FEDERAL COURT OF AUSTRALIA

Freeman v Minister for Home Affairs [2019] FCA 408

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an application for review of a decision of the Minister for Home Affairs not to revoke a visa cancellation decision. The applicant's Class XB Subclass 200 Refugee visa was cancelled in November 2016 under s 501(3A) of the Migration Act 1958 (Cth) (Act) on the basis that at that time he was serving a sentence of imprisonment and because he had convictions for sexual offending against a child.

2    The applicant is a Liberian citizen who moved to Australia at the age of 17 in 2009 and has not left Australia since his arrival. The applicant has a partner, three children and two stepchildren, all of whom are Australian citizens.

3    In 2014, the applicant appeared before the Perth Magistrate's Court on a number of charges. He was convicted of various assaults of a public officer and given a suspended sentence and a supervision order. In the same year he was convicted in the District Court of Western Australia of two counts of sexually penetrating a child over 13 and under 16, for which he was given concurrent suspended sentences of 12 months imprisonment, with supervision and program participation orders.

4    The applicant breached various supervision orders and conditions of his suspended sentences, including the conditions of his suspended sentence for the sexual offending. In October 2016 he was sentenced for those breaches to 3 months imprisonment (concurrent). Other non-custodial sentences were imposed at the time for other convictions.

5    Shortly after he was imprisoned, a delegate of the Minister cancelled the applicant's visa on the basis he was satisfied that the applicant did not pass the character test as referred to in s 501(3A) of the Act. The delegate relied on s 501(6)(e) of the Act (conviction for a sexually based offence involving a child). The delegate also cancelled the visa on the basis that he was satisfied that the applicant was serving a sentence of imprisonment on a full time basis (s 501(3A)(b)).

6    The applicant was invited to make representations about revoking the delegate's decision to cancel the visa. The applicant was provided with a copy of Direction No 65, and it was explained to him that if the decision maker who decided whether or not to revoke the decision to cancel the visa was the Minister, the Minister was not bound by Direction No 65 but it provided a broad indication of the types of issues he would be likely to take into account.

7    On 30 December 2016 the applicant provided the relevant revocation request form to the Department.

8    By letters dated 8 June 2017 and 9 January 2018 the Department of Home Affairs (Department) provided information to the applicant, being sentencing remarks, a National Police Certificate, a notice of intention to consider cancellation of the applicant's visa and a Department Client Incident Report. The Department informed the applicant that those documents might be taken into account in deciding whether or not the decision to cancel his visa should be revoked. The Department invited comment on the documents.

9    The applicant provided submissions in support of his request that the decision be revoked. He also provided letters of support from members of his family, his partner and a local Member of the Legislative Assembly. Parts of the applicant's representations are detailed below.

10    On 18 June 2018 the Minister made a decision not to revoke the decision to cancel the applicant's visa. The applicant now seeks judicial review of that decision in this Court.

Representations made by the applicant

11    The applicant relies on representations made on various occasions. First, the applicant provided reasons for his request for revocation in formal request forms dated 21 December 2016. The reasons given were as follows:

I request for a revocation for my visa on the basis that I have no family support or any kind of support if I'm to return to Liberia. If I'm to be deported it will be detrimental to my family who live in Australia, my four-year-old [child], my partner, and I'm due to be a father again before the end of the year to twins. I left Liberia seven years ago for a better life away from poverty and war. I understand that I have broken the law, of which I take responsibility for my actions and I'm sorry for my behaviour. I kindly ask for a second chance to be there for my children and my family especially as Australia is now my home and I don't want to leave my family especially leaving my children without a father as I understand how difficult life can be growing up without a father.

12    In a Personal Circumstances Form also dated 21 December 2016, the applicant, in answering a question as to whether he has concerns or fears about what would happen to him on return to his country of citizenship, said as follows:

I left when I was 11 so to go back would mean going to somewhere where I have no family, no supports and somewhere I barely remember.

If I'm to return to Liberia I would not have any support there or anywhere to live and for work and I can't bear the thought of leaving my family in Australia.

13    Under the heading 'Any Other Information', the applicant said relevantly:

In 1992 there was a war in my country. During that time my Mum was bringing me and my siblings up alone. My country was very violent & there was domestic violence in my home that we all suffered. The times I spent with my father & step-mother were violent and I was severely mistreated. Going back would bring back many painful memories. For 9 years I was brought up by my brothers after Mum who was a refugee had to return to Ghana. This obviously brought on a lot of issues, not having my main parent/care giver which again is what I don't want my [child] to suffer. Going back to Africa would mean no financial stability, no supports, little opportunities, lots of poverty & violence. Going back means people think you have returned with money, therefore this brings threats & violence.

I also have twins on the way due end of December 2018 with [redacted] who is an Australian citizen.

14    Under the heading 'Please describe the impact the cancellation of your visa would have or has had on the children listed', the applicant wrote:

If my [child] were to lose me, I feel he would suffer long term effects, possibly abandonment issues etc. I suffered not having my dad in my life from a young age and do not want my [child] to suffer the same issues that result from this. It would also mean contact with [the stepsiblings] would be impacted which means he would lose family connections.

15    In a letter of 23 December 2016 the applicant similarly writes:

If I was to be deported back to West Africa I have no family support what so ever, they are all living in Perth.

16    In a letter of 21 January 2017 the applicant made further representations, and in particular addressed Australian's non-refoulement obligations under the Refugees Convention, the International Covenant on Civil and Political Rights (ICCPR) and the Committee Against Torture (CAT), saying that:

I am pleading with you … to please consider my refugee status in your decision. My life will be in great jeopardy if I was to be sent back to Liberia. I am positive that a person in your position has access to numerous expert reports compiled by ASIO, CIA, MI6, UN and extra. Liberia hasn't gotten any better since I left. I not only fear for my life but what this would do to my kids and family. The anxiety that would be associated with this.

…

As I have mentioned, I am a genuine refugee and I do believe that you have access to my refugee status. All my childhood was filled with torture, horror, trials and tribulations.

