FEDERAL COURT OF AUSTRALIA

Asaad v Minister for Home Affairs [2019] FCA 921

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application filed on 27 July 2018 is dismissed.

2.    The applicant is to pay the respondent’s costs to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    On 12 May 2016, Mr Asaad, the applicant, was found guilty by a jury in the District Court of Queensland of an offence under s 134.2(1) of the Criminal Code Act 1995 (Cth) of dishonestly obtaining by deception a financial benefit from a Commonwealth entity, namely Centrelink. This conviction was later confirmed on appeal in the Queensland Court of Appeal: see R v Asaad [2017] QCA 108 (Asaad). It was based upon Mr Asaad having, in 1992, successfully applied to the Hobart Court of Petty Sessions for a late registration birth certificate in the name of Michael Boghdadi Asaad, born on 24 April 1938 in New Norfolk, Tasmania. Then, in August 1998, he used that birth certificate as an identity document to obtain an Australian passport in the same name. Lastly, he used that passport to apply for, and obtain, Centrelink benefits, which he received between 25 March 2002 and 24 June 2009, in the total sum of $89,161.44.

2    Based upon the abovementioned conviction and his criminal history more broadly, on 8 February 2018, acting under s 501(2) of the Migration Act 1958 (Cth) (the Act), the Minister for Home Affairs, the respondent, cancelled Mr Asaad’s Class BS Subclass 801 Partner (Residence) visa. In part, the Minister did so because he reasonably suspected that Mr Asaad did not pass the character test as defined in s 501(6) of the Act. In this proceeding, Mr Asaad seeks judicial review of this cancellation decision.

GROUNDS OF REVIEW

3    Three grounds of review are set out in Mr Asaad’s amended originating application. They are:

1.    The Respondent’s decision dated 8 February 2018 (“the Respondent’s Decision”) is unlawful and vitiated with error as the Respondent failed to consider the legal and practical consequence of the Respondent’s Decision arising from the effect of ss. 189, 196 and 198 of the Migration Act 1958.

…

2.    Further or in the alternative, the Respondent’s Decision is unreasonably harsh having regarding the Applicant’s age and antecedents.

…

3.    Further or in the alternative, the Respondent’s Decision is unreasonable and vitiated with error in finding that the warning issued by a delegate of the Respondent on 20 February 2012 in relation to a Notice of Intention to Consider Refusal of the Applicant’s Bridging Visa E lodged on 22 November 2011 had been contravened by the Applicant maintaining that he was born in Australia.

(Bolded terms in original) (Errors in original)

4    Mr Asaad provided particulars in support of ground of review 1 and 2 above, as follows:

[Ground 1]

Particulars

a.    The Applicant is an eighty (80) year old male who suffers from diabetes, arthritis, dental problems (including an infected tooth as well as bone and gum disease), an abdominal hernia complicated by a hydrocele and heart conditions including that he suffered a heart attack and takes various prescription medications. The practical consequence of which being that the Applicant may not be able to be removed from Australia as soon as reasonably possible if the Respondent’s Decision is affirmed.

b.    The Applicant may be stateless and may not be able to be lawfully removed from Australia. The legal consequence of which being that the Applicant may not be able to be removed from Australia as soon as reasonably possible if the Respondent’s Decision is affirmed.

c.    Despite the Applicant making reasonable enquiries to the Canadian and Egyptian Embassies, the Applicant has been unable to confirm whether either of these countries recognise him as a citizen or resident capable of returning to those countries.

d.    Letter from Irish Bentley Lawyers to Clayton Utz Lawyers dated 22 June 2018.

e.    The Minister failed to properly consider the statutory consequence of s. 195A of the Migration Act 1958.

[Ground 2]

Particulars

a.    The Applicant is an eighty (80) year old male who suffers from diabetes, arthritis, dental problems (including an infected tooth as well as bone and gum disease), an abdominal hernia complicated by a hydrocele and heart conditions including that he suffered a heart attack and takes various prescription medications.

b.    The Applicant is the father of two (2) minor Australian citizen children (Samir Boghdadi Asaad born 23 October 2002 and Charles Boghdadi Asaad born 17 December 2003).

c.    Samir Boghdadi Asaad suffers from a severe intellectual disability including a speech and language disorder, autism spectrum disorder, anxiety and epilepsy which causes severe seizures.

d.    The Minister failed to properly consider the statutory consequence of s. 195A of the Migration Act 1958.

FACTUAL BACKGROUND

5    Mr Asaad’s date and place of birth are contentious. In this proceeding, Mr Asaad continued to claim that he was born on 24 April 1938 at the Cottage Hospital, New Norfolk, Tasmania. This claim was based on the late registered birth certificate mentioned above which he obtained in Tasmania in 1992.

6    However, it is affected by certain admissions Mr Asaad made during his trial before the District Court. In Asaad, Fraser JA recorded those admissions as follows (at [5]):

“1.    [Mr] Asaad has used the name Rick Michaels, date of birth 25 October 1944.

2.    On 16 December 1985, a person using a passport in the name Rick Michaels arrived in Australia on a QANTAS flight from Canada arriving in the name Rick Michaels (‘Michaels’).

3.    The person using the passport in the name Rick Michaels arrived in Australia using a Canadian travel document and a ‘V10’ Australian tourist Visa, and was recorded as having been born in Egypt.

4.    The incoming passenger card relevant to that arrival, records the particulars of Rick Michaels as follows:

a)    Date of birth: 25 October 1944;

b)    Born: Egypt;

c)    Canadian citizen;

d)    Occupation: Director;

e)    Travelling on passport number: KF524773;

f)    Arrived on a QANTAS flight;

g)    Intended address of Sheraton Hotel Sydney, NSW; and

h)    Intended stay in Australia was for 3 months.

5.    On 6 February 1986, [Mr] Asaad indicated to a government agency in NSW that his particulars were:

a)    Name: Rick Michaels;

b)    Date of birth: 25 October 1944;

c)    Occupation: Director[;]

d)    Born: Canada;

e)    Held a Canadian residential address;

f)    He had arrived on a QANTAS flight in December 1985;

6.    On 31 January 1991, a birth registration form was completed for Michael Boghdadi Asaad (Jnr), Mr Asaad’s son, who had been born that day. The registration form lists the father and informant as:

a)    Michael Asaad;

b)    Age 55;

c)    Occupation: Director;

d)    Born: Heliopolis, Egypt;

e)    Address: 187 Williams St Granville, NSW.”

