FEDERAL COURT OF AUSTRALIA

Pennie v Minister for Home Affairs [2019] FCA 489

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent's costs as agreed or assessed.

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

REASONS FOR JUDGMENT

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 BF transitional (permanent) visa was cancelled by a delegate of the Minister 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 the delegate was not satisfied that he passed the character test, due to his substantial criminal record.

2    The applicant is an Irish citizen who moved to Australia with his parents at the age of 6 in 1980.

3    On 21 July 2015 the applicant was sentenced in the District Court of Western Australia to 3 years imprisonment for possession of methylamphetamine with intent to sell or supply to another, and 12 months imprisonment (cumulative) for wilful destruction of evidence.

4    On 24 July 2015 the applicant was sentenced in the Perth Magistrates Court to an additional 6 months imprisonment on a number of other charges.

5    On 13 January 2016, and as noted above, a delegate of the Minister cancelled the applicant's visa under s 501(3A) of the Act.

6    In accordance with s 501CA of the Act, the applicant was invited to make representations about the original decision to cancel his visa, and did so.

7    On 18 June 2018 the Minister made a decision not to exercise his power to revoke the original decision under s 501CA(4). The Minister found that the applicant failed the character test and he was not satisfied that there was another reason to revoke the cancellation.

8    The applicant now seeks judicial review of the Minister's decision in this Court.

Representations made by the applicant

9    In issue in this case are two categories of representations or statements made by the applicant. First, the applicant relies upon statements to the effect that he fears a lack of medical care and that he would be homeless if he were to be returned to Ireland. Second, the applicant relies upon statements and findings about whether he has severed links with the Bandidos Motorcycle Club, a matter relevant to the Minister's findings about the risk of reoffending. The applicant submitted in his representations that he does not pose an unacceptable risk to the Australian community, in part because he has severed these links.

10    The applicant relies on representations made on various occasions. On 8 February 2016 the applicant provided the Department with a Personal Details Form, submissions prepared by his lawyers, and a Personal Statement. In the Personal Details Form, in response to the question, 'Please describe your concerns and what you think will happen to you if you return [to your country of citizenship]', the applicant made the following representations:

I will be homeless, financially destroyed, my support system will have gone, I will have no medical care as I have heart failure. I will have no money for medications to keep me alive, no specialist treatment.

11    In his lawyer's submissions of 8 February 2016, the applicant made the following relevant representations:

Risk of recidivism - no longer involved with motorcycle club

29.    In Australia, motorcycle clubs are commonly associated with criminal activity and so it is natural that any association a person has with such a club casts a shadow on them. The sentencing judge [Sweeney DCJ on 21 July 2015] noted that Mr Pennie had been involved with the Bandidos motorcycle club for about two years. Mr Pennie states 'I was looking for something to belong to brotherhood, this turned out to be the worst decision in my life.'

30.    Sweeney DCJ noted that 'you're now no longer a member of that group. You were hoping that that separation was going to be on positive terms. Hopefully it has been on positive terms, and I'm told with your health problems you really now just want a quiet life.' That separation is ongoing and permanent. Unfortunately however, the separation was not entirely on positive terms. Mr Pennie says in his statement 'I still didn't know how to leave the Club so I just told them I'm out, and they said they would make life hard if I didn't do a few things.'

31.    On 2 February 2015, whilst detained at Casuarina Prison, Mr Pennie was the victim of a serious unprovoked assault by three other inmates involving an iron bar. He suffered severe head and facial wounds as a result of the assault. Witnesses say that as Mr Pennie was being removed from the scene of the assault, he said 'you will have to do a better job than that.'

32.    Mr Pennie's evidence is that this assault was a direct result of him severing ties with the Bandidos motorcycle club over a year prior to the incident.

…

Risk of recidivism - future intentions

…

43.    [Mr Pennie] has severed all ties with the Bandidos motorcycle club, a separation which was reinforced through the unfortunate incident at Casuarina Prison. He no longer has any interest in motorcycles and intends to isolate himself from all prior negative influences once released from prison.

…

50.    The risk of recidivism faced by the Australian community is low and far from the threshold of being 'unacceptable' under 13.1.2 of the Direction for the following reason:

e.    Mr Pennie's exemplary behaviour in prison;

f.    his realisation of the effect of his sentence on his migration status;

g.    his severed ties with the Bandidos motorcycle club;

h.    his remorse over his crimes and the effect they have had on his family;

i.    his commitment to rehabilitation and a crime-, prison- and drug-free life; and

j.    his ongoing health issues.