17    More generally and in the same letter, the applicant said:

I have five young kids. [redacted] is five years. Two twin [children] [redacted] who have just turned 1 yrs. I am also stepfather to [redacted] and [redacted]. I have a lot of love for my family and my partner and my absence from them has changed me in a lot of positive ways … I wish so much that I was out there for them, and take up my role as father and partner in their lives. Having lost my father myself as a young age, I understand the hardship of growing up with a single parent. It was hard for me and I wish that I will remain in Australia to look after them.

18    Under the heading 'Best interests of the Children,' the applicant wrote:

My absence in their lives would not only adversely affect them but exacerbate more pressure on their mother. When I was [in detention] I received three visits weekly from my family and I received constant visits from my Partner and kids while I was in prison … Can you please take positive consideration of my kids' welfare in your decision.

19    The applicant also stated:

I have regular contact with my kids. Every week I talk with my kids using Skype and I am happy with the progress I am making. I hope to be with them soon. I plead with you to keep me close to my kids and family.

20    In a letter dated 6 July 2017 the applicant made representations about the reasons for the offending that had led to his imprisonment. In particular, he referred to the sentencing remarks of the District Court of Western Australia of 19 December 2014 when he was convicted of the relevant sexual offences. The applicant maintained that he was innocent of the offence, but accepted that he was found to be guilty by the jury and accepted that he was given a 12 month suspended sentence with certain conditions. The applicant then referred to the circumstances of the breach of the suspended sentence conditions. He said as follows:

About a year and a half after I was sentenced, I breached my suspended sentence conditions by missing a few reporting days and not showing up in court on those occasions. This was because I lost my job due to not showing up on time - with no income, I was sleeping rough between friends' houses, with no permanent home address. I couldn't ask for my name to be listed down on their lease as I was not paying rent and I could not inform my corrections officer that my address had changed. Because of this, my letters were sent to addresses that I was not staying at, and sometimes I received them after my court date had already passed.

On 19 October 2016 I was convicted of breaching my suspended sentence and my intensive supervision order and received a three-month sentence of imprisonment. While I was in prison, my visa was cancelled.

21    In a letter to the Department dated 23 December 2017 the applicant made further representations. He said, relevantly:

As I'm the father of three Australian kids, … as well as my 2 [stepchildren] …, It is my fervent hope and prayer to join my beautiful young family …, and to see my [children and stepchildren] grow up, be part of their upbringing and contribute meaningfully to their wellbeing in Australia. Like every other kid, my kids need their father around to support, protect and provide the fatherly love and care that are essential to every child.

With no Immediate family members back home in Liberia, no home, lack of proper security, basis social services and opportunities, going back to Liberia to stay will be like committing suicide. All my Immediate family members reside in Australia including my Biological mother and step father, my brothers and sister, my nieces, my nephews, my partner, 2 [stepchildren] and my 3 [children].

…

I'm so afraid for my life because the same rebels who attacked our home and killed my father are still there and some still remain occupying key positions in the security forces in Liberia.

Liberia is deteriorating and it's the 4th poorest country in Africa and even though there is a little bit of law and order the security situation in my country is unsafe because of limited number of police and army personells who are logistically disadvantaged in performing their duties and criminal activities such as armed robbery, Theft and secret killings have increased significantly due to high youth unemployment and ex combatants who are using their rebel skills to make quick money.

The Minister's decision

22    The Minister's decision commenced at [7] with a statement that he had considered the representations made by the applicant and the documents he submitted in support of his representations.

23    The Minister noted that as at 29 November 2016, when the applicant's visa was cancelled, he was serving a sentence of imprisonment.

24    The Minister referred to the National Police Certificate that indicated that on 19 December 2014 the applicant was convicted of two counts of sexually penetrating a child over 13 and under 16 years, and referred to s 501(6)(e) (sexually based offences involving a child).

25    The Minister then stated that the information in the National Police Certificate was not challenged and accordingly he was not satisfied that the applicant passed the character test, with the result that s 501CA(4)(b)(i) was not met, and that it was therefore necessary to consider whether he was satisfied that there is another reason why the original decision should be revoked.

26    The Minister then provided a summary of the representations:

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

-    He first arrived in Australia in August 2009 at the age of 17 and has resided here for over eight years.

-    He has two infant twin [children] born from his current relationship, as well as two [stepchildren] from that relationship and a five year old [child] from a previous relationship. He wishes to remain in Australia to provide essential parental support and raise his family. These children need his presence as they grow up.

-    His other family members in Australia include his mother, stepfather, two brothers, sister, step brother, four nieces and one nephew.

-    He has expressed his remorse and regret for his actions, as well as undertaking steps to reform his character and improve his personality. Family members consider him rehabilitated.

-    Whilst incarcerated, he has participated in rehabilitation programs to overcome his substance abuse as well as undertaking training courses.

-    He has no immediate family back in Liberia and no support in the form of accommodation and employment there; he is also concerned that he will have to leave his family behind.

-    He fears returning to Liberia because of the presence of the same rebel militia who attacked his family's home, beat them unmercifully and killed his father; some of them may also occupy key positions in the security forces in Liberia who could harm or even kill him.

27    The Minister then discussed the best interests of the applicant's minor children:

14.    I note Mr FREEMAN has two Australian citizen twin [children] with his current partner, [redacted], namely [redacted] and [redacted], both born on [redacted]. I also note Mr FREEMAN states he received frequent visits from his partner and children whilst in prison and detention, and that his children used to cry each time they left the detention centre and this took a huge emotional toll on him and them. I note Mr FREEMAN now talks to them every week, using Skype.

15.    I have given regard to letters of support from [his partner] confirming that she visited Mr FREEMAN with their twin [children] twice a week whilst he was [in detention] before he was transferred to Christmas Island. I note [his partner] indicates that she is really struggling emotionally, financially and physically with raising all four children on her own and she is suffering from anxiety and depression.

16.    I find that it is in the best interests of Mr FREEMAN's twin [children] [redacted] that I revoke the original decision to cancel Mr FREEMAN's visa to allow them to continue having a direct and personal relationship with their father and for Mr FREEMAN to continue providing them with emotional, financial and practical support and care.