7    The evidence at trial bearing on the connection between Rick Michaels and Mr Asaad was developed later in Asaad (at [39]) in the following terms:

The following uncontroversial facts supplied strong support for the Crown case. In circumstances in which on 16 December 1985, a person using a Canadian passport in the name Rick Michaels arrived in Australia on a Qantas flight from Canada and the incoming passenger card relevant to that arrival recorded particulars of Rick Michaels, including that he was a director, a Canadian citizen, and born in Egypt on 25 October 1944:

(a)    Less than two months later, the appellant’s indication to a Government agency in New South Wales revealed that his particulars matched those of Rick Michaels as to name, date of birth, occupation, month of arrival, and that he arrived by a Qantas flight, and he also identified his birthplace as Canada and indicated that he held a Canadian residential address.

(b)    More than 12 months before the appellant applied to the Hobart Court of Petty Sessions for a late registration birth certificate recording that he had been born in Tasmania, a birth registration form for his son born on 31 January 1991 signed by the appellant identified the father as Michael Asaad and gave his birthplace as Egypt.

(c)    The birth certificate upon which the appellant relied in support of his application for an Australian passport was not issued until May 1992, after the appellant applied on 24 April 1992 for a late registration birth certificate recording that he had been born on 24 April 1938.

(d)    Although the register of baptisms maintained at the St Matthew’s Church, New Norfolk Parish, Tasmania recorded baptisms in that church of children who resided in Lachlan, New Norfolk, the register did not include any record of a baptism in the name of Michael Boghdadi Asaad on 21 February 1939 (the date of baptism stated in the partly completed baptism certificate faxed to the employee of the Anglican Diocese of Tasmania after numerous telephone calls to her from the appellant).

(e)    Attributing full weight to the factors affecting the reliability of any conclusion based upon the comparison of the photographs in the passports, that evidence revealed a consistency of appearance between the appellant and Rick Michaels.

8    After reviewing all of the evidence submitted at the trial, Fraser JA concluded in Asaad (at [43]) that:

Upon a review of the record of the trial, the evidence proved beyond reasonable doubt that the appellant obtained payments from the Commonwealth by the deception of intentionally creating and using the false identity Michael Boghdadi Asaad; he intentionally induced the Commonwealth to believe that this false identity was his true identity, whilst believing that his conduct in doing so was deceptive; and the appellant thereby dishonestly obtained a financial advantage from the Commonwealth. The “natural limitations” … that apply where an appellate court proceeds wholly on the record are not significant for those conclusions. The relevant evidence in the Crown case was not contradicted by other evidence and was inherently credible. Because the evidence adduced by the Crown proved that the appellant was guilty of the offence charged against him beyond reasonable doubt no substantial miscarriage of justice actually occurred, notwithstanding the suggested irregularity in the trial.

(Footnote omitted)

9    In his decision, the Minister relied on Mr Asaad’s history as described by Fraser JA in Asaad and on a decision of the Administrative Appeals Tribunal (the Tribunal) made in 2017 (see at [15] below) to conclude that Mr Asaad was not born in Australia and is not an Australian citizen.

10    Putting aside that issue, the following aspects of the factual background to this proceeding are common ground. In 1986, Mr Asaad married an Australian citizen in the United States of America. This marriage was recognised in Australia in 1998.

11    Mr and Mrs Asaad have seven children, each of whom is an Australian citizen and two of whom are minors (Samir (known as Sam) aged 15 and Charles aged 14 at the time of the Minister’s decision). Further, one of those minor children, Sam, suffers from severe autism, moderate to severe intellectual disability, epilepsy and significant attention deficit hyperactivity disorder.

12    On 18 November 2011, relying on his criminal history to that time, Mr Asaad was placed in immigration detention under s 189 of the Act. About three weeks later, on 7 December 2011, the Minister notified him that he intended to refuse his application for a Bridging E (Class WE) visa. However, on 20 February 2012, as a result of submissions made by Mr Asaad’s former lawyer, a delegate of the Minister decided not to pursue that course, but instead issued a warning to Mr Asaad about the consequences should he re-offend in the future. This warning will be referred to hereafter in these reasons as “the 2012 warning”.

13    On 12 August 2013, Mr Asaad was granted a Class BS Subclass 801 Partner (Residence) visa. Importantly for this matter, he continued to hold that visa until the time the Minister made the cancellation decision which is presently under challenge.

14    As is already mentioned above, on 12 May 2016, Mr Asaad was convicted of dishonestly obtaining a financial benefit from a Commonwealth entity and was sentenced to a period of three years and six months imprisonment. That conviction and sentence were both upheld in Asaad.

15    On 15 November 2017, the Tribunal affirmed a decision of the Social Security Appeals Tribunal made on 31 March 2014 which, in turn, affirmed a decision of an officer of Centrelink to refuse Mr Asaad’s application for an age pension (the AAT decision). In that decision, the Tribunal concluded that Mr Asaad was not born in Australia and that he therefore did not meet the residency requirements for such a pension.

16    On 20 December 2017, a notice of intention to consider cancellation of his Partner (Residence) visa was sent to Mr Asaad. In response, he provided a set of submissions and a completed Personal Circumstances Form.

17    As is already mentioned above, on 8 February 2018, the Minister made the decision which is the subject of the present proceeding.

MR ASAAD’S CRIMINAL HISTORY

18    In the statement of reasons which he provided for his decision (the Reasons), the Minister summarised Mr Asaad’s criminal history as follows. First, he set out the details of Mr Asaad’s 2016 conviction in the District Court of Queensland. Since the details of that conviction are already adequately recorded above, it is unnecessary to repeat them. Next, the Minister set out the details of the convictions that had been recorded against Mr Asaad since 1993, for which he had been sentenced to a term of imprisonment, as follows:

Mr ASAAD’s earliest criminal conviction in Australia was recorded on 12 November 1993. On this date, the District Court of New South Wales convicted Mr ASAAD of the offence of Supply commercial quantity of prohibited drug, for which he was sentenced to imprisonment for six years (four years and six months non-parole period), and two counts of Supply prohibited drug for which he was sentenced on each charge to concurrent imprisonment for three years …

On 19 May 2004, Mr ASAAD was convicted in the District Court of Queensland of the offences of Fraud – dishonest application of property of another with a circumstance of aggravation and Attempted to dishonestly apply to own use property belonging to another with a circumstance of aggravation. He was sentenced on each charge to 12 months imprisonment, wholly suspended for three years …

[O]n 11 May 2005, the Magistrates Court of Queensland convicted Mr ASAAD of Undischarged bankrupt prepare to leave Australia without consent, for which he was sentenced to three months imprisonment and released forthwith on entering a recognisance without surety, to be of good behaviour for three years. He was also convicted of Carry on business whilst undischarged bankrupt and ordered to perform 50 hours of community service …