12    Under the heading 'Extent of impediments if removed', the applicant submitted:

80.    If deported, Mr Pennie fears that he will be at risk of homelessness, financial devastation, lack of medical care (including access to specialists in charge of his heart condition and mental state), unemployment, loneliness and an exacerbation of his anxiety and depressive symptoms. He will suffer a complete loss of his entire support system. In addition, his inability to return to Australia will have devastating effects on his family in Australia, who will be left without a son, brother, uncle and friend.

13    In the Personal Statement, the applicant wrote:

I felt I had nothing to live for. I made worse decisions that have lead [sic] me to being in prison. This was my rock bottom, I still didn't know how to leave the Club so I just told them I'm out, and they said they would make life hard if I didn't do a few things.

They said they wanted me to stab a fellow inmate and another bashed, I told them "NO" and I was told to watch my back. I was working in the Print Shop at Casuarina Prison and was attacked from behind by 3 in mates. I was hit with an Iron Bar over the head and when I was on the ground I was kicked to the head and body

…

My decisions have affected everything, if I was deported I have no financial, medical, emotional support. I don't know any family except my own here in Australia, I know nothing about my country of birth.

14    The Minister also had before him a Program Completion Report dated 31 August 2016 from the Pathways Program. That Report stated, amongst other things:

Mr Pennie was diagnosed with heart failure. Mr Pennie described his life as a "mess", saying he went looking for "brotherhood" in an outlaw motorcycle gang. Mr Pennie indicated that this was the worst decision he had ever made and he eventually left the Club. However, he admitted that he continues to remain under threat from his former club-members.

…

He identified a reoffending prevention goal as staying away from gang life, saying that his family was the most important thing to him. Mr Pennie said he would also continue to disassociate from former work associates, taking up work as a landscape gardener on release.

…

He was able to identify several risk factors contributing to his AOD use including boredom and his association with negative peers. Mr Pennie said that he had disassociated himself from people in the industry in which he had previously worked, as well as leaving the outlaw motorcycle gang… He appeared to develop a better self-awareness of his potential for relapse, acknowledging that "the risk comes when you walk out the door of the prison gate."

15    In a letter dated 14 November 2017, the applicant made further submissions regarding the revocation of the cancellation decision. Relevantly, he said:

Australia is the only home I have ever known and struggle to imagine what position my removal would leave me in but I am almost certainly going to be left unemployed, without accommodation, isolated from my support network and unable to access the assistance of my medical professionals including my psychologist.

16    In a Personal Circumstances Form received by the Department on 14 November 2017, the applicant relevantly said:

I will have no support for medical, [psychological] issues, financial issues and homelessness would all be an issue.

17    The Minister was also provided with medical reports relating to the applicant's medical conditions and medical reports summarising the applicant's injuries caused by the assault in prison on 2 February 2015, including photos of those injuries.

The Minister's decision

18    The Minister commenced by summarising the applicant's representations as follows:

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

-    Mr PENNIE's exemplary behaviour in prison

-    Mr PENNIE has a very close relationship with his nieces and nephew, and it would be in their best interest not to remove him from Australia

-    The realisation of the effect of his sentence on his migration status

-    Mr PENNIE has severed all ties with the Bandidos Motorcycle Club

-    Mr PENNIE's remorse over his offending and the effect it has had on his family

-    Mr PENNIE's commitment to rehabilitation, a crime, prison and drug free life

-    The promise of employment upon release from prison which Mr PENNIE submit would reduce the likelihood of him reoffending

-    Mr PENNIE's strong support network including medical support

-    Mr PENNIE's ongoing medical issues which have changed his outlook on life

19    The Minister addressed the best interests of minor children, and in particular the applicant's close relationship with his sisters' children, his nieces and nephew. The Minister found that it would be in their best interests to revoke the cancellation decision.

20    The Minister then addressed the expectations of the Australian community, stating that given the nature of his offences and his past membership of an outlaw motorcycle gang, the Australian community would expect that the applicant should not hold a visa.

21    As to the strength, nature and duration of the applicant's ties to Australia, the Minister took into account that the applicant had lived in Australia for 38 years, that the Australian community may therefore afford higher tolerance of criminal conduct, that his parents and sisters, nieces and nephews all live in Australia, that his younger brother had died in 2014 in Australia, that the applicant has extensive social ties and a strong support network in Australia and that his mother said the thought of her son being deported had truly broken her heart.

