FEDERAL COURT OF AUSTRALIA

Hua v Minister for Home Affairs [2019] FCA 94

ORDERS

THE COURT ORDERS THAT:

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

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

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    The applicant arrived in Australia from Vietnam in 1987 when he was 16 years old. In 1989 he was convicted of armed robbery and thereafter made regular appearances in the Magistrates and County Courts, with convictions for theft, burglary, assault, trafficking heroin and the handling of stolen goods, to name but a few. On 30 July 2014, he was convicted in the County Court of Victoria of arson, reckless conduct endangering life, making threats to kill, recklessly causing injury, intentionally destroying property, theft and cultivation of cannabis. He was sentenced to a cumulative total of three years and six months imprisonment. On 4 January 2016, the applicant’s Class BB Subclass 155 Five Year Resident Return visa was cancelled (the “Cancellation Decision”) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”) because the applicant did not pass the “character test” in s 501(6). That failure is not in dispute.

2    Pursuant to s 501CA(3) of the Act, the applicant was invited to make representations about whether the Cancellation Decision should be revoked pursuant to s 501CA(4), and submissions were received from him and considered by the respondent. Nonetheless, on 28 February 2018, the Assistant Minister for Home Affairs (the “Minister”) decided not to revoke that Cancellation Decision. The applicant now seeks judicial review of that decision.

Applicable Legislation

3    Sections 501(3A), (6) and (7) relevantly provide:

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

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

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

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

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

…

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7));

…

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

4    Section 501CA provides:

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

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

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

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

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

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

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

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

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

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

Background

5    On 5 November 2013, the applicant carried out what the sentencing judge in the County Court described as an “extreme and somewhat callous act” which was “inherently dangerous”. Earlier, on 21 October 2013, he had gone to the home of his wife and demanded cash, a bank card and a mobile phone. When these were not produced he threatened to “burn the house down with her in it”. The police were called to intervene. Then, on 5 November 2013, the applicant and his wife, who was at the time pregnant, were arguing at home when the wife asked their son to call the police. The applicant took a large knife from the kitchen and said “if you dare call the police I’ll kill you and burn you alive”. The applicant then poured petrol throughout the home which he then lit. The wife asked the applicant to save one son (who has Down syndrome) before running to a bedroom to save their daughters, aged five and three. The wife and daughters could not escape as their bedroom window was covered with external bars. The house was burning. They were trapped. One son pleaded with the applicant to help but he made no attempt to do so. Thankfully, the fire brigade rescued the wife and the daughters. The applicant and one son suffered burns. The wife required treatment for smoke inhalation. It was accepted that the applicant’s poor mental health (he was a diagnosed schizophrenic) contributed to his offending.

The Minister’s Decision

6    As the alleged errors of law relied upon by the applicant are narrowly confined, it is unnecessary for me to summarise the Minister’s decision in any detail. For the purposes of determining whether there was “another reason why” the Cancellation Decision should be revoked for the purposes of s 501CA(4)(b)(ii), the Minister:

(1)    had regard to the submissions made by the applicant and on his behalf;

(2)    had regard to the best interests of the applicant’s children, including the son with Down syndrome, and found that their needs supported revocation of the Cancellation Decision. In the face of all that had happened, his wife and children did not want the applicant to be deported;

(3)    considered that the expectations of the Australian community were that the applicant should be denied a visa;

(4)    decided that his wife and family would experience “emotional, financial and practical hardship” if the applicant were to be deported to Vietnam. It was observed that one son in particular had become very depressed following the making of the Cancellation Decision and had burnt the family home down;

(5)    took into account the impediments the applicant would face in Vietnam, including the emotional hardship of being away from his family;

(6)    considered that the applicant’s criminal history was very serious;

(7)    analysed the risk of harm to the Australian community if the applicant were to remain in Australia. In that respect the following paragraphs in the reasons for decision are important to the disposition of this proceeding. At [54], the Minister said:

I have considered whether [the applicant] poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps [the applicant] has undertaken to reform and address his behaviour. I have also taken into account [the applicant’s] overall conduct in the custodial and non-custodial environment, and his insight into the offending.