On 29 May 2009, in the District Court of New South Wales, Mr ASAAD was convicted of Fraudulently omit to account money. He was sentenced to 18 months imprisonment, with a non-parole period of nine months, and ordered to pay compensation of more than $53,000 …

On 2 June 2010, Mr ASAAD was convicted in the District Court of Queensland of four counts of Bankrupt obtaining goods or service without disclosing bankruptcy, for which he was sentenced on each count to 18 months imprisonment, to be released after serving nine months, later reduced on appeal to six months. He was subject to a bond to be of good behaviour for three years …

Also on 2 June 2010, Mr ASAAD was found to have breached the suspended sentence imposed on 19 May 2004. He was ordered to serve the whole of the 12 month term of imprisonment, also with a non-parole period of nine months, later reduced on appeal to six months …

(Italics in original; emphasis added; footnote omitted)

19    In addition, the Minister recorded two other “court outcomes” that did not result in a prison sentence. They were:

On 24 April 2007, the District Court of Queensland found that Mr ASAAD breached the suspended sentence imposed on 19 May 2004 and he was sentenced to the rising of the court … he was later required to serve this sentence. On 15 September 2008, a Magistrates Court convicted Mr ASAAD of Failure to appear in accordance with undertaking, with no penalty imposed …

(Emphasis added)

20    Finally, the Minister briefly summarised Mr Asaad’s Federal Bureau of Investigation (FBI) criminal history in the United States of America between 1971 and 1990 as including:

Bad checks; Non-sufficient funds; Passing fictitious checks; Bank fraud & embezzlement; False statement on credit card application; False statement to Federal insurance bank; Probation violation; Grand theft; Uttering worthless documents; and File fraudulent insurance claim.

(Italics in original)

21    At this point it is worth noting that Mr Asaad accepts that he has a substantial criminal history in Australia as defined in s 501(7) of the Act. Nonetheless, he claims that he “has demonstrated a clear insight into his offending and that his last occasion of offending conduct took place in or around 2010” (footnote omitted). He also implicitly denies the FBI criminal history attributed to Mr Rick Michaels (also identified as Farouk Assaad) summarised above.

RELEVANT LEGISLATIVE PROVISIONS

22    Relevantly, ss 501(2), (6) and (7) of the Act provide:

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the 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)) …

…

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

…

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

23    It is also appropriate to set out the following provisions of the Act upon which Mr Asaad relied in connection with his first ground of review together with a related provision, s 195A:

189    Detention of unlawful non-citizens

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

…

196    Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

(2)    To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

(4)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

(4A)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

(5)    To avoid doubt, subsection (4) or (4A) applies:

(a)    whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b)    whether or not a visa decision relating to the person detained is, or may be, unlawful.

(5A)    Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

(6)    This section has effect despite any other law.

(7)    In this section:

visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).

…

198    Removal from Australia of unlawful non-citizens

Removal on request

(1)    An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

…

195A    Minister may grant detainee visa (whether or not on application)

…

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

…

THE MINISTER’S REASONS

24    The Minister began his Reasons by noting the relevant provisions of the Act set out above, Mr Asaad’s abovementioned conviction in the District Court of Queensland in May 2016 and his conclusion that he had a reasonable suspicion that Mr Asaad did not meet the character test as defined in the Act (Reasons at [4]–[8]). The Minister then described the discretion he had to exercise in the following terms (Reasons at [9]):

Having found that Mr ASAAD does not pass the character test and having assessed the information set out in the submission and attachments, I considered whether to exercise my discretion to cancel Mr ASAAD’s visa, taking into account factors that I considered weighed against and in favour of cancelling Mr ASAAD’s visa. In making my decision, I was mindful that Australia has a sovereign right to determine whether non-citizens who are of character concern should be allowed to remain in Australia.

25    He then turned to consider Mr Asaad’s claim to be an Australian citizen, the details of which have already been summarised above. After considering the judgment in Asaad and the AAT decision, the Minister concluded (Reasons at [18]):

I have considered the claims made by Mr ASAAD and the material before me including the findings of the Courts and the AAT and criminal history provided by the FBI. I do not accept Mr ASAAD’s claims in this regard and I find that he was not born in Australia and is not an Australian citizen.

26    Next, the Minister considered “the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens”. For the purposes of that consideration, the Minister set out an extensive summary of Mr Asaad’s criminal history, most of which has already been extracted above (see at [18]–[20]). On that issue, he concluded (Reasons at [38]):

Having considered the circumstances and nature of Mr ASAAD’s offending, involving repeated fraudulent conduct and an historical incident of supplying a commercial quantity of a prohibited drug, and the various court dispositions of up to six years imprisonment, I concluded that Mr ASAAD’s criminal conduct, in its totality, is very serious.

(Emphasis added)

27    Thereafter, the Minister considered whether Mr Asaad presented a risk to the Australian community, having regard to “any mitigating or causal factors in his offending” and any steps taken by him “to reform and address his behaviour” (Reasons [39]–[58]). After considering Mr Asaad’s submissions on that issue at some length and a number of related matters, including the 2012 warning, he concluded as follows (Reasons at [56]–[58]):

I formed the opinion that Mr ASAAD has demonstrated a longstanding disregard of Australian and international laws, both immigration and criminal.

I am satisfied that Mr ASAAD is unlikely to commit further offences relating to the supply of prohibited drugs, given the time elapsed since his only drug supply offence in Australia. However, given Mr ASAAD’s lengthy and repetitive offending history, since 1971, his repeated and entrenched dishonesty and what I consider to be his marked lack of respect for the law, I find there is an ongoing likelihood he will reoffend.

I considered the nature of the harm to the Australian community, should Mr ASAAD engage in further criminal conduct. In the event that Mr ASAAD engaged in further fraud-related offending, I consider that the Commonwealth and/or individuals stand to suffer financial losses, which may be significant. In the case of losses to individuals, I am satisfied that this has the potential to cause practical and financial hardship, and may have psychological sequelae.

(Emphasis added)

28    The best interests of Mr Asaad’s two minor children was the next issue to which the Minister turned his attention (Reasons at [59]–[88]). On that issue, the Minister had particular regard to Sam’s medical conditions, specifically that he was diagnosed with autism in either 2005 or 2007. The Minister’s consideration of that matter included the following:

(a)    A medical assessment completed when Sam was nine, noting that, at that time, “Sam was assessed as having communication skills equivalent to a child between nine and 11 months and adaptive skills equivalent to a child aged from one to 43 months old”. The assessment also noted that Sam needed considerable assistance to compensate for these difficulties in the areas of communication, behavioural management and calming techniques to manage heightened emotions.