22    The Minister also noted the applicant's extensive work history and contribution to the community, although he found that such contribution was diminished by his motorcycle gang membership and drug offences.

23    The Minister said the following under the heading 'Extent of impediments if removed':

36.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr PENNIE will face if removed from Australia to his home country of Ireland in establishing himself and maintaining basic living standards.

37.    I have considered Mr PENNIE's representations that he suffers from a number of psychological and physical conditions including anxiety and depression which have led to several attempts at suicide, his drug abuse, shoulder injury with related chronic pain, heart failure and Crohn's disease, and therefore needs the support of his family and medical professionals. I have considered a number of documents provided in relation to his health issues, particularly the medical reports provided by Mr PENNIE's representative. I also note that Mr PENNIE has indicated that his compensation claims for his shoulder injury are ongoing and I accept that removal may impact his ability to sustain that claim.

38.    I have considered Mr PENNIE's representations that since losing his younger brother [redacted], he tells his family he loves them every day and the thought of never seeing his family again in Australia is unbearable. Mr PENNIE states that his parents are getting old and if he was removed from Australia, he would not be able to visit his parents' graves when they pass away or that of his brother [redacted]. [His sister] states that deporting Mr PENNIE 'would destroy him.' Both Mr PENNIE and his family and friends note the tightknit nature of the Pennie family.

39.    I have taken into account Mr PENNIE's representations that he has no social or family ties in Ireland and knows nothing about his country of birth. He fears of homelessness, financial devastation, lack of medical care, unemployment, loneliness and exacerbation of his psychological conditions. I note that Mr PENNIE has accepted that he is unlikely to face significant language or cultural barriers if returned. However, Mr PENNIE asserts that the lack of social and economic support available to him will have negative effects on his mental and physical heath and his ability to establish himself there, in addition to difficulties he would likely face in organising the specialist medical support he needs.

40.    I note Ireland has comparable standards of healthcare, social welfare and housing support to Australia. I note Mr PENNIE has a varied work history and find this may assist him to obtain similar or other employment in Ireland to ameliorate his economic hardship. I also note Mr PENNIE's employment in the prison's laundry and his commitment to seeking employment on release from prison is evidence of his ability to overcome the limitations of his shoulder injury and other health concerns. I have considered [the applicant's father's] statutory declaration stating that he has extended family members still residing in Ireland. While Mr PENNIE does not currently know this family they may offer support if he is removed to Ireland.

41.    I accept that Mr PENNIE departed Ireland as a young child and would experience significant difficulties in establishing and adjusting to life as an adult in Ireland. I also accept Mr PENNIE's immediate family and social supports are in Australia and he may experience significant emotional and practical hardships upon return to Ireland. I find that Mr PENNIE's psychological conditions may be exacerbated given his history of depression and suicidal ideation. However I find that as an Irish citizen Mr PENNIE will have a level of access to healthcare, social welfare and housing support that is similar to other citizens of Ireland. I also find that Mr PENNIE has the obtained skills which are transferable to Ireland and should assist him in resettling.

24    The Minister, under the heading 'Protecting the Australian Community', addressed the applicant's criminal conduct and the risk he poses to the Australian community.

25    The Minister noted that the applicant had a history of criminal offending since age 16 for offences such as burglary and disorderly behaviour, but that the sentencing dispositions suggested the offending was relatively minor.

26    On 21 July 2015 the applicant was sentenced in the District Court for drug-related and other offences, including destruction of evidence and police pursuit.

27    The most significant charges were for possession of a prohibited drug (methylamphetamine) (3 years imprisonment) and one charge of wilfully destroying evidence (1 year imprisonment cumulative).

28    The possession charge arose as a result of police attempting to stop the applicant while driving. He refused to do so and a pursuit ensued. When he eventually stopped, police found in his car some 23.9 grams of 69% purity methylamphetamine.

29    The destruction of evidence charge arose out of the applicant's actions in flushing drugs down his toilet once he saw via his surveillance equipment that police had arrived at his house.

30    The sentencing judge described the offending as very serious. Relevant passages from the Minister's decision are as follows:

49.    I concur with the Judge's statement when she remarked that 'the law takes an extremely serious view of people who deal in methylamphetamine' given the potential destructive and devastating damage that it has on the wider community and its relationship to many other criminal matters in Australian courts. I note from the sentencing remarks that at the time of his offending, Mr PENNIE's residence was equipped with surveillance cameras and that he was using multiple phones to communicate with other people who were also dealing in drugs. I concur with the sentencing judge's remarks that this type of set up had all the 'hallmarks of someone who was dealing.'