At [60], the Minister said:

I consider that remorse is a salient part of the rehabilitation process. While [the applicant] has not expressed remorse directly to the Department, I have had regard to the submissions from [the applicant’s wife] and his agent that he regrets his actions and the hurt he has caused his family. I have also considered the sentencing remarks of 30 July 2014 in which the judge noted that [the applicant] had expressed some remorse and that schizophrenia ‘distorts a person’s capacity to express appropriate remorse’.

At [65], the Minister said:

I have weighed these submissions against [the applicant’s] long history of drug abuse and offending, and his recent conduct in the custodial environment, where I note he assaulted a fellow detainee by punching him in the side of his face after an argument about computer use. His agent submits that [the applicant] was under ‘a lot of stress and anxiety due to the cancellation of his visa and his unknown future’ and was ‘goaded’ by the victim. This assault causes me hesitation in accepting submissions that [the applicant] has learned to deal with anger, and indicate an ongoing inability to manage such emotions in a pro-social way. I consider that [the applicant] could expect to experience stress in the community, particularly in raising his six minor children, dealing with Johnny’s special needs, and rebuilding the family home. The before me does not satisfy me that [the applicant] can handle such stress without resorting to drugs and possibly violence.

(8)    concluded at [69] that there was an “ongoing likelihood” that the applicant would reoffend and that, if he did so “in a similar manner”, it could result in “physical and/or psychological harm” to the Australian community.

7    After weighing all of these considerations, the Minister decided that he was not satisfied that there was “another reason” to revoke the Cancellation Decision.

Grounds of Review

8    There were three grounds of review in the amended originating application, but only the second and third were pressed before me. They were in the following terms:

2.    The Assistant Minister erred by misapprehending the evidence and/or failing to take into account a relevant consideration.

Particulars

1.    In considering [the applicant’s] likelihood of reoffending, the Assistant Minister identified rehabilitation as a relevant consideration: at [60]. The Assistant Minister expressed the view that “remorse is a salient part of the rehabilitation process”: at [60].

2.    The Assistant Minister:

a.    noted that [the applicant] had “not expressed remorse directly to the Department”; and

b.    noted that [the applicant’s wife and the applicant’s] agent had both submitted [the applicant] regretted his actions and the hurt he had caused his family: at [60].

3.    In fact, [the applicant] had made direct expressions of remorse in his statutory declaration of September 2017. The Assistant Minister failed to take these [direct] expressions of remorse into account.

4.    It can comfortably be inferred from the Assistant Minister’s statement that “[the applicant] has not expressed remorse directly to the Department” that the Assistant Minister was unaware of, or had no regard to, [the applicant’s] statutory declaration (at least to this extent).

5.    The Assistant Minister failed to take into account a relevant consideration, being [the applicant’s] expressions of remorse and/or misapprehended the evidence before him, being his conclusion that [the applicant] had made no direct expression of remorse when, in fact, [the applicant] had done so. Consequently, the Assistant Minister erred.

3.    The Minister erred by failing to take into account a relevant consideration.

Particulars

1.    In considering [the applicant’s] likelihood of reoffending, the Assistant Minister took into account [the applicant’s] conduct in custodial settings, including immigration detention. At [65], the Assistant Minister took into account an assault by [the applicant] against another detainee.

2.    Despite having identified [the applicant’s] conduct in custodial settings as a relevant consideration bearing on the likelihood that [the applicant] would reoffend, the Assistant Minister did not have regard to the contents of an undated [report] from Prison Officer K Leggett of Hopkins Correctional Centre: see CB76.

3.    PO Leggett stated that [the applicant] had no incidents recorded against him while in custody, did not associate with known trouble makers and was very quiet. PO Leggett further stated that [the applicant] was polite and courteous to staff, fulfilled any requests that staff make of him and was of “no management concerns at all”.

4.    The Leggett Report was capable of bearing on a consideration identified by the Assistant Minister to be relevant to the question of [the applicant’s] likelihood of reoffending and ought properly to have been taken into account by the Assistant Minister in reaching his conclusions on that question. By failing to take it into account, the Assistant Minister erred.