28    The Minister also concluded that it was in the best interests of the applicant's stepchildren that the visa cancellation be revoked to allow them to continue to have a direct and personal relationship with their stepfather. The Minister made a similar finding as to the applicant's first child, who lives with the applicant's former partner, but accorded it less weight on the basis that the applicant did not have current contact with the child and there were doubts as to the prospect of re-establishing a relationship with the child.

29    The Minister then addressed the expectations of the Australian community:

24.    I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the original decision to cancel the visa of such a person. Mr FREEMAN has breached this trust as he has been found guilty of committing a sexual offence against a child, as well as other criminal offences.

25.    Given the serious nature of these offences, I conclude that the Australian community would expect that Mr FREEMAN should not hold a visa.

30    There was then a discussion of Australia's international non-refoulement obligations:

26.    As part of his representations seeking revocation of the original decision to cancel his visa, Mr FREEMAN submits that he will face harm if returned to Liberia due to being afraid for his life because, he states, the same rebel militia who attacked their home, beat them unmercifully and killed their father is still present in Liberia and some of them may occupy key positions in the security forces in Liberia and could harm or even kill him. These fears are shared by Mr FREEMAN's brothers, [redacted], in their letters of support. Mr FREEMAN also states that the peace in Liberia is fragile, criminal activity is on the rise, people are going missing every day and the possibility of another outbreak of disease is high.

27.    I am aware that my Department's practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, I have given a direction under s499 of the Act (Direction 75) requiring that decision makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.

28.    I consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75.

29.    In those circumstances, I consider it unnecessary to determine whether non-refoulement obligations are owed in respect of Mr FREEMAN for the purposes of the present decision as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.

30.    I have also considered and taken into account the possibility that it may be the case at that time that a Minister personally considers Mr FREEMAN's Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of Mr FREEMAN. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.

31.    I have also considered Mr FREEMAN's claims of harm upon return to Liberia outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether Mr FREEMAN's claims are such as to engage non-refoulement obligations, Mr FREEMAN would face hardship arising from the presence of rebel militia in Liberia were he to return to Liberia.

31    The Minister then considered the strength, nature and duration of the applicant's ties to Australia, and stated as follows:

33.    Mr FREEMAN has resided in Australia since 5 August 2009, having arrived at the age of 17 years. I accept that this is a substantial period during which he is likely to have formed some personal ties to Australia, though I have given less weight to this consideration as I note that his formative years were largely not spent here, and that Mr FREEMAN started to offend in late 2010 at the age of 18 years, just over a year after arriving in Australia. I find the Australian community has little tolerance for persons who begin criminal offending within a comparatively short time of arriving in Australia.

34.    Mr FREEMAN has family and social ties to Australia, in that his mother, stepfather, two brothers and one sister reside in Australia. I note letters of support from Mr FREEMAN's brothers, [redacted], and that they visited him in prison and detention, when Mr FREEMAN apologised to their parents for placing himself in such a situation. Family members will help him with accommodation and employment upon his release. They are deeply worried about their brother living in war-ravaged Liberia, given economic and security concerns there, and about Mr FREEMAN being unable to support his young family or see his twin [children] growing up if he is returned to Liberia. I note these views are echoed in letters of support supplied by Mr FREEMAN's mother and stepfather.

35.    I note Mr FREEMAN reached Year 11 and his resume indicates that he worked as a sample preparer, construction labourer and customer assistant between March 2011 and May 2016.

…

37.    I have considered the effect of non-revocation upon Mr FREEMAN's immediate family (including his partner, three [children], two [stepchildren], stepbrother and nephews/nieces) in Australia and accept that those persons would experience emotional and possibly financial and practical hardship. I note the considerable hardship that [his partner] will continue to experience if Mr FREEMAN is required to leave Australia.

38.    I find that Mr FREEMAN has been making a positive contribution for a few years to the community through his employment and involvement with sporting organisations. I have taken this into account and also recognise the effect of non-revocation for his family members in Australia.

32    The Minister then discussed the extent of impediments that might be faced by the applicant if he were to be removed from Australia:

40.    I note Mr FREEMAN stated he has no immediate family members in Liberia, so he would not have any support there for accommodation or employment. I also note Mr FREEMAN has concerns about the absence of proper security and basic social services, and lack of opportunities available in Liberia.

41.    Also, as discussed above, Mr FREEMAN stated he is fearful for his life if he is forced to return to Liberia on the basis that key positions in the country's security forces may be occupied by the same rebel militia who killed his father, attacked their home and beat him and his brothers unmercifully. It is noted Mr FREEMAN stated that he is concerned about the state of Liberia regarding outbreaks of disease, heightening crime rates, people regularly going missing and the fragile nature of peace within the country. I note Mr FREEMAN feels that returning to Liberia would be like 'committing suicide.'

42.    Mr FREEMAN is aged 25. There is no evidence to suggest that he has any physical health issues that would limit his work capacity. I accept that social and economic supports in Liberia are limited and that Mr FREEMAN is unlikely to be able to maintain the standard of living available to him in Australia. I also acknowledge that Mr FREEMAN may encounter difficulties in trying to resettle in Liberia due to the political instability and conflicts which exist there.

43.    I find it unlikely that Mr FREEMAN, having grown up and spent most of his formative years in Liberia, would face any substantial language or cultural barriers in establishing himself in Liberia, though I acknowledge the submissions he has made about his fears of returning there.

44.    I find that Mr FREEMAN would experience ongoing hardship upon removal, particularly psychological stress arising from separation from his partner and his children in Australia. In addition, he may face short term practical difficulties, though in light of his familiarity with Liberia, his language skills and employability, I do not consider this hardship would be insurmountable or that he would be placed in a position markedly different to that of other nationals of Liberia.

33    The Minister then addressed the issue of protecting the Australian community. He noted 'in particular' the applicant's claim that he does not pose an unacceptable risk of reoffending. The Minister then discussed the applicant's criminal conduct.