(b)    A letter dated 6 December 2011 written by Dr Kwan who, at that time, was seeing Mr Asaad and Sam approximately weekly. In that letter, Dr Kwan noted that in most cases of autism, the child will become more attached to one parent and that, in Sam’s case, that parent was Mr Asaad. Dr Kwan also noted the improvement in Sam’s attention span as a result of Mr Asaad’s efforts and concluded that the absence of Sam’s father would be “of the utmost detriment to his ability to enunciate words and sentences” (italics in original) and noted that Sam had regressed in the short time his father had been away.

(c)    A statutory declaration made by Mrs Antoinette Asaad on 12 December 2011 when Mr Asaad was in immigration detention in which Mrs Asaad detailed a typical weekly pattern of care for Sam.

(d)    Information submitted by Mr Asaad in January 2018 regarding Sam’s conditions and progress.

29    On this issue, the Minister concluded that (Reasons at [84]):

Notwithstanding this, having regard to the information before me, in particular the independent evidence of medical specialists, I find that Mr ASAAD, through his persistent and dedicated interventions, has assisted his son’s progress. In the event that Sam and his mother remain in Australia, cancellation of Mr ASAAD’s visa, and his resultant departure, would prevent him from caring for Sam and from applying the therapeutic plans designed for Sam’s benefit. I also accept that Sam is very attached to his father and would suffer emotionally through further physical separation. I consider that Sam’s medical and psychological conditions, which include Autism Spectrum Disorder and moderate to severe or severe intellectual disability, will adversely affect his ability to maintain a relationship with his father by indirect means, such as via telephone or Skype.

(Emphasis added)

30    As for his son Charles, the Minister concluded that the cancellation of Mr Asaad’s visa would likely prevent their frequent direct contact and that, in the event that Charles remained in Australia and Mr Asaad was removed from the country, their separation would be likely to cause emotional distress to Charles (Reasons at [86]–[87]). Accordingly, the Minister concluded that it was in the best interests of Sam and Charles that Mr Asaad’s visa not be cancelled (Reasons at [88]).

31    While Mr Asaad did not make any submissions regarding the expectations of the Australian community, the Minister considered that matter from the perspective of the potential hardship that may be caused to Mr Asaad’s wife and seven Australian children, most particularly his son Sam (Reasons at [89]–[91]). The Minister accepted that this hardship might attract some sympathy within the Australian community but that, overall, the expectation was that non-citizens should comply with Australian law whilst they are within the country. Ultimately, given Mr Asaad’s criminal history and the serious nature of some of his offending, the Minister concluded that the majority of the Australian community would expect that Mr Asaad should not continue to hold a visa (Reasons at [91]).

32    Next, while noting that Mr Asaad did not make any claims in relation to Australia’s international non-refoulement obligations, the Minister nonetheless considered those obligations and the possibility that Mr Asaad may be stateless (Reasons at [92]–[96]). Since the Minister’s treatment of this issue is central to Mr Asaad’s grounds of review, it is appropriate to set out the following paragraphs of the Reasons verbatim:

93.    I considered the possibility that Mr ASAAD may be stateless, with no right to enter or reside in any country, given the lack of certainty concerning his country of birth and/or citizenship.

94.    I understand that if I decide to cancel Mr ASAAD’s Class BS Subclass 801 Partner (Residence) visa, he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa.

95.    If Mr ASAAD is stateless, I am aware that the statutory consequence of a decision to cancel his visa is that, as an unlawful non-citizen whose stateless status means that it is not reasonably practicable to remove him from Australia, he must continue to be detained in accordance with ss189 and 196 of the Act, unless granted a visa by me under s195A of the Act.

96.    I have had regard to the possibility that Mr ASAAD is stateless, and I have carefully weighed these factors against the seriousness of Mr ASAAD’s criminal offending in the making of my decision whether to cancel his Class BS Subclass 801 Partner (Residence) visa.

33    Thereafter, the Minister reviewed, in some detail, the nature and extent of Mr Asaad’s existing ties to Australia, including, in particular, the following aspects (Reasons at [97]–[122]):

(a)    Mr Asaad first arrived in Australia as an adult and had resided here since 1990;

(b)    Mr Asaad was married to an Australian citizen to whom he had seven Australian citizen children;

(c)    Mrs Asaad had stated that the periods of separation from her husband were not by choice and that she found the time away from her husband to be “extremely difficult” (italics in original);

(d)    As well, Mrs Asaad indicated that she required her husband’s help in caring for their disabled child;

(e)    Mr Asaad had engaged in business in Australia; and

(f)    Mr Asaad played an important role in caring for his disabled son, as well as his other children, and, through his familial relationships, had made some positive contributions to the Australian community.

34    On this matter, the Minister concluded that the consequences of Mr Asaad’s removal from Australia included:

(a)    if Mrs Asaad remained in Australia, she would be prevented from having frequent and direct contact with her husband and lose his emotional and practical support in caring for their disabled child. On the other hand, if Mrs Asaad left Australia with her husband, she would lose the frequent and direct contact with her adult children and family in Australia. She would also be required to establish herself in a new country without private support (Reasons at [105]–[106]);

(b)    Mr Asaad would be separated from his five adult children in Australia and they would lose frequent and direct contact which may affect the closeness of their relationships and cause them emotional hardship (Reasons at [109]);

(c)    any children who were financially dependent on Mr Asaad may suffer some financial hardship (Reasons at [110]);

(d)    Mr Asaad’s wife and/or adult children may suffer anxiety with regards to Mr Asaad’s health and prosperity (Reasons at [111]); and

(e)    members of Mr Asaad’s church and other social groups would be prevented from having regular contact with him which may cause emotional hardship to them (Reasons at [113]).

35    Having regard to the uncertainty surrounding Mr Asaad’s citizenship, the Minister considered a number of other impediments he would face if he were found not to be stateless and were removed from Australia (Reasons at [123]–[132]). They included his medical conditions, specifically his diabetes, arthritis, dental problems, a hernia complicated by a hydrocele and an unspecified heart condition associated with a heart attack for which he was prescribed medications.

36    The Minister also noted that, given Mr Asaad’s age and medical conditions, it would be unlikely that he would easily obtain paid employment in the future and, in the event that he did not have any private assets, his removal from Australia may cause him financial hardship which, in turn, may hinder his access to medical treatment (Reasons at [130]).