The Contentions of the Parties

9    Ms Kelly of counsel, who appeared for the applicant, relied upon the following three propositions:

(1)    First, the factors to which the Minister must have regard in s 501CA(4) are unconfined, subject to any which, by implication, must be considered: BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82 at [30].

(2)    Secondly, whether or not the risk of harm is a consideration which must be taken into account, if the Minister considers it in a way which is illogical or unreasonable, his decision will be invalid: Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [30].

(3)    Thirdly, a misunderstanding or misconstruing of a claim which could be dispositive of a decision can constitute jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[114].

10    Turning to consider the first ground of review, the applicant submitted that the Minister had misunderstood an important claim when he stated at [60] of his reasons for decision that the applicant had not “expressed remorse directly to the Department”. In fact, the applicant submitted, he had done so. On 4 August 2017, the applicant had received a letter from the Department of Immigration and Border Protection (the “Department”), inviting him to comment on, amongst other things, a “Client Incident report” dated 31 May 2017. The incident was described by the Minister in his reasons at [65], supra. On 20 October 2017, Refugee & Immigration Legal Centre Inc (“Refugee Legal”) responded on the applicant’s behalf and stated that the applicant felt “deep remorse for the hurt he has caused his family”. The letter attached a statutory declaration made by the applicant which contained the following paragraph:

Since I have been in prison, I have thought very hard about what happened and I have learned strategies for dealing with my anger problem. I am very sorry for breaking the Australia law; I have felt shame, guilty and remorse to now. I promise that I will not future commit a criminal offence again in Australia. I am hoping if the Minister would consideration of my circumstances during the time of my offences that I was not in my right state of mind.

(Errors in original)

11    The applicant submitted that the Minister’s misunderstanding concerned an important issue which bore upon the outcome of the decision-making process. At [54] of the reasons for decision, the Minister stated that he had given consideration to the steps undertaken by the applicant to reform; at [60] he gave consideration to the issue of the applicant’s remorse, described by the Minister as a “salient” part of the rehabilitation process; and then that issue, along with others, was “weighed” by the Minister at [65] of his reasons against factors in favour of the continued cancellation of the visa, including the risk of reoffending. It was submitted that if the Minister had known that the applicant had been directly remorseful, the various considerations for and against the applicant, might have been weighed against each other differently.

12    As part of this submission, I was initially asked to infer that the Minister had not in fact read the attachments to the Departmental submission sent to him, probably on 14 February 2018. Those attachments included the letter from Refugee Legal and the statutory declaration. Both documents are referred to in the Departmental submission, which the applicant accepts the Minister had read. Strong commonality of language used in both the Departmental submission and in the reasons for decision, it was said, grounded the inference that the attachments were not read, together with the suggested mistake the Minister had made in describing the applicant’s remorse. A failure to read the material was said to explain the mistake.

13    In her reply, Ms Kelly submitted that I did not need to find that the Minister had not read the attachments for her client to succeed. It was sufficient to find that the Minister had misunderstood critical evidence. I agree. If pressed, I would not have inferred that the Minister had not read the attachments to the Departmental submission. Commonality of language would not have grounded such an inference; presumably, and perhaps unremarkably, both the Departmental submission and a draft of the reasons for decision were written by Departmental officers: cf Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352. As to the misconstruction of the evidence, for the reasons given below, I am not satisfied that the Minister had not properly understood the evidence concerning the applicant’s remorse. There was no direct evidence otherwise before me that supported the contention that the attachments had not been read or considered.

14    Mr Tran of counsel, who appeared for the Minister, essentially made two submissions concerning this ground of review. They were as follows:

(1)    First, that the Minister’s statement about direct remorse should be read as a reference to the fact that in the applicant’s submission to the Minister for the purposes of s 501CA(4)(a) there was no expression of remorse.

(2)    Secondly, and in any event, if there was a misunderstanding, it was of no moment. The Minister was seized of the fact of the applicant’s remorse which he took into account, and that was all that really mattered. It was thus a mere factual error made within jurisdiction: cf SZKRT at [97] – [98]. It was, to use the language of Mason J (as his Honour then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40, a factor “so insignificant that the failure to take it into account could not have materially affected the decision”. It was the issue of remorse in and of itself which was the “salient” consideration – not the lack of direct remorse to the Department.