34    The Minister first addressed generally the fact that the applicant had a considerable number of convictions between 2010 and 2016. The earlier offending comprised driving and public order offences that were punished by fines and disqualification, but the offending escalated.

35    The Minister referred to convictions in October 2014:

48.    On 9 October 2014 Mr FREEMAN was convicted of the following offences in the Magistrates Court of Western Australia:

-    Two counts of assault public officer - six months imprisonment, four months imprisonment (cumulative), suspended for 12 months

-    Assault public officer; two counts of obstructing public officers; and breach of bail granted (fail to appear soon after) - intensive supervision order for 12 months on each charge, to be served concurrently

-    Failed to comply with request to give police personal details, breach of bail undertaking; two counts of disorderly behaviour in public - no punishment

36    The Minister noted that the circumstances of the offending included attempting to bite a police officer and spitting in the face of a police officer whilst they went about their normal duties, conduct described by the Magistrate as appalling and disgusting. According to the sentencing remarks, the Magistrate regarded the offences as very serious but was prepared to suspend prison terms subject to the applicant being supervised. The Minister said that assaults on police should be regarded very seriously, as they work against proper law enforcement.

37    The Minister referred to the applicant's convictions in December 2014 for sexual offences:

46.    In considering the nature and seriousness of Mr FREEMAN's criminal offending I take the view that sexual offences are very serious, particularly if committed against minors, as in this case.

…

51.    On 19 December 2014 Mr FREEMAN was convicted in the District Court of Western Australia of two counts of sexually penetrated a child over 13 and under 16. On each count Mr FREEMAN was sentenced to 12 months imprisonment, to be served concurrently, suspended for one year subject to program participation and supervision.

38    The applicant was 19 years old at the time of the offending, and the victim was aged 14. After setting out the details of the offence, the Minister continued:

52.    … The Judge commented that it was an opportunistic act by Mr FREEMAN to have 'cold and heartless' sex for his own gratification. I see no reason to disagree with this description and consider that while this offending did not involve any force and the victim gave nominal consent, the offending must be regarded as very serious because of Mr FREEMAN taking advantage of a particularly vulnerable victim to gratify his own sexual urges.

39    The Minister also noted that the Judge had found that the applicant had also encouraged two of his friends to similarly offend against the victim, showing complete disregard for the vulnerability of the victim.

40    The Minister then turned to the August 2016 and October 2016 convictions:

54.    Following the above convictions, in August 2016 Mr FREEMAN was convicted in the Magistrates Court of Western Australia of give false personal details to police; criminal investigation (identifying people) and fined $500. In October 2016 he was convicted in the Magistrates Court of Western Australia and the District Court of Western Australia of the following offences:

-    Four counts of breaching Intensive Supervision Order - three months imprisonment on each charge, to be served concurrently

-    Two counts of breach of suspended sentence - three months imprisonment on each charge, to be served concurrently

-    Four counts of breaching CRO or community order without reasonable excuse - fined $500 on each count

-    Breach of conditional suspended imprisonment - three months imprisonment

-    Six counts of failure to comply with reporting obligations - fined $300 (global)

-    Three counts of breach of bail granted undertaking - fined $300 (global)

-    Breach of police order - fined $300 (global)

-    No authority to drive - fined $200, licence disqualified

-    Fail to provide sample of breath for breath analysis test - fined $900, licence disqualified

55.    I find that the sentences Mr FREEMAN 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 Court viewed the sexual offending as very serious, even acknowledging that Mr FREEMAN was not required to serve the term of imprisonment immediately.

56.    In summary, I conclude Mr FREEMAN's sexual offending of two counts of sexually penetrated a child over 13 and under 16 constitutes very serious offending, and that his other criminal history shows an ongoing disregard for Australian law which adds to the overall seriousness of his offending.

41    The Minister then gave a lengthy discussion under the heading of 'Risk to the Australian community'. He commenced by stating:

57.    I have considered whether Mr FREEMAN 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 Mr FREEMAN has undertaken to reform and address his behaviour. I have also taken into account Mr FREEMAN's overall conduct in the custodial and non-custodial environment, and his insight into the offending.

58.    I note Mr FREEMAN has expressed his remorse and regret for his actions, as well as undertaking steps to reform his character. I also note Mr FREEMAN was tormented by his earlier experiences in Liberia and adopted coping mechanisms like alcohol and drugs as a part of his life. I note Mr FREEMAN voluntarily enrolled himself in rehabilitation courses and attended Alcoholics Anonymous and Narcotics Anonymous to overcome his substance abuse, as well as participating in a 12 step Recovery Programme. I note he has also completed a few courses offered to him to enhance his prospects of acquiring employment upon release.

42    He then referred to evidence about rehabilitation programmes that the applicant had engaged in, letters of support, the applicant's intention to live with his older brother and his employment plans. The Minister noted that being employed had not prevented the applicant from offending in the past. The Minister referred to the sentencing remarks from October 2014 where the Magistrate noted the applicant's traumatic upbringing and problems with alcohol abuse that might benefit from counselling.

43    The Minister then referred to the December 2014 sentencing remarks and stated:

64.    In handing down the sentence on 19 December 2014, I note the Judge referenced a pre-sentence report and found that Mr FREEMAN had a problem with alcohol, anti-authoritarian attitudes, negative peer associations, a lack of consequential thinking and unaddressed childhood trauma. The Judge also commented that Mr FREEMAN was not remorseful, was still in denial of his offending and that whilst he held that attitude he was at risk of re-offending. The Judge remarked that hopefully it was not too late, with some assistance, for Mr FREEMAN to be rehabilitated and become a law-abiding member of the community.

65.    I note that in suspending the term of imprisonment imposed for Mr FREEMAN's sexual offending, the Court required him to 'engage in programs that are consistent with the matters raised in the pre-sentence report'. The information available to me does not indicate that Mr FREEMAN has engaged in any training or counselling specifically designed for sex offenders.