37    On this matter, given the duration of Mr Asaad’s residence in Australia, the Minister accepted he would experience “significant difficulties establishing himself in another country”. Furthermore, if his family decided not to leave Australia with him, the Minister accepted that the resulting physical separation, as well as his concern for their wellbeing, especially for that of his disabled child Sam, would likely cause Mr Asaad “to experience anxiety and social isolation amounting to emotional hardship” (Reasons at [132]).

38    Ultimately, in the conclusion section of his Reasons ([133]–[140]), the Minister decided to exercise his discretion to cancel Mr Asaad’s visa. In reaching that conclusion, he expressed the view that the risk Mr Asaad posed to the Australian community outweighed the various factors telling in his favour. Specifically, the Minister found (Reasons at [138]):

… the above consideration outweighed the countervailing considerations in Mr ASAAD’s case, including the best interests his two minor sons treated as a primary consideration, the possibility that Mr ASAAD is stateless, and the impact on his Australian citizen wife and adult children. I have also considered his lengthy residence in Australia and the positive contributions made by Mr ASAAD to the Australian community, such as they are.

(Errors in original)

39    The “above consideration” to which the Minister referred in this statement (Reasons at [137] and [139]) included:

137    I find that the Australian community could be exposed to serious harm should Mr ASAAD re-offend in a similar fashion. Having found that the likelihood of Mr ASAAD re-offending is ongoing, I could not rule out the possibility of further offending by Mr ASAAD. The Australian community should not tolerate the risk of further harm posed by Mr ASAAD.

…

139    I am cognisant that where serious harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. In reaching my decision, I concluded that Mr ASAAD represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

THE CONTENTIONS

40    Before summarising Mr Asaad’s submissions, it is important to record that, while his initial originating application and his written submissions were prepared by his erstwhile lawyers, Mr Asaad was responsible for the balance of his written submissions and all of his oral submissions. On the first ground of review, Mr Asaad outlined the basis upon which he claimed to be stateless as follows:

(a)    he is deemed to be an unlawful non-citizen because he ceased to be a lawful non-citizen under ss 13 and 14 of the Act;

(b)    he has been detained under s 189(1) of the Act and is currently in immigration detention;

(c)    he will remain in immigration detention until one of the following events occur:

(i)    he is removed from Australia under ss 198 or 199;

(ii)    an officer commences dealing with him under s 198AD(3);

(iii)    he is deported under s 200; or

(iv)    he is granted a visa;

(d)    the Minister could not plausibly form a view that it is in the public interest to grant him a visa under s 195A of the Act; and

(e)    because of the above, he is in the position where he will be detained indefinitely.

41    I interpolate to observe that, given the circumstances of Mr Asaad’s detention outlined earlier in these reasons, it is difficult to see how s 199 (removing dependants of non-citizens), s 198AD(3) (taking an unauthorised maritime arrival to a regional processing centre) or s 200 (deportation of certain non-citizens) has any application to him. Furthermore, the conclusion in (e) above ignores the possibility that Mr Asaad may be removed to Canada or Egypt, a possibility canvassed by him in his particulars to this ground of review (see at [4(c)] above).

42    Putting aside this difficulty, with respect to his claim he is stateless, Mr Asaad sought to distinguish his case from that of Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 (Al-Kateb). To that end, he submitted that, unlike Mr Al-Kateb, he had lived in Australia for an extended period of time, he had an Australian family and the Minister had identified that he may be stateless and, as such, would be incapable of being removed from Australia. Additionally, he submitted that there was no evidence that the Minister had taken any steps to ascertain whether he could be removed from Australia.

43    Further, on this ground (as anticipated by the Minister below: see at [49]), Mr Asaad also sought to rely upon the decision in Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29; [2016] FCAFC 61 (Cotterill). He claimed he was in a similar position to the applicant in that case because the Minister had “overlooked the possibility that a practical consequence of the [d]ecision is that [he] could not practically be removed from Australia”. He further contended that the Minister “failed to give proper consideration [to] the inability to deport or remove [him] due to his stateless status by consequence of his failure to make independent inquiries or otherwise assist [him] with his inquiries regarding his country(ies) of potential return” (italics in original).

44    On his second ground of review, in addition to relying on the above submissions, Mr Asaad submitted that, by failing to make reasonable inquiries with the country or countries to which he may be removed, or otherwise failing to assist him to make such reasonable inquiries, the Minister acted with unreasonable harshness.

45    On his third ground of review, Mr Asaad submitted that the Minister’s decision was unreasonable and that, based on the 2012 warning, he should be estopped from making this cancellation decision. On the former aspect, he relied on the judgments in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li), Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1, as summarised in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 (Stretton), and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 (Eden), which summarised the principles relevant to legal unreasonableness following Stretton, Singh and Li, to submit that the Minister’s decision suffered from “an underlying jurisdictional error in the decision-making process and is thus unreasonable and ought to be quashed”.

46    On the latter aspect, Mr Asaad referred to the judgment of the High Court in Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 and the observations of the High Court in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 and submitted that, while the Minister’s decision was not a judicial decision, it was predicated on submissions and legal argument and, since there had not been a material change in his circumstances since the 2012 warning, nor any further offending conduct after that date, the Minister should be estopped from acting contrary to the delegate’s 2012 decision to take no further action to cancel his visa.

47    At the hearing of his application, Mr Asaad appeared in person and, as has already been mentioned above, represented himself. Near the commencement of the hearing, the Minister’s counsel raised a concern that the estoppel issue above, which had been canvassed in Mr Asaad’s written submissions, had not been raised in any of his three grounds of review. She pointed out that that was so despite the fact that Mr Asaad had obtained leave to amend his originating application shortly before the hearing. Since I considered the estoppel issue involved a narrow legal point, I allowed Mr Asaad to pursue it. However, he was not permitted to rely upon a body of additional evidence which he sought to place before the Court. I rejected that application because the evidence concerned related to events that post-dated the Minister’s decision, for example, medical reports concerning Mr Asaad’s current state of health and that of his son, Sam.

48    Mr Asaad then made a number of oral submissions, the substance of which was as follows:

(a)    first, he claimed that officers of the Minister’s department had taken account of the 2012 warning in December 2016 when he was released on parole and no steps were taken with respect to his May 2016 conviction until about 12 months later, following the publication of a newspaper article about that conviction in the Daily Telegraph in Sydney. To that time, he claimed he had met all the requirements of the parole authorities;

(b)    secondly, he challenged the Minister’s conclusion that he was an ongoing risk to the Australian community claiming that he had not committed any violent crimes;

(c)    thirdly, he claimed that the Minister had erred in concluding that he had committed offences while he was overseas and he claimed he first offended in 1992; and

(d)    fourthly, he repeated his claim that he was an Australian citizen and he claimed that the Minister did not believe his claim.