15    The second ground of review concerned the Minister’s failure to refer in his reasons for decision to a letter, said to have been written prior to 26 February 2016, by Prison Officer K Leggett of the Hopkins Correctional Centre (the “Leggett Letter”). The Leggett Letter was in these terms:

To whom it may concern,

My name is prison officer K Leggett and I am the case manager of prisoner [the applicant].

I am sending this behavioural report to you in regards to the above mentioned prisoner. [The applicant] has been at Hopkins Correctional Centre since May of 2015.

His behaviour while he has been here at HCC has seen no incidents recorded against him.

[The applicant] does not associate with known trouble makers within the prison and is very quiet.

He is polite and courteous to staff, fulfils any requests that staff make of him and is of no management concerns at all.

In the applicant’s submission, because the Minister did not refer to this letter in his reasons for decision, it should be inferred that he had not taken it into account. And because the Minister made an enquiry into the issue of the risk of harm to the Australian community as an issue to be considered, in particular the applicant’s “recent conduct in the custodial environment” (see [65] of the Minister’s reasons), it was an error of law to fail to consider the Leggett Letter. As I understood the submission, it was not contended that this was a case of the Minister acting in a legally unreasonable way. Rather, like the first ground of review, it was submitted that if it had been taken into account it could have affected the outcome. It therefore constituted jurisdictional error. The error was not cured, it was said, by the general reference at [54] of the reasons that the Minister had taken into account the applicant’s “overall conduct”.

16    The Minister submitted that I should not infer that the Leggett Letter was overlooked or was not taken into consideration. As is well-established in cases of this kind, the Minister was not obliged to refer to each and every piece of evidence before him: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2013) 236 FCR 593 at [46]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [34]. Nor, the Minister submitted, does an applicant prove that evidence has been overlooked merely by showing it has not been referred to in reasons for decision. He referred to Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [35]. In any event, it was said, the Leggett Letter was inconsequential. It had, the Minister contended, been overtaken by the incident described at [65] of the reasons for decision. That incident took place on 31 May 2017, nearly one and a half years after the writing of the Leggett Letter.

Disposition

17    Both grounds of review are directed at a determination of what the law obliges the Minister to do when assessing, for the purposes of s 501CA(4)(b)(ii), whether there is “another reason why the original decision should be revoked”. In particular, both grounds direct attention to what the law obliges the Minister to do when considering submissions received in accordance with a statutory invitation for representations made pursuant to s 501CA(3)(b). On one view, the law remains unsettled.

18    In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203, Robertson J said at [56]:

As stated by the Full Court in Price v Elder [2000] FCA 133; 97 FCR 218 at [13], where a discretion is unconfined by the terms of the statute, a court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40. While I accept that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, I do not accept that any particular statement in the representations should be so characterised.

This observation was approved by a Full Court of this Court comprising Besanko, Barker and Bromwich JJ in Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [41].

19    In contrast, in Hay v Minister for Home Affairs [2018] FCAFC 149, Colvin J (with whom White and Moshinsky JJ agreed), having considered Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, expressed the test, perhaps differently, at [11] as follows:

In reaching the same result in Viane, I held at [66] that ‘as the making of representations about the revocation of the original decision is a condition that must be met before the statutory power to revoke is enlivened, there is a statutory obligation on the part of the Minister to consider whether the required state of satisfaction is met by reference to the material presented in the representations’. Therefore, ‘a state of satisfaction formed without considering each of the matters that are raised in the representations in a manner which identified them as significant would be a breach of the statutory requirement to consider the representations’: at [72]. It would be a failure to conform to a part of the statute that must be met in order for there to be a valid exercise of power: at [75].

20    Colvin J went on to consider the decision of the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 and the proposition that material non-compliance with a statutory precondition amounts to jurisdictional error. His Honour observed at [12]:

The threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if compliance ‘could have made no difference to the decision that was made in the circumstances in which the decision was made’: [Hossain] at [30].