66.    In his current representations, I note Mr FREEMAN has not expressed any concern for the victim of his sexual offending and maintains that he never had sex with her, despite being found guilty by a jury on 19 December 2014. I am concerned that, despite Mr FREEMAN's expressions of remorse, he has not shown any insight into the effect of his offending on the victim, particularly bearing in mind her very young age at the time of the offences.

44    The Minister then referred to offending that has occurred whilst the applicant has been in immigration detention and also related the applicant's representations as to that conduct.

45    The Minister concluded that part of his decision by stating:

69.    In assessing the risk that Mr FREEMAN will re-offend, I have taken into consideration his criminal history, his responsibility and limited insight into his offending, his participation in rehabilitation programs and training courses along with his employment history, involvement with sporting organisations and strong familial support.

70.    I have also given consideration to the nature of Mr FREEMAN's offending, having particular regard to the seriousness of sexual offending. I have also had regard to the Judge's remarks that Mr FREEMAN was not remorseful and was still in denial of his offending, his engagement in behaviour contrary to immigration detention rules whilst placed in immigration detention along with the fact his current commitment to rehabilitation has been untested in the Australian community. In conclusion, I find there still is an ongoing risk, albeit somewhat lower than at the time of his original offending, that Mr FREEMAN may re-offend.

46    The Minister then said under the heading 'Conclusion':

75.    In considering, in light of Mr FREEMAN'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 FREEMAN's [children], namely [redacted] and [redacted], and [stepchildren], namely [redacted] and [redacted], along with his minor step-brother, nieces and nephew. I found that their best interests would be served by the revocation of the original decision.

76.    In addition, I have considered the length of time Mr FREEMAN has made a positive contribution to the Australian community through his employment and involvement with sporting organisations and the adverse consequences of non-revocation of the original decision for his other family members.

77.    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 FREEMAN, some of which are of a sexual nature, and involved a vulnerable member of the community, that being a minor.

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

79    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 FREEMAN 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, stepchildren and other minor family members, as a primary consideration, and any other considerations as described above. These include his length of residence and bonds, his claims that he will suffer hardship and harm if returned to Liberia, his employment, involvement with sporting organisations and familial ties to Australia, along with the hardship Mr FREEMAN, his family and social networks will endure in the event the original decision is not revoked.

Before this Court - grounds of review

47    The amended grounds of review were as follows:

1.    The Respondent's decision was affected by jurisdictional error in that he failed to give proper, genuine and realistic consideration to the Applicant's representations.

Particulars

The Respondent failed to consider the circumstances under which the Applicant breached his suspended sentence, which resulted in his three-month incarceration and brought him within the ambit of subsection 501(3A) of the Migration Act 1958 (Cth).

2.    The Respondent's decision is affected by jurisdictional error in that he failed to give proper, genuine and realistic consideration to the Applicant's representations.

Particulars

The Respondent failed to consider the impact on the Applicant's Australian citizen children visiting a war-torn (Liberia) in order to spend time with their father.

3.    The Respondent committed jurisdictional error or failed to carry out his statutory task by failing to give proper, genuine and realistic consideration to the Applicant's representations.

Particulars

The Respondent failed to give proper, genuine and realistic consideration to the Applicant's representation that he is afraid for his life if returned to Liberia. The Respondent made no finding as to the Applicant's representation that he faces death (as opposed to hardship) if returned to Liberia nor that he was previously found to be a refugee by Australia.

4.    The Respondent committed jurisdictional error or failed to carry out his statutory task by failing to give proper, genuine and realistic consideration of the Applicant's representations.

Particulars

The Applicant asserted that if he were deported to Liberia he would be at risk of violence and threats because it would be assumed he had returned with money.

The Respondent failed to give proper, genuine and realistic consideration to this representation.

Principles - representations

48    Section 501 of the Act relevantly provides as follows:

(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.

(3B)    Subsection (3A) does not limit subsections (2) and (3).

(4)    The power under subsection (3) may only be exercised by the Minister personally.

(5)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

Character test

(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)); or

…

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; …

49    Section 501CA of the Act relevantly provide as follows:

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.

50    The applicant's visa was cancelled under s 501(3A). The applicant made representations in favour of revocation in response to an invitation under s 501CA(3) of the Act. The Minister was then obliged under s 501CA(4) to consider whether there was a reason why the original decision should be revoked: Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [21]. Although the provision does not say so, the Minister is required to consider the representations: Buadromo at [41]. Representations as a whole constitute a mandatory relevant consideration: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [22]-[24].

51    The content of the Minister's obligation to consider the representations has been the subject of a number of recent decisions that have emphasised the requirement of the Minister to consider whether he is satisfied that there is another reason to revoke the original decision to cancel a visa, and the qualitative nature of the assessment task.

52    In BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [62], Bromberg and Mortimer JJ referred with approval to the statement by Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42] that:

If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant's case the Minister is bound to consider it …

53    It is clear however that not each individual statement or matter contained in the representations gives rise to a mandatory relevant consideration: Viane at [24] (Rangiah J), [70] (Colvin J); Buadromo at [41].

54    In Viane, Rangiah J said as follows:

[30]    If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501CA(4) of the Act, which if accepted would or could be dispositive of the decision, the Minister's error may be characterised as a jurisdictional error. Further, if what is overlooked is better characterised as "information" (or "material", or "evidence"), rather than an "argument", there may be jurisdictional error where the "information" is sufficiently important, such that the error is serious enough to be described as jurisdictional. It is not essential that either the argument or information is "critical" in the sense that its acceptance by the Minister would necessarily have resulted in a different outcome.

55    Also in Viane, Colvin J emphasised that a failure to consider significant matters in the representations would be a failure to carry out the statutory obligation imposed on the Minister:

[75]    It follows from the above that a failure to consider significant matters in the representations would be a failure to conform to the statute. Further, 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. The statutory requirement for the Minister to invite representations must lead to the conclusion that if representations are made as to significant matters then the Minister must consider whether to revoke the original cancellation and do so by considering the representations as to those matters. Jurisdictional error, in the sense relevant in the present case, consists of such a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by the Migration Act: Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23]-[26].