49    Before turning to the Minister’s contentions, it should be noted that, because Mr Asaad failed to file his written submissions until just before the hearing commenced, the Minister was required to file his written submissions before Mr Asaad filed his. Accordingly, the Minister’s counsel made an assumption that, in his first ground of review, Mr Asaad would rely on the judgments in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 (NBMZ) and in Cotterill. Acting on that assumption, the Minister sought to distinguish Mr Asaad’s case from Cotterill, contending that, “[u]nlike Cotterill (at [117]) there [were] no submissions or even a suggestion in the response to the [notice of intention to consider cancellation] provided by the [a]pplicant that he may not be fit to travel, on the basis of” his medical conditions. In the absence of such a claim, the Minister submitted, there was no need for him to consider whether Mr Asaad’s medical conditions may result in his indefinite detention.

50    As for Mr Asaad’s contention that the Minister had not considered his claims that his status as a stateless person may result in his indefinite detention, the Minister pointed to [95] of his Reasons where, so he contended, that claim was expressly considered. Finally in respect of Mr Asaad’s first ground of review, the Minister contended that particulars (c) and (d) were not before him at the time of his decision and, as such, they could not give rise to a jurisdictional error.

51    On the second ground of review, the Minister relied on the “area of ‘decisional freedom’ or ‘genuinely free discretion’ within which reasonable minds might differ” (italics in original) (footnotes omitted) highlighted in Stretton at [7]. Further, the Minister contended that the discretion under s 501(2) of the Act was “unfettered in its terms” (italics in original), citing Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [126]. Finally, the Minister contended that Mr Asaad’s particulars demonstrated that he was simply seeking to obtain a merits based review of his decision and, as such, no jurisdictional error could be made out.

52    On the third ground of review, the Minister contended that Mr Asaad had wrongly characterised his reasons with respect to the 2012 warning. On that issue, he submitted that he had proper regard to the matters put to him by Mr Asaad’s lawyer and he was entitled to reach the conclusion that Mr Asaad had “demonstrated a longstanding disregard of Australian and international laws” (Reasons at [56]) and that his “repeated and entrenched dishonesty”, together with his “marked lack of respect for the law”, supported his conclusion that there was “an ongoing likelihood he will reoffend” (Reasons at [57]).

53    The Minister addressed the estoppel issue in oral submissions. He contended that he was entitled to take account of a new relevant fact, namely the 12 May 2016 conviction, and he was therefore not estopped by the 2012 warning, relying on the Full Court decision in Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 (Parker).

54    The Minister also addressed two other points in oral submissions. First, he contended that he was entitled to rely upon the conclusions of the Queensland Court of Appeal in Asaad and the Tribunal decision to reach the conclusion that Mr Asaad was not born in Australia and that he was not an Australian citizen. Secondly, he contended that, in his consideration of harm to the Australian community, he was entitled to take account of the financial loss and associated psychological distress caused by Mr Asaad’s dishonesty.

THE SUPPLEMENTARY CONTENTIONS ON RISK

55    Subsequent to the hearing, Mr Asaad and the Minister were given leave to provide supplementary written submissions on the issue of the risk to the Australian community.

56    In his submissions, first, Mr Asaad noted that the Minister expressly considered the issue of “risk” in his Reasons. He then identified what he claimed were the conflicting views on that issue in the judgments of Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367; [2015] FCAFC 54 (Moana) and Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 (Huynh).

57    Mr Asaad also used this leave to make further submissions on his claim that the Minister had erred by failing to consider that he was an Australian citizen and held an Australian passport. He also contended that the Minister had committed a further error by wrongly relying on the conclusions of the Queensland Court of Appeal and the Tribunal to reach the conclusion that he was not born in Australia. He claimed that this was “not sufficient or lawful evidence upon which the Minister could have based [his] conclusions”. He submitted that was so, for the following reasons:

(a)    section 7 of the Australian Passports Act 2005 (Cth) provides that an Australian citizen is entitled to hold an Australian passport and s 8 provides that the Minister must be satisfied of a person’s citizenship and identity when granting a passport to a person. Accordingly, there was a presumption at the time he was granted an Australian passport that the Minister had formed a favourable view of his citizenship and identity;

(b)    at the time of his birth in 1938, Australian nationality was determined by the common law and the Nationality Act 1920 (Cth). The term “natural-born British subjects” was defined by s 6 of that Act to be a person who was born within their Majesty’s dominions or, if born outside, born to a father who was a British subject. He contended that the Queensland Court of Appeal and Tribunal decisions did not address whether he had obtained Australian citizenship by one of these means;

(c)    in relying on the decisions of the Queensland Court of Appeal and the Tribunal, the Minister unlawfully delegated his power to those bodies to determine whether he was an Australian citizen and whether s 501 of the Act applied to him; and

(d)    finally, he relied upon what Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 45 that “[i]t would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading”.

I interpolate to reiterate my observations above that these submissions extended well beyond the issue upon which leave was granted, namely risk to the Australian community.

58    In his supplementary submissions, the Minister began by noting that, in his amended originating application, Mr Asaad had not alleged that he had committed jurisdictional error by failing to consider “risk to the community” as a mandatory relevant consideration. Accordingly, the Minister contended that Mr Asaad would require leave in order to raise this as a ground of review. The Minister opposed such leave being granted.

59    Even assuming that leave were to be granted, the Minister contended that “risk” to the community was not a mandatory relevant consideration. Nonetheless, he accepted that there was an “unresolved tension” (italics in original) on this point between the views expressed in Moana at [66] and those expressed in Huynh at [72] and [74]. Finally, he submitted that, even if risk to the community was such a mandatory consideration, he duly considered that matter in his Reasons. In this respect, he contended that the authorities do not require such risk to be considered in any particular way and, consequently, no jurisdictional error had been made out.

CONSIDERATION

The relevant principles

60    The principles relating to legal unreasonableness which arise in grounds of review 2 and 3 are relatively well-established. As Mr Asaad has pointed out in his submissions, they are conveniently summarised in Eden at [58]–[65], as follows:

58    First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Singh at [43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).

59    Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).

60    Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at [27]-[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).

61    This appeal is primarily concerned with whether the outcome of the Minister’s exercise of power was legally unreasonable. That said, some of the primary judge’s reasons for concluding that the decision was unreasonable, and some of the appeal grounds and submissions, are directed at the Minister’s reasons and alleged errors in the decision-making process.