50.    The Judge noted that Mr PENNIE was the former Vice President of the Bandidos Motorcycle Club in Western Australia. I note that in sentencing Mr PENNIE, the Judge took into account a number of mitigating factors including Mr PENNIE's background, health and early plea. The Judge noted from a pre-sentence psychologist report that Mr PENNIE tried to present himself as a person with emotional issues as the reason behind his involvement in drugs. The Judge rejected this characterisation having looked at the police telephone intercept material and discredited Mr PENNIE's claims that being in possession of drugs was as a result of his personal demons and had nothing to do with his association with his gang membership. I concur with the sentiments of the Judge that Mr PENNIE's involvement in the Bandido's motorcycle gang was a likely driver to his offending and find that this increases the seriousness of his offending.

31    The Minister referred to the applicant's conviction in July 2015 in the Magistrates Court of a number of other offences:

•    Reckless driving - six months imprisonment cumulative to his sentences on 21 July 2015 and two years licence disqualification

•    Conspiracy to sell/supply a prohibited drug (2 charges) - three months imprisonment on each charge concurrent

•    Possessed a prohibited weapon - three months imprisonment concurrent

•    Possessing stolen or unlawfully obtained property - three months imprisonment concurrent

•    Possess a prohibited drug (methylamphetamine) - three months imprisonment concurrent

•    Possess unlicensed firearm - three months imprisonment concurrent

•    Offer to sell or supply a prohibited drug to another - three months imprisonment concurrent

•    Failed to stop when called upon to do so - circumstance of aggravation - three months imprisonment concurrent

•    Possessed drug paraphernalia in or on which there was a prohibited drug or plant - one month imprisonment concurrent

•    Receiving - fined $100

•    Driver fail to stop - fined $100

32    The Minister referred to the Magistrate's sentencing comments, including as to the nature of the dangerous driving (apparently at speeds up to 200 km per hour). The Minister noted the custodial sentences imposed and considered they reflected the offending was very serious.

33    The Minister also stated as follows:

58.    I also note the submission that Mr PENNIE's offences are not violent or sexual or committed against vulnerable members of the community or government officials. I find that Mr PENNIE's involvement in drugs likely had widespread effects on the community. The Judge on 21 July 2015 remarked that many of the criminal offences that come before the courts are linked one way or another to drugs, whether it be someone is under the influence of drugs and commits a violent crime or someone committing an offence to get some money to buy the drugs. Given the nature of the crimes, I do not consider the absence of violence or sexual elements to Mr PENNIE's offending to in anyway diminish the seriousness of his conduct.

59.    Overall, I find Mr PENNIE's criminal record is serious and his conviction for possession of a prohibited drug (methylamphetamine) is very serious given the devastating impact that it has on the wider community.

34    Under the heading 'Risk to the Australian community' the Minister considered that risk through reoffending by the applicant, having regard to a range of matters such as rehabilitation, insights into offending and behaviour in custody.

35    The Minister noted that there were periods of up to nine years where the applicant had not offended.

36    The Minister said that the applicant's offending 'may in part have been attributed to his ongoing drug addiction which may in turn have been influenced by his mental health issues'. However, the Minister noted that in sentencing the applicant, the District Court Judge did not accept the applicant's claim that his offending was solely due to these matters and was 'of the view that Mr Pennie's gang membership with the Bandidos Motorcycle Club and his anti-social lifestyle choices were just as much to blame'.

37    The Minister referred to the applicant's early guilty plea and his representations about the impact his offending has had on his family and the community, and acknowledged that the applicant showed some remorse and some insight into his offending, and that this lessened the risk of reoffending.

38    The Minister referred to the applicant's association with the Bandidos Motorcycle Club and the physical attack the applicant suffered at Casuarina Prison when the applicant refused to comply with a request that he carry out an assault. The Minister said:

69.    I note that Mr PENNIE has acknowledged that he was a former member and Vice President of the Bandidos Motorcycle Club in Western Australia. Mr PENNIE states that he joined the Bandidos Motorcycle Club for the brotherhood but asserts that it turned out to be the worst decision of his life and has since severed all ties with the gang. Mr PENNIE states that he was told by the Bandidos Motorcycle Club that if he wanted to leave the club, he had to stab a fellow inmate and assault another. When Mr PENNIE refused, he was attacked by fellow inmates while serving time at Casuarina prison and suffered significant head and facial injuries.