…

[77]    For the same reasons, the failure to consider each substantial complaint that is raised by way of representation may also be a failure to afford procedural fairness. A failure to respond to a substantial, clearly articulated argument relying on established facts has been held to be a failure to accord natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24], [95].

56    It is generally not essential for a tribunal or other primary decision-maker to refer to every piece of evidence or contention advanced by a claimant: Buadromo at [49], citing Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47]. In WAEE, the Full Court said:

[47]    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

57    The Full Court in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 addressed the qualitative nature of the task as follows:

[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.

58    The language of 'proper, genuine and realistic consideration' is to be avoided: Maioha at [42]; Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at 520 [24]; and Buadromo at [44].

59    In Navoto v Minister for Home Affairs [2019] FCA 295, Chief Justice Allsop collected and summarised the recent authorities on consideration of representations, and concluded as follows:

[47]    From the above discussion it can be taken that a failure to consider or take into account matters of sufficient importance in the representations may amount to jurisdictional error either because it cannot be said that the required state of satisfaction has been reached in accordance with the section in all the circumstances, or because not to take such an important matter into account reflects a failure to take into account all the representations. One should be cautious about over reliance on textual taxonomical precision in this area. There will be jurisdictional error if material important in the representations has not been taken into account so as to make the purported exercise of the power not one that can be seen or characterised as being based on, or having taken into account, the representations as a whole. An evaluation of this will be context and circumstance specific. Textual formulae are of little assistance.

60    It must also be noted that whether a failure to comply with a statutory condition comprises jurisdictional error remains subject to a materiality threshold. This threshold would not ordinarily be met in the event of a failure to comply with the condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [29]-[30].

61    The applicant's reference in each ground of appeal to the Minister's alleged failure to give 'proper genuine and realistic consideration' to certain representations must be viewed against the authoritative statements as to the Minister's obligations referred to above, some of which were published after the date of the applicant's written submissions.

Ground 1

62    The applicant's representations as to the circumstances of the breach of the conditions of his suspended sentences were not addressed directly in the Minister's decision. At its highest, the Minister refers to 'having [had] regard to any mitigating or causal factors'.

63    The applicant submits that those representations were critical to the question of risk to the Australian community; that the visa was cancelled not at the time he was sentenced for the sexual offending but only later after he breached the supervision orders; and that in effect the applicant had his visa cancelled because of those breaches of suspended sentences, breaches that occurred when some time had passed since the sexual offending.

64    The focus in the applicant's submissions on the circumstances that brought about the applicant's imprisonment in 2016 tends to minimise the relevance of the sexual offending involving a child. Both s 501(3A)(a)(ii) (sexual offending involving a child) and s 501(3A)(b) (imprisonment) are relevant. If both are met, the Minister must cancel a visa under s 501(3A).

65    This is not a case such as Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81, where the passage of a significant period of time (two decades) was highly relevant to the evaluation of the prospects of reoffending (at [56]). Nor is there a legislative constraint upon the time at which the power conferred by s 501(3A) may be exercised, other than that the power must necessarily be exercised while the visa holder is serving a term of imprisonment: Raibevu v Minister for Home Affairs [2018] FCA 2052 at [38].

66    The Minister was clearly cognisant of the fact that the applicant was imprisoned for breaches of the terms of his suspended sentences. The Minister states that the applicant was convicted of some four counts of breaching intensive supervision orders, two counts of breaching suspended sentences, and an additional count of a breach of a conditional suspended imprisonment. As is apparent from the National Police Record and the list of offences set out at [54] of the decision, one of the breaches for which the applicant was imprisoned related to breaches of the terms of the sentence for the sexual offending.

67    However, it can be inferred that the Minister did not attach any particular emphasis to these breaches as separate offences. His concern in the context of addressing the protection of the Australian community was what he describes as the 'very serious offending' by way of the two convictions from sexual offending. The Minister referred to the applicant 'committing a sexual offence against a child as well as other criminal offences'. He referred to the escalation of the seriousness of the applicant's offending from 2014. He referred to the circumstances of the sexual offending, and that the applicant apparently had a role in encouraging others to also offend. The Minister noted that the victim of the sexual offending was a vulnerable member of the community. The Minister referred to the concern of the sentencing judge in the District Court that whilst the applicant was in denial of the offending, he was at risk of reoffending. The Minister referred to the lack of any concern for his victim and that despite his expression of remorse, he denied the sexual offending and showed no insight into the effect on his victim despite her young age. The Minister also noted the lack of any evidence that the applicant had engaged in programs for sex offenders.

68    Other than referring to the seriousness of the assaults against a police officer and the sentencing remarks of the magistrate relating to those assaults, the Minister does not otherwise reveal in the decision any focus on the circumstances of the other criminal offending (failure to give police personal details, breaching community orders without reasonable excuse, breaches of bail, driving offences, failure to provide breath sample and the breaches of the supervision orders and suspended sentence). He notes that his 'other criminal history' shows an ongoing disregard for Australian law. The Minister refers to the 'very serious nature' of the crimes committed by the applicant. It would be artificial to interpret that statement as meaning that the Minister considered each and every offence committed by the applicant to be of an equally serious nature.

69    The two counts of sexual offending were clearly the most serious offences for which the applicant was convicted. The fact that the sentence was suspended on conditions does not derogate from the fact that a custodial sentence was imposed, and that the offence can properly be described as serious: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [73]-[75]. Both the Magistrate's Court and the District Court also imposed custodial sentences for the breaches of the supervision orders.

70    In those circumstances, I do not consider it can properly be inferred that the Minister failed to consider the representations that were made as to the mitigating circumstances of the offending that resulted in imprisonment. The inference more readily arises that the Minister did not consider the mitigating circumstances relating to the breaches of the suspension orders were of any particular relevance, taking into account the Minister's serious concern as to the sexual offending, for which the applicant had been sentenced less than two years before the sentencing for the breaches. Nor can it properly be inferred that the Minister failed to take into account the 'type of offending', as submitted by the applicant. In my view the reasons indicate there was a qualitative analysis of the material relating to the applicant's record of offending. This can be inferred from the focus on the sexual offending, the reference to the seriousness of the assaults on the police officers and only a more general reference to the balance of the criminal offending. This is an example of where it was unnecessary for the Minister to make a specific finding about the circumstances of the breach because the relevance of such circumstances was subsumed in the findings of greater generality about the seriousness of the applicant's offending, findings that found an evidentiary basis in particular in the sexual offending.