62    Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105] (Gageler J); Stretton at [11] (Allsop CJ).

63    Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]-[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at [42].

64    Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).

65    Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

(Italics in original)

61    And, as the Minister has pointed out in his submissions on the issue of estoppel, which arises in ground of review 3, in Parker, Griffiths and Perry JJ held (at [36]–[38]) (Mortimer J agreeing on this aspect at [67] and [71]–[73]) that the power to cancel a visa under s 501(2) of the Act can be exercised notwithstanding an earlier decision not to cancel the visa under that section, if a relevant new fact emerges that bears upon the exercise of the power. While their Honours relied upon s 33(1) of the Acts Interpretation Act 1901 (Cth), their conclusion is consistent with the observations of Mason CJ in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 17 as follows:

The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power …

Ground of review 1 – the statelessness issue

62    It is convenient to begin the consideration of this ground with the text of s 501(2) (see at [22] above) and with Mr Asaad’s claim to be an Australian citizen. The object of a Ministerial cancellation decision under that subsection is “a visa that has been granted to a person”. The word “visa” is relevantly defined by the combined effect of ss 5 and 29(1) of the Act. Section 29(1) provides:

Subject to this Act, the Minister may grant a non‑citizen permission, to be known as a visa, to do either or both of the following:

(a)    travel to and enter Australia;

(b)    remain in Australia.

63    The expression “non-citizen” is defined in s 5 of the Act to mean “a person who is not an Australian citizen”. It follows that the Minister’s discretionary power in issue in this matter is, at least partly, but nonetheless fundamentally, dependant for its existence on the fact that the affected person, who is necessarily a non-citizen, has been granted, and therefore holds, a visa as defined.

64    It is not in dispute in this matter that Mr Asaad was granted a Partner (Residence) visa in 2013 and that he continued to hold that visa until the time of the Minister’s decision in 2018 (see at [13] above). At least two things follow from this set of circumstances. First, to obtain that visa, Mr Asaad was required to be a non-citizen. Secondly, the fact that he held that visa founded the Minister’s discretionary power under s 501(2) to cancel it.

65    This conclusion provides one reason why Mr Asaad’s claim to be an Australian citizen should be rejected as irrelevant to this ground of review. Another lies in the Minister’s Reasons. That is so because in them the Minister duly considered that claim and properly rejected it, finding that Mr Asaad was not an Australian citizen (see at [25] above). In reaching that conclusion, I consider the Minister was entitled to have regard to the published decisions of the Queensland Court of Appeal and the Tribunal. On this aspect, I therefore reject Mr Asaad’s submissions to the contrary. As well, quite apart from the fact that they did not fall within the terms of the leave that was granted, I also reject Mr Asaad’s submissions summarised at [57] above. It is also worth adding that Mr Asaad’s claim to Australian citizenship is not mentioned anywhere in his grounds of review or the particulars thereto (see at [3] and [4] above). In summary, I do not consider Mr Asaad’s claim to be an Australian citizen is relevant to this ground of review.

66    There is, however, one aspect of this ground of review to which Mr Asaad’s claim to Australian citizenship has some relevance, albeit adversely to him. It concerns his claim to be stateless and the inherent contradiction that is apparent between, on the one hand, claiming to be an Australian citizen and, on the other hand, claiming to be stateless. But even if this inherent contradiction were to be ignored, there is a number of other reasons why the contentions Mr Asaad has made with respect to him being stateless, under this ground of review, cannot be accepted. The first has already been adverted to above. It is the possibility Mr Asaad has canvassed in his particulars to this ground (see at [4(c)] above) that he may be recognised as a citizen, or resident, of Canada, or Egypt. While that possibility remains open, he plainly cannot claim to be stateless and, moreover, he cannot claim to be liable to indefinite detention as he does in his submissions (see at [40] above). Furthermore, until such time as his statelessness is clearly established, the issues he has raised concerning Al-Kateb do not fall for consideration (see at [42] above).

67    Secondly, and relatedly, I do not consider there is any merit in Mr Asaad’s contention that the Minister was somehow obligated to assist him in “reasonable enquiries” to establish whether Canada or Egypt would so recognise him (see the particular at [4(c)] above). To the contrary, as the applicant in this proceeding, Mr Asaad bears the onus of establishing jurisdictional error in the Minister’s decision (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] per Gummow J (with whom Heydon and Crennan JJ agreed at [91] and [92] respectively) and Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [24] per French CJ, Bell, Keane and Gordon JJ). If establishing that jurisdictional error depends upon him being stateless, as he claims in this ground of review, then he bears the onus of proving that fact. In this respect, it is also important to note that Mr Asaad is likely to hold most, if not all, of the knowledge on this subject.

68    Thirdly, and in any event, I consider that the Minister discharged the obligation he had when making his cancellation decision to consider the legal consequences of his decision, including the possibility that Mr Asaad may be stateless and, as a consequence, may be indefinitely detained (see NBMZ per Allsop CJ and Katzmann J at [10] and Buchanan J at [177]–[178]). As the Minister has pointed out, he considered these questions as an adjunct to his examination of Australia’s non-refoulement obligations (see at [32] above). He did that on the footing that Mr Asaad “may be stateless, with no right to enter or reside in any country, given the lack of certainty concerning his country of birth and/or citizenship” (Reasons at [93]). He then recorded his awareness of the legal or “statutory” consequence of his possible statelessness, as follows (Reasons at [95]):

If Mr ASAAD is stateless, I am aware that the statutory consequence of a decision to cancel his visa is that, as an unlawful non-citizen whose stateless status means that it is not reasonably practicable to remove him from Australia, he must continue to be detained in accordance with ss189 and 196 of the Act, unless granted a visa by me under s195A of the Act.

Immediately thereafter, he recorded that, in coming to his decision, he had weighed that consequence “against the seriousness of [his] criminal offending”. I therefore accept the Minister’s contention (at [50] above) that he duly discharged his obligation in this regard.

69    Finally, as for Mr Asaad’s reliance on the decision in Cotterill, I agree with the Minister’s submissions (at [49] above) that Mr Asaad did not articulate a claim of the kind identified in the particulars to this ground of review (see at [4(a)] above) and nor was any such claim clearly apparent on the materials he placed before the Minister (see DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177). Despite the absence of such a claim, I also agree with the Minister’s submissions that, in making his decision, he did consider, in some detail, the difficulties Mr Asaad may experience as a result of his medical conditions and the need to obtain treatment for them were he to be removed from Australia (see at [35]–[36] above).