70.    While I accept that Mr PENNIE has attempted to leave the Bandidos Motorcycle Club, I note the submission from Mr PENNIE states that the separation is 'ongoing.' I find that without a definitive separation from the Bandidos' Motorcycle Club or other negative associations, there remains a risk that Mr PENNIE may re-offend, whether compelled to do so or otherwise.

39    The Minister referred to the applicant's good behaviour record in prison and the steps he has taken over the years to address his drug dependence. He noted that the applicant was 'clean' for 11 years until a relapse due to a shoulder injury sustained at work, which affected his mental health, and that this was further exacerbated by his brother's death. The Minister noted that there remained a risk that the applicant could relapse into drug abuse again, a known driver to his offending, particularly if faced with health concerns or other difficulties in the future, and that the risk of the applicant continuing to engage in drug abuse and related activities increased the risk of his reoffending.

40    After noting that the applicant has offers of accommodation and employment upon release from prison, the Minister concluded:

80.    While I accept that Mr PENNIE has the support of family and friends, has made progress towards his rehabilitation and has positive plans and intentions for his release from prison which may reduce the likelihood of him reoffending, I cannot dismiss his past association with a well-known motorcycle gang, his propensity towards drug use in times of crisis and the absence of testing of his newfound rehabilitation in an uncontrolled environment. I find that if Mr PENNIE resumed contact with any outlaw motorcycle club, his likelihood of reoffending would increase. Furthermore, I find Mr PENNIE's history in resorting to drugs due to negative events makes him susceptible to engage in future offending involving drugs.

81.    I conclude there is an ongoing risk that Mr PENNIE will reoffend. I find that should Mr PENNIE [engage] in further drug related offending, it could result in physical, psychological and other harm to members of the Australian community.

41    Under the heading 'Conclusion', the Minister said as follows:

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

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

90.    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 PENNIE represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his nieces and nephew, as a primary consideration, and any other considerations as described above. These include his lengthy residence and ties to Australia, his contributions to the community, his impediments to returning to Ireland and the hardship Mr PENNIE, his family and social networks will endure in the event the original decision is not revoked.

Before this Court - grounds of review

42    There were two grounds of review, which after some revision at the hearing, were (with inconsequential editing) as follows:

1.    The Minister's decision was affected by jurisdictional error or he constructively failed to exercise his jurisdiction as required under s 501CA(4) of the Migration Act 1958 (Cth) by failing to give proper, genuine and realistic consideration to the applicant's representations.

Particulars

The Minister failed to give proper, genuine and realistic consideration to the applicant's representation that he would experience homelessness and lack of medical care if he were removed to Ireland.

2.    The Minister's decision was affected by jurisdictional error in that it was legally unreasonable.

Particulars

There was no evidence rational connection between the material before the Minister and the following findings:

a.    'I find that without a definitive separation from the Bandidos' Motorcycle Club or other negative associations, there remains a risk that Mr PENNIE may re-offend, whether compelled to do so or otherwise' (at [70]); and

b.    'I find that if Mr PENNIE resumed contact with any outlaw motorcycle club, his likelihood of reoffending would increase' (at [80]).

Ground 1 - representations

43    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].

44    By ground 1, the applicant contends that the Minister was obliged to give 'proper, genuine and realistic' consideration to the applicant's representation that he would experience homelessness and lack of medical care if he were removed to Ireland.

45    The content of the Minister's obligation to consider representations made by an applicant 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.

46    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].

47    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].

48    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 …

49    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.

50    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].

51    The Full Court in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 addressed the qualitative nature of the Minister's 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.

52    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.

53    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].

54    Despite the applicant's reference to 'proper, genuine and realistic consideration', the task undertaken by the Minister is to be addressed against the backdrop of these authorities.

55    In this case, the applicant repeated his concerns about prospective homelessness and lack of medical care if he were removed to Ireland in a number of statements in his representations, as set out in [10], [12], [13], [15] and [16] above.

56    The Minister considered those submissions. He has incorporated reference to them in his reasons and so they can be taken to form part of the reasoning process: Minister for Immigration and Border Protection v Maioha at [64]. The question is whether they were given proper evaluative consideration within the principles discussed above.