71    In any event, nor was it necessary for the Minister to consider each particular statement in the representations. In light of the serious nature of the other offending and the approach of the Minister referred to in [67] above, I do not agree with the applicant's submission that the representations about the breaches of the suspension orders were critical or of sufficient importance to the Minister's task such that any error in failing to consider them is serious enough to be described as jurisdictional. The Minister in reaching the required state of satisfaction was not obliged to take into account those representations. Had the Minister expressly considered those representations, it is difficult to see how any different outcome would have been reached. The breaches resulted in sentences of imprisonment. They were but part of a string of offences over time, the most concerning of which from the Minister's perspective was clearly the sexual offending. It is difficult to see how any failure to respond to the applicant's contention and evidence about the breaches could realistically have made a difference to the outcome in this case, given the findings against the applicant in relation to protection of the Australian community at [45]-[71] of the Minister's reasons. There was an evidentiary basis upon which the Minister might reasonably conclude that the applicant might reoffend.

72    There are two other points arising out of the applicant's submissions that should be addressed briefly.

73    First, in his written submissions the applicant argues that the reasons for his breach of bail, giving false details to a police officer and driving offences were relevant to the Minister's deliberations. Although I have found that any failure to consider these reasons would not have led to a different outcome, the reasons for these offences were not raised by the applicant in his representations to the Minister. The Minister is under no obligation to consider reasons for revocation not raised by the applicant: Viane at [17].

74    Second, the applicant relied upon Splendido v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1158, a case where the Assistant Minister apparently relied upon only a National Police Certificate that recorded no more than the basal information about each offence committed by the visa holder. The Assistant Minister inferred from that list that the offences committed were of a serious nature, that the Court viewed the offending as very serious and that further offending could result in physical harm. It was found that there was not a 'skerrick of evidence' to support the findings of the Assistant Minister. Jurisdictional error was established.

75    This case is factually distinct. The Minister in this case had regard to the list of offences in the National Police Record but also referred to the sentencing remarks of the Magistrate and the Judge who sentenced the applicant for the assaults on police and the sexual offending respectively. The circumstances of that offending were set out in the reasons. The evidentiary basis for the Minister's consideration of the assessment of risk of harm to the Australian community was disclosed.

Ground 2

76    The applicant submitted that the Minister failed to deal with his representation as to the potential impact on his children if they had to visit Liberia in order to spend time with him, and that such a representation was implicit in his more general representations about his concern to maintain a relationship with his children. The applicant accepted through counsel that the representation was not made expressly.

77    The difficulty with ground 2 is that the applicant did not articulate in his representations that he would seek to have his children visit him in Liberia and they might face risk if they travelled there. Rather, the tenor of the representations is one of concerns expressed by him as to the effect on the children if he were to be separated from them and returned to Liberia. This is echoed in the applicant's brother's submission, referred to by the Minister, to the effect that the applicant will not see his twin children grow up if the applicant is returned to Liberia. I do not consider those stated concerns can properly be elevated to a discrete claim based on travel to Liberia: see Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [45]-[46].

78    To my mind there is nothing in the representations so clear as to found a 'substantial, clearly articulated argument' about the impact on the applicant's children if they were to travel to Liberia. Further, in light of the applicant's representations about violence levels in Liberia, it is unlikely that the Minister would have understood, absent a specific articulation, that the applicant might seek to have his children travel there. The point was not sufficiently central to the manner in which the applicant put his case for there to be jurisdictional error.

79    In any event, this particular matter of separation is subsumed in findings of greater generality made in favour of the applicant, namely that his partner is struggling emotionally, financially and physically with raising four children on her own, and that although the applicant communicates using Skype, it would be in the best interests of his children/stepchildren that the original decision to cancel the visa be revoked to allow them to have a direct and personal relationship with their father/stepfather and for the applicant to continue to provide them with emotional, financial and practical support and care.

80    For completeness, I note the applicant also submitted that the Minister was obliged to have regard to cl 11.2 of Direction No 65 (effect on separation from non-citizen, taking into account the child's ability to maintain contact in other ways). That is not correct. Direction No 65 does not bind the Minister, but only the Minister's delegates: NBZM v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [6].

Ground 3

81    The applicant contended that the Minister only dealt with his claims to fear harm or hardship in a generalised way. That contention ought not be accepted when proper regard is paid to the nature of the representations, the recent authorities with respect to the application of Direction No 75 and the Minister's response in his decision.

82    In light of the representations that were expressly made in the applicant's letter of 21 January 2017 with respect to Australia's non-refoulement obligations under the Refugees Convention, ICCPR and CAT, it is clear that the applicant raised issues as to harm, hardship and difficulties that he would face if returned to Liberia. The Minister considered such issues under the headings 'International non-refoulement obligations' and 'Extent of impediments if removed', as referred to above.

83    The Minister clearly had regard to the applicant's representations about fears for his life if he is returned to Liberia and acknowledged that he was previously found to be a refugee: see, for example the Minister's decision at [1] (reference to refugee visa), [12], [26], [31], [34], [40], [41], [42]-[44]. The Minister's consideration of those representations is evidenced in his reasons with respect to Direction No 75 (a direction issued after BCR16).

84    There are a number of cases where the obligation of the Minister (or Assistant Minister) to consider such claims of harm (including death) has been addressed since the issue of Direction No 75: Ali; Ibrahim v Minister for Home Affairs [2018] FCA 1592; Greene v Assistant Minister for Home Affairs [2018] FCA 919; Turay v Assistant Minister for Home Affairs [2018] FCA 1487; DOB18 v Minister for Home Affairs [2018] FCA 1523; and Sowa v Minister for Home Affairs [2018] FCA 1999.