Colvin J then observed that it was unclear whether the obligation on the Minister for the purposes of s 501CA was only to have regard to representations made by an applicant in a general sense, or whether the Minister was obliged have regard to particular matters. His Honour said at [14]:

However, it is a question of statutory construction as to whether the precondition is met if the Minister has regard to the representations in a general sense or whether the Minister must have regard to particular matters raised in order to conform to the statute. If the latter, then the question arises whether the precondition that must be met is to the effect that the Minister must consider only ‘a substantial, clearly articulated argument’ or a ‘significant’ matter or each and every matter. Whatever the requirement, if the Minister’s state of satisfaction is formed without regard to particular matters that must be considered then there is a failure to comply with the statute. Further, Hossain makes clear that even if that requirement is not met, it is only if the failure is of a kind that meets the ‘threshold of materiality’ that the required state of satisfaction will not be formed in conformance with the statutory requirement with the consequence that there will be jurisdictional error.

21    Ultimately, it was not necessary for Colvin J finally to resolve the issue. More recently, in Smith v Minister for Home Affairs [2018] FCA 1594 at [61] Robertson J said:

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.

22    In Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216, Rares and Robertson JJ again noted the tension in the authorities and observed that, in any event, a decision-maker was not required to make findings of fact in relation to every claim or issue raised by an applicant. At [41], their Honours said:

In Buadromo, another s 501CA(4) case, the Full Court agreed at [41] with the observations in Goundar at [55]-[56], analysing the matter by reference to the language of mandatory relevant considerations. The Full Court said at [46] that a decision-maker was not required to make a finding of fact with respect to every claim made or issue raised by an applicant. A finding of fact may not be required if a claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality. In that case, the Full Court said at [58]-[60] that although the decision-maker did not make an express finding that Mr Buadromo will or will not find it impossible to obtain work in Fiji, the decision-maker addressed whether Mr Buadromo was likely to find employment in Fiji or sufficient employment in order to provide for his family. The decision-maker was not required, the Full Court held, to make a precise finding about Mr Buadromo’s prospects of obtaining employment in Fiji. The decision-maker addressed the issue, finding that Mr Buadromo had work skills which may help him gain employment in Fiji and expressly found that his children would suffer hardship were Mr Buadromo to be in Fiji rather than Australia.

After also observing that resort to the language of “proper, genuine and realistic consideration” is to be avoided where possible, the applicable test was expressed in the following way at [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: compare Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] per Perram J. Additional adjectives do not assist that analysis and indeed tend to distract from it by being “apt to encourage a slide into impermissible merit review”: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] citing Swift v SAS Trustee Corporation [2010] NSWCA 182; 6 ASTLR 339 at [45]. 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.

23    In many cases an obligation to take into account representations made as a whole, as against taking into account “a substantial, clearly articulated argument” or “a significant matter”, may, as a practical matter, amount to the same thing. As the Full Court observed in Maioha, it really is a case of evaluating whether the decision-maker has, as a matter of substance, had regard to the submissions put to him or her. For that purpose, there is no obligation for the Minister to record in his reasons for decision his consideration of each and every matter put to him by an applicant.

24    In relation to the first ground of review, there is an immediate difficulty: what did the Minister mean when he said that the applicant had “not expressed remorse directly to the Department”. There is real ambiguity in the use of the word “directly”. The evidence before me is as follows:

(1)    The Department made a submission to the Minister which contained a series of attachments which included both the letter sent by Refugee Legal on 20 October 2017 and the statutory declaration. Paragraphs [43] – [44] of that Departmental submission state as follows:

In a submission dated 20 October 2017 [the applicant’s] agent states ‘Since being incarcerated [the applicant] has voluntarily re-commenced his medication and has had regular appointment [sic] with a psychologist’. The agent further states that [the applicant] is deeply remorseful for hurting his family and ‘this has increased his commitment to maintain regular medication and cease his use of cannabis’ (Attachment O).

[The applicant’s] family believe that he has changed (Attachments C.7-C.10). [The applicant’s wife] states that he is remorseful and ‘I truly believe that he will not ever repeat any offences again’ (Attachment C.7). [The applicant’s] sisters submit that he has reflected on his actions, acknowledged his wrong-doing, and believe his family ‘can change & encourage him to become better & to be mentally healthier’ (Attachments C.8 & C.9). His friend … considers him no threat to the community (Attachment L.3).