57    The Minister's consideration of the representations about homelessness is apparent from [39]-[41] of his reasons (set out at [23] above). There is reference to the applicant's lack of social or family ties in Ireland, his fears of homelessness and a lack of social and economic support. The Minister then notes three matters relevant to the submission about homelessness: that Ireland has comparable standards of social welfare and housing support to Australia; that the applicant has a varied work history and a commitment to seeking work and the prospect that he will be able to work even with limitations due to his health conditions; and that there is possibility of support from extended family members who reside in Ireland. The Minister accepted that the applicant may experience significant difficulties and practical hardships upon return to Ireland. However, the Minister (having already noted that Ireland has comparable standards of social welfare and housing to Australia) found that the applicant would be entitled to a level of access to social welfare and housing support that is similar to other citizens of Ireland, and that he has transferable work skills that may assist him in resettling.

58    Further, it is important to note the conclusion at [90] of the reasons (at [41] above).

59    The Minister found that the risk of harm that the applicant posed to the Australian community and the need to protect it from that risk outweighed the factors in favour of restoring the applicant's visa, including 'the hardship the applicant … will endure'. There is no reason to read 'hardship' as excluding issues of homelessness (or medical needs). It was reasonably open to the Minister to reason that the applicant would face significant difficulties and hardship upon return to Ireland and that such hardship might be ameliorated due to the applicant's ability to speak the language, his potential for employment, access to social and housing services and the possibility of support from his extended family.

60    The applicant submitted that the Minister failed to say anything about what might actually happen to the applicant if he returned to Ireland, failed to address the basis of the appellant's fears and did no more than make a general finding as to services that might be available to the applicant on his return to Ireland.

61    It was for the applicant to persuade the Minister that hardship caused by homelessness was another reason why the decision to revoke the applicant's visa should be revoked. It was for the applicant to put forward whatever material he wished the Minister to take into account about access to housing. It was not for the Minister to investigate and make findings as to the particular outcome for the applicant in terms of finding housing in Ireland: Minister for Immigration and Border Protection v Maioha at [48]-[50]; Ali v Minister for Home Affairs [2018] FCA 1693 at [48]-[49]; McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37]; Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [42]; Romanov v Minister for Home Affairs [2018] FCA 1494 at [14].

62    On my review of the reasons, the Minister as a matter of substance had regard to the representations as to homelessness. I do not see in the Minister's reasons any ground to conclude that the issue of homelessness was not substantively considered.

63    The Minister's consideration of the representations about medical needs is apparent from [37] and [39]-[41] of the reasons (set out at [23] above).

64    Information about the applicant's medical conditions was provided to the Minister and the Minister recorded in his reasons that he had considered those reports. The applicant's medical conditions identified by him include heart failure (he suffered cardiac failure in 2014), Crohn's disease, depression and chronic pain. The Minister noted the applicant's statement that he would likely face difficulties in organising the specialist medical care he needs.

65    Again, it is important to note the conclusion at [90] of the reasons (at [41] above) and the assumption by the Minister that the applicant will endure hardship. Such hardship, which sensibly must be taken to include a reference to dealing with health and medical issues, was acknowledged, but in the Minister's view was outweighed by the risk of harm that the applicant posed to the Australian community and the need to protect it from that risk.

66    The Minister's reasons disclose that he accepted that the applicant would face significant difficulties and hardship upon return to Ireland but that insofar as lack of social and economic support may impact on his physical health and his ability to address his medical needs, the applicant would have a level of access to healthcare, social welfare and housing comparable to that which is available in Australia. There was no evidence from the applicant that supported the statement in the representations to the effect that medical services may be unavailable to the applicant in Ireland. As referred to above with respect to the homelessness representations, it was for the applicant to put forward whatever material he wished the Minister to take into account about medical services in Ireland.

67    In my view the Minister directed his attention to whether hardship, including the prospect of homelessness and the applicant's health and medical issues, comprised '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. It follows that ground 1 is not made out.

Ground 2 - legal unreasonableness

68    Counsel for the applicant carefully developed this ground, based on what were described by counsel as two findings of fact for which there was no logical basis.