85    The Minister clearly understood that the applicant could and most likely would bring a protection visa application (at [29]-[30] of reasons). The Minister's reasons at [27] demonstrate that he understood the sequence in which matters are considered on a protection visa application and the future necessity to first address the refugee and complementary protection criteria as required by the terms of Direction No 75. The Minister acknowledged the representations made by the applicant as to the harm he will face if he is returned to Liberia. He acknowledged that the representations included that he was afraid for his life because of the presence of rebel militia, and that he feared rebel militia may harm or even kill him. The Minister clearly understood the significance of such claims as he rightly considered that the claims by the applicant as to harm, including fears for his life, would be considered as part of the consideration of the refugee and complementary protection criteria and Australia's non-refoulement obligations.

86    There was a basis for the Minister's assumption that an application for a protection visa would be made in due course. Such an application may well be expected given the fact that the cancelled visa was a refugee visa and the fact that the applicant's representations in support of revocation included claims as to his fears of harm on return to Liberia, including death. It was not necessary for the Minister to make findings as to whether or not the criteria for a protection visa would be satisfied, but rather the Minister was obliged to consider whether the representations satisfied him that there was any other reason to revoke the visa cancellation: Ali at [28].

87    I note that in his written submissions the applicant did not refer to the line of cases after BCR16 and did not refer to non-refoulement obligations, despite the fact such obligations were raised by the applicant's representations. In oral submissions, counsel for the applicant did not take issue with the relevance of Direction No 75, a matter squarely raised in the Minister's written submissions, and counsel acknowledged he was aware of the decision in Ali. The applicant's written submissions refer to both a failure to address death or serious threats of violence, and a failure to address fears as to otherwise surviving in Liberia. The submissions therefore seemed to proceed on the basis that the representations encompassed facts that fall within Australia's non-refoulement obligations but may also fall outside. I consider the Minister had regard to all such matters in his reasons, noting his consideration of the extent of the impediments that the applicant will face if removed.

88    In oral submissions, counsel for the applicant contended that the Minister failed to have proper regard to particular representations including as to the reasons that brought the applicant to Australia, his fears about the possibility of retribution and living standards, the risk of the outbreak of disease, an increase in criminal activity and an increase in thefts and secret killings. The applicant contends each of these were critical representations.

89    It seems to me that the Minister did consider the representations as a whole as to the applicant's fears as to harm or hardship (including death) upon return to Liberia, in the manner explained in Baudromo, and against the backdrop that the Minister identified that the applicant previously held a refugee visa. It cannot properly be said that the Minister failed to have regard to representations about the difficulties that the applicant might face on removal.

90    The Minister accepted (at [44] of reasons) that the applicant may face hardship. On the proper reading of the Minister's reasons, the reference to hardship encompasses hardship from the presence of rebel militia (at [31] of reasons) and as a result of political instability and conflicts (at [42] of reasons), a finding in the applicant's favour, but as appears from the Minister's conclusion (at [79] of reasons), not a finding that of itself was sufficient in the Minister's view to comprise another reason why the original decision should be revoked.

91    The Minister also considered, in my view, the consequences for the applicant if returned to Liberia and his fears as to otherwise surviving. Those hardships included limited social and economic supports, political instability and conflicts, language and cultural barriers and psychological stress. Such hardships were accepted, a finding in the applicant's favour (at [42], [44] of reasons). It is artificial to read the reasons at [39]-[44] as if the Minister had failed to consider the matters raised by the applicant such as the risk of disease and heightening crime rates, when they are expressly noted in the same section of his reasons, and the Minister came to the view that the applicant would face hardship. To read those paragraphs otherwise would be to interpret them with an eye attuned to the detection of error rather than in a practical and common sense manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272. Further, the Minister was not obliged to make findings of fact with respect to each part of the applicant's claims as to what might happen to the applicant if he is returned: Buadromo [58]-[60].

92    In my view, there was the requisite 'reality of consideration by the decision-maker': Maioha at [45]. The Minister had regard to the representations about harm (including fear of death) and hardship and also had regard to the representations about the difficulties the applicant may face if he returned. The issues were sufficiently confronted by the Minister. The Minister correctly identified that claims that were made by the applicant and that were relevant to Australia's non-refoulement obligations would in all likelihood be addressed as part of any application for a protection visa.

93    Against that backdrop, the question for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked, and the decision reveals, in my view, that having considered the relevant representations and taking into account the manner in which Direction No 75 operated, the Minister did not consider they provided such reason.

Ground 4

94    Although counsel for the applicant relied on the same submissions for grounds 3 and 4, the Minister advanced an additional submission. The Minister submitted that ground 4 should also be rejected because the representation (that the applicant might be at risk of violence and threats because it would be assumed he had returned with money) was not truly intended as a separate matter warranting express attention.

95    I do not consider it should be inferred that there was a failure to consider that matter. Rather, the nature of the particular statement is such that it can reasonably be inferred that its consideration is reflected in the Minister's more general findings as to threats of violence and hardship that may be faced upon the applicant's removal, and by the Minister's finding that Australia's non-refoulement obligations would in all likelihood be considered.

96    The particular statement in the representation raises issues relevant to consideration under Australia's non-refoulement and international obligations and, as discussed above, the Minister addressed the significance of those obligations and Direction No 75. I do not consider any failure to consider that particular statement would comprise jurisdictional error on the part of the Minister in any event, because I do not consider it would have affected the outcome, taking into account that the Minister observed that the applicant's fears for his life and fears of harm would be considered in the context of the protection-specific criteria in accordance with Direction No 75: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82], [84]; Hossain at [29]-[30].

Conclusion

97    The Minister was required to consider whether the original decision to cancel the applicant's refugee visa should be revoked. The Minister directed his attention to whether there was 'another reason why the original decision should be revoked' and he concluded on the materials before him that he was not satisfied that there was such another reason. For the reasons set out above, I do not consider that the Minister committed error in reaching that state of satisfaction.

98    Accordingly, the application is to be dismissed with costs.

Associate:

Dated:    26 March 2019