(9)    The Minister’s reasons for decision state that the Minister considered “all evidence before [him] provided by, or on behalf of, or in relation to” the applicant.

(10)    At [12] of the reasons for decision, the Minister then states relevantly as follows:

In the representations/documents submitted by or on his behalf, [the applicant] has articulated reasons why the original decision should be revoked, which include:

…

‒ That he is remorseful, no longer addicted to heroin, and has ‘learned strategies for dealing with his anger’

…

25    In my view, the foregoing does not support the drawing of the inference that the Minister did not consider and take into account both the letter of 20 October 2017 and the statutory declaration, and their respective contents. In particular, [12] of the reasons for decision is a general finding about remorse which was based on the representations made to the Minister. In that respect, I note that [59] of the reasons is expressed as follows:

I have considered [the applicant’s] submission that he has learned strategies to deal with his anger and is now ‘free’ from his heroin addiction. I have also considered the submission from [the applicant’s] current agent that ‘Since being incarcerated [the applicant] has voluntarily re-commenced his medication and has had regular appointment [sic] with a psychologist’.

26    A source of the observation that the applicant has “learned strategies” to deal with his anger is, I find, the very paragraph of the statutory declaration which the applicant contends the Minister overlooked. Even though the same phrase appears in the Departmental submission, because I am not satisfied that the Minister read that and nothing else, I cannot be satisfied that the submission was the sole source for the use of that phrase. On balance, I infer that the phrase “learned strategies” was probably the product of a consideration of both that paragraph and the Departmental submission. There was certainly no direct evidence before me that the Minister had not read the statutory declaration. It follows that I am not satisfied that the Minister overlooked the evidence about remorse relied upon by the applicant.

27    How then is one to explain the sentence in [60] of the reasons for decision about direct remorse? On balance, and after some hesitation, I think it should be read as a reference to the contents of the applicant’s actual request for revocation of the Cancellation Decision made pursuant to s 501CA(4)(a) on 26 January 2016. That application does raise the issue of remorse but only, so far as I can tell, in the statutory declaration of the applicant’s wife which was an attachment to the request. The applicant himself did not express remorse. Using the language from Maioha, I am satisfied that, as a matter of substance, the Minister had regard to the representations put to him.

28    In any event, if I am wrong, I am nonetheless satisfied that if the Minister misunderstood this aspect of the applicant’s remorse, it was not a significant or material error. I find, that if the misunderstanding had been clarified, this could not have made a difference to the outcome. The Minister clearly understood that the applicant was remorseful, and took that into account for the purposes of s 501CA(4)(b)(ii). Notwithstanding the considerable force of the argument presented by Ms Kelly of counsel, the first ground of review is rejected. In my view, the Minister, as a matter of substance, had regard to and considered the representations put to him about the applicant’s remorse.

29    I now turn to consider the second ground of review. The applicable evidence is as follows:

(1)    the Leggett Letter was an attachment to the Departmental submission;

(2)    it was also expressly referred to in two other documents which were attachments, namely the applicant’s request for revocation dated 26 January 2016 and the letter from Refugee Legal dated 20 October 2017.

30    Because I am not prepared to infer that the Minister did not read the attachments to the Departmental submission, I am not satisfied that the Leggett Letter was overlooked by the Minister and never considered. I agree with the Minister’s submission that, inferentially, the Minister did not find the contents of the Leggett Letter, which expressed conclusions in very general terms and was significantly out of date (by approximately one and a half years), to be material and that is why its contents were not mentioned in the reasons for decision.

31    If I am wrong in the inference that I have drawn, I am otherwise satisfied that if the Leggett Letter was overlooked, this was an error made within jurisdiction. I do not find that the contents of that letter might have caused the Minister to reassess his findings concerning the risk that the applicant would reoffend. That is because the Leggett Letter was subsumed by the incident which had taken place much more recently in 2017. I thus agree with Mr Tran’s submission on this issue.

32    For these reasons, the application should be dismissed with costs.

Associate:

Dated:    12 February 2019