69    The applicant's counsel submitted that:

(a)    the Minister concluded that there was an ongoing risk that the applicant would reoffend (at reasons [82]);

(b)    that risk represented an unacceptable risk;

(c)    there were two risk factors identified by the Minister that informed his conclusion, the first being the possibility that the applicant would resume contact with the Bandidos Motorcycle Club and the second being that the applicant would resort to drugs at times of negative events;

(d)    the hypotheses underlying, relevantly, the first finding must have some rational connection to the materials before the Minister and upon which he made his decision (referring to Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 at [36]);

(e)    there are three hypotheses underlying the first risk factor that the applicant would re-join the Bandidos Motorcycle Club;

(f)    the first of those hypotheses is that a factor in the applicant's drug use was his membership of the Bandidos Motorcycle Club (at [65]);

(g)    the second is that the applicant's separation for the Bandidos Motorcycle Club is ongoing (as in not complete) (at [70]); and

(h)    the third is that without a definitive separation from the Bandidos Motorcycle Club, there remains a risk that the applicant may reoffend (at [70], [80]).

70    Counsel accepted there was a rational foundation for the first hypothesis. The District Court Judge had found that there was a connection between the applicant's drug use and his membership of the Bandidos Motorcycle Club, and that material was before the Minister. However, counsel did not accept that there was a rational hypothesis for the second or third hypotheses.

71    The applicant contended that the materials before the Minister (including the representations of the applicant), properly considered, indicated the following:

(a)    the representations the applicant made were that his separation from the Bandidos Motorcycle Club was permanent;

(b)    the relevant material before the Minister was only capable of supporting a finding that the applicant has left the Bandidos Motorcycle Club;

(c)    the relevant material included that the District Court Judge said the applicant was no longer a member of the group; the applicant's written submission of 8 February 2016 said that the separation was 'ongoing and permanent' (and in that context 'ongoing' must mean 'continues') and that the applicant had severed ties with the Club; the applicant in his Personal Statement described his decision to join the Club as the worst decision in his life and described the fact that he told the Club he was 'out'; the applicant endured an unprovoked physical attack because of the separation and he refused to carry out an unlawful attack himself despite a direction to that effect from the Club; and

(d)    there was no rational connection between such material and the Minister's finding that there had not been a definitive separation from the Club.

72    Counsel submitted that although the Minister referred in several places to the applicant's representations that he had severed ties with the Club, the important finding is at [70] of the reasons, where the Minister notes the applicant's submission that the separation was 'ongoing'. As appears from the extract from the submissions of 8 February 2016, that statement was that the separation was 'ongoing and permanent'. The Minister then relies on the abridged statement in finding that, 'without a definitive separation from the Bandidos Motorcycle Club or other negative associations, there remains a risk that Mr Pennie may reoffend'. Counsel submitted that this finding informs each of the Minister's conclusions in [80] of the reasons that 'if Mr Pennie resumed contact with any outlaw motorcycle club, his likelihood of reoffending would increase'; that there is an ongoing risk that the applicant will reoffend (at [81]); and that the applicant represents an unacceptable risk of harm to the Australian community (at [90]).

73    The context and principles of legal unreasonableness referred to in ground 2 are summarised in, relevantly, Muggeridge by Charlesworth J (Flick and Perry JJ agreeing) at [33]-[35], and I respectfully incorporate that summary:

[33]    The finding subject to challenge is a finding of fact the existence of which is not an essential pre-condition to the exercise of the power. In that respect, the jurisdictional error alleged on this appeal is different from that arising in cases involving the exercise of the power to refuse or to grant a visa under s 65 of the Act, the Minister not being subjectively satisfied that the criteria for the grant of the visa are fulfilled. Upon an application for judicial review of a decision to refuse a visa made or purportedly made in the exercise of that power, legal unreasonableness affecting the formation of the Minister's state of non-satisfaction will go to jurisdiction because such an error would result in the power having been exercised in circumstances where a factual precondition for its exercise (being the lawful formation of a state of mind) did not exist: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [23] - [24]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [37] - [38] (Gummow and Hayne JJ).

[34]    The power exercised by the Minister in the present case was discretionary. The discretion was clearly enlivened by reason of Mr Muggeridge being unable, on any view of the facts, to satisfy the Minister that he passed the character test. The jurisdictional fact necessary to enliven the discretion clearly existed.

[35]    The alleged error is one affecting the process of reasoning adopted by the Minister in the exercise of a discretionary power. It is well settled that a discretionary power conferred by a statute is to be construed as subject to the condition that it be exercised reasonably. The principles to be applied are considered at length in the various judgments in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and in the decisions of the Full Court of this Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1. They may be briefly summarised as follows:

(1)    the power conferred under s 501(2) of the Act is implicitly confined by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J);

(2)    as Allsop CJ explained in Stretton (at [11]), the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation:

… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

(3)    the Court is to look to the reasons given for the decision to understand why the power was exercised as it was: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437;

(4)    as the Full Court explained in Singh, the process of review of legal unreasonableness "will inevitably be fact dependent". The Court continued (at [48]):

… That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as 'intelligible justification' must involve scrutiny of the factual circumstances in which the power comes to be exercised.

