007 and 2010. While the misunderstanding was unfortunate, it did not arise from the form itself which gave clear instructions.
39 These matters notwithstanding, it is apparent that the applicant did in fact give further information about his employment history which indicated that the employment history provided in the form was not complete. Specifically he explained in his submission in support of his application for revocation of the cancellation decision that he had “continued working in the hospitality industry, and gained plenty of work experiences. I have become a team leader, restaurant manager, an employee trainer, as well as, a chemical compounder from different employment…” The statements in the Ministerial submission at [25] and the Minister’s reasons at [16] and [18] make no reference to this further information about the applicant’s employment history to the extent that the submission refers to employment beyond that identified in the revocation form. Ultimately, however, in view of the finding that I have already made it is not necessary to decide whether or not this error was jurisdictional or merely an error of fact which is not reviewable by this Court. Alternatively, it is possible that in the absence of further details such as the applicant’s dates of employment and employer, the further information was regarded as not material.
3.2.2 Alleged breach of procedural fairness
40 Secondly, the applicant challenged the Minister’s decision on the basis that there had been a breach of procedural fairness because he was denied an opportunity to seek merits review of the Minister’s decision in the AAT. However, as the Minister submitted, there could be no breach of procedural fairness because the Act itself precluded access to the AAT by the applicant. In this regard, it will be recalled that the applicant’s visa was cancelled under subs 501(3A) of the Act. By virtue of subs 501CA(1), a cancellation decision made under subs 501(3A) may be revoked by the Minister under subs 501CA(4) where the person makes representations and relevantly where the Minister is satisfied that there is another reason (i.e. other than because the person satisfies the character test) as to why the cancellation decision should be revoked. Subsection 501CA(7) provides that “[a] decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7” of the Act. Parts 5 and 7 make provision for merits review of decisions by the AAT. As the Minister submitted, it is, therefore, clear that subs 501CA(7) excludes the possibility that the applicant could have sought merits review in the AAT given that the decision was made personally by the Minister: cf subs 500(1)(ba) of the Act with respect to decisions by a delegate.
3.2.3 A further issue which arose at the hearing
41 Finally, I raised in argument at the hearing a concern that the Minister at [73] referred to “a likelihood” that the applicant will reoffend “albeit a low likelihood”, given that the evidence did not seem to rise anywhere near the level where it was probable (i.e. that there was greater than a 50% probability) that the applicant would reoffend. However, I accept the Minister’s submission that fairly read as a whole, the Minister was not intending to use the word “likelihood” in the sense of more probable than not, but rather used that word somewhat loosely to refer to the “possibility” that the applicant might reoffend which is the language used at [80] of the Minister’s reasons. In this regard, while accuracy in expression is always preferable, it is well-established that “… a court should not be ‘concerned with looseness in the language… nor with unhappy phrasing’ of the reasons of administrative decision-maker… The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) (quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (the Court) with approval). As their Honours continued in Wu Shan Liang:
These propositions are well-settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
42 For the reasons set out above, the Minister’s decision must be quashed and the request for a revocation of the cancellation decision remitted for determination according to law. The Minister is to pay the applicant’s legal costs as agreed or assessed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