(5)    in a different review context, Deane J spoke of the requirement that a statutory tribunal act rationally and reasonably: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 - 368. His Honour's explanation of the content of that obligation applies equally to the Minister in the exercise of the power conferred by s 501(2) of the Act (at 367):

When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.

(6)    nevertheless, as Wigney J said (with respect correctly) in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (at [55]):

… allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].

74    Charlesworth J noted in Muggeridge that in the exercise of the discretion under s 501(2) of the Act the Minister must necessarily postulate what might occur in the future should the visa not be cancelled and should the applicant remain present in Australia (at [36]), but that it is necessary for the hypothesis underlying any decision to bear some rational connection to the evidentiary materials upon which the Minister is said to have relied.

75    There, the Minister made express findings that included that Mr Muggeridge had not committed any offence since 1991, that he was fully engaged in his community and a close family and that he had demonstrated rehabilitation. In view of those findings the Court found that it could not be concluded that the Minister implicitly found Mr Muggeridge to be a person having the propensities of a past offender to reoffend. Even if the starting point of the Minister's reasoning was an unstated presumption that Mr Muggeridge had a propensity to offend, the Court could not see how such an unstated concern could have survived the Minister's express conclusion, properly based on the weight of the evidence, that he had demonstrated rehabilitation.

76    The applicant submitted that the Minister's reasoning in this case revealed jurisdictional error in the manner discussed in Muggeridge. However, the facts in the present case are not directly analogous.

77    The Minister's reference (at [70]) to the abridged submission is, when read alone, concerning. However, as is revealed by other parts of the decision, the Minister was well aware that the applicant's contention was that he had severed ties with the Club. The Minister's consideration of the question of risk was not premised only on what may have been misplaced emphasis on use of the word 'ongoing' in the submission but on a number of matters (and I note that in oral submissions counsel for the applicant said that he did not put the submission on the basis that the Minister fell into error by misreading the submission).

78    The Minister's reasons are to be read in a practical common sense way: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272.

79    The Minister evidently considered that despite the applicant's claim that he had separated completely from the Bandidos Motorcycle Club, there was a risk that he would re-engage or be in contact with the Club. So much is implicit from the finding at [80] read as a whole. The Minister states that he could not dismiss the applicant's past association. The Minister noted the circumstances of the assault on the applicant in prison. The Minister noted (at [70]) the risk of reoffending remained whether the applicant was 'compelled to do so or otherwise', a reference that must in context be a reference to the potential for the applicant to offend in response to conduct of the Club members. The Minister's reference to a 'definitive separation' from the Club and other negative associations is expressed against the background of the Minister's notation of the Pathways Report that referred to the applicant remaining under threat from his former Club members and his 'goal' of staying away from gang life, and the reference in the lawyers' submission of 8 February 2016 to the difficulty attached to seeking to leaving the Club. It was apparent that the applicant's separation from the Club had not been tested outside the prison environment. The Minister had noted a lack of acknowledgment by the applicant of the influence of involvement in a motorcycle club on his conduct. Even accepting the applicant's representations as to separation, in circumstances where members of the Club made contact with the applicant directly or indirectly when he was in custody and in circumstances where (in marked contrast to the circumstances in Muggeridge) there has been no period of time outside of prison during which separation has been established or tested, it cannot be said that it was illogical or irrational for the Minister to take into account the possibility of the applicant resuming contact with the Club. It was open to the Minister to find that he could not dismiss that possibility.

80    In contrast to Muggeridge, there were reasons given by the Minister from which a logical basis can be seen for taking into account the possibility of the applicant resuming contact with the Club.

81    Different minds might reach different conclusions as to the likelihood of the applicant being exposed to contact with the Bandidos Motorcycle Club upon release into the community and the relevance of such exposure to the risk of harm to the Australian community, but that does not mean the Minister's views can be described as illogical or irrational. Whether or not another decision-maker would have reasoned in a similar way, there is no illogicality in the reasoning process adopted.

82    Ground 2 is not made out.

Conclusion

83    The application is dismissed with costs.

Associate:

Dated:    11 April 2019