70    For these reasons, I do not consider ground of review 1 has any merit.

Ground of review 2 – the “unreasonably harsh” issue

71    Particular (d) of this ground of review (see at [4] above) and Mr Asaad’s submission summarised at [44] above have already been addressed under ground of review 1 above. That aside, this ground of review and the particulars provided in support of it advance reasons why Mr Asaad thinks the Minister’s decision was “unreasonably harsh”. By its terms, that description is redolent of an attempt at merits review and should be rejected for that reason alone (see Eden at [59] set out in [60] above). But in addition, I agree with the Minister’s submissions at [51] above that, in reaching his decision, he acted within the boundaries of his statutory discretion (see Eden at [62] set out in [60] above). It was for the Minister to assess and weigh the matters to which Mr Asaad has pointed in his particulars to this ground and there is nothing in the Minister’s treatment of those matters that supports the conclusion that his decision “falls outside the range of lawful outcomes” (see Eden at [65] set out in [60] above).

72    For these reasons, this ground of review also has no merit.

Ground of review 3 – the unreasonableness issue and the 2012 warning

73    This ground of review also claims that the Minister’s decision was unreasonable and therefore “vitiated with error”. The source of that unreasonableness in this ground is identified as the conclusions the Minister drew with respect to the 2012 warning. In particular, Mr Asaad claims that the Minister wrongly concluded that he had contravened that warning by “maintaining that he was born in Australia” (see at [3] above). Unlike the other two grounds of review, no other particulars are provided. However, in his submissions, Mr Asaad claims that the Minister erred “in the decision-making process” for his decision and thus was unreasonable (see at [45] above). Further elaboration of that claim appears to be provided in his oral submissions where he makes the point that the Minister’s Department acted in accordance with the 2012 warning in and after December 2016, notwithstanding his May 2016 conviction (see at [48(a)] above).

74    In his submissions, the Minister points to his treatment of the 2012 warning at [52]–[55] of the Reasons and the conclusions which are at [56]–[58]. The latter paragraphs are already produced above (see at [27]). The former are as follows:

52.    Following his immigration detention on 18 November 2011, Mr ASAAD lodged an application for a Bridging E visa, on 22 November 2011. Refusal of this visa was considered by the Department on character grounds. Via his then lawyer, Mr ASAAD responded to a Notice of Intention to Consider Refusal, including with a personal, handwritten statement about why his visa should not be refused. On 20 February 2012, a delegate elected not to refuse Mr ASAAD’s visa and he was issued a warning about the potential immigration consequences of any offending in future.

53.    In his written submission[s] dated 15 January 2018, Mr ASAAD notes that the decision to warn him took into account his Australian and American criminal history which, as noted above, he has not disputed. He agrees that the warning was clear about any future offending conduct but submits that he has not offended since being formally warned.

54.    Mr ASAAD’s most recent conviction, on 12 May 2016, for the offence of Dishonestly obtain financial advantage by deception, relates to conduct which predates the warning from the Department of Immigration and Border Protection. However, Mr ASAAD initiated the application to the Administrative Appeals Tribunal which, by decision dated 15 November 2017, affirmed the decision that Mr ASAAD did not meet the residency requirements for the Age Pension. In 2017, in his sworn evidence to the AAT, Mr ASAAD continued to state that he was born in Australia and raised by an Arabic speaking family in Campsie and Moree, evidence which was not accepted during his jury trial in the District Court, which found he intentionally created and used a false identity to obtain Centrelink payments. In a Personal Circumstances Form, dated 10 January 2018, Mr ASAAD continued to claim to be born in Australia.

55.    The Supreme Court of Queensland found that Mr ASAAD entered Australia in the identity of Mr Rick Michaels and, as set out in a Detention Note dated 23 November 2011, he next arrived in and departed Australia in the identity of Christopher Giaconia. From 1999, all his movements were made using the identity of Michael Boghdadi ASAAD. Thus, Mr ASAAD has entered Australia using three different identities. In Australia, he fraudulently obtained a late registration of birth and used this to obtain an Australian passport, issued in a false identity he created and has maintained for several decades. Mr ASAAD has breached judicial orders in Australia, failing to appear in accordance with an undertaking, and twice breaching a suspended sentence of imprisonment. His FBI report indicates that he breached judicial orders in the United States of America also.

(Italics in original)

75    Mr Asaad’s concerns about these parts of the Minister’s Reasons appear to focus on a distinction he seeks to draw between the terms of the 2012 warning: “consequences of any offending in the future” (Reasons at [52]); and whether the May 2016 conviction constituted “future offending conduct” (Reasons at [53]). In particular, Mr Asaad claims that the conduct to which the May 2016 conviction related pre-dated the 2012 warning (Reasons at [54]). Further, he claims that, instead of relying upon future offending conduct, the Minister relied upon statements he made in the proceedings before the Tribunal in connection with his age pension application and in his personal circumstance form, which did not involve any offending (Reasons at [54]). Thus, the reference to him “maintaining that he was born in Australia” in this ground of review, as mentioned above. This claim can be disposed of briefly. When the Reasons are read as a whole, it is clear, in my view, that the Minister did not rely on those statements in the way Mr Asaad has claimed, but rather as matters relevant to the conclusions he reached at [56]–[58] about Mr Asaad’s “longstanding disregard of Australian and international laws”.

76    The use the Minister made of the 2016 conviction appears near the outset of the Reasons under the heading “Character Test”. There, he records (Reasons at [6]):

On 12 May 2016, Mr ASAAD was convicted in the District Court of Queensland of the following offence, for which he was sentenced as shown:

•    Dishonestly obtain financial advantage by deception – three years and six months imprisonment

(Italics in original)

77    In the next paragraph, the Minister also referred to Mr Asaad’s “earlier criminal convictions which resulted in a sentence to a term of imprisonment of 12 months or more” and noted that, in a submission made prior to the 2012 warning being issued, Mr Asaad had conceded that he did not meet the character test at that time. The Minister then relied upon both the May 2016 conviction and the earlier set of sentences to conclude (Reasons at [8]):

… I reasonably suspect that he does not pass the character test by virtue of s501(6)(a) of the Act with reference to s501(7)(c) of the Act and he has not satisfied me that he passes the character test.

78    It can therefore be seen that the Minister separately identified the May 2016 conviction as a new event upon which he based his conclusion that Mr Asaad did not meet the character test. It should also be added that the later parts of the Reasons, upon which Mr Asaad has focused above, concern discretionary considerations, many of which were raised by Mr Asaad himself.

79    Having regard to these matters, I do not consider that the Minister was estopped by the 2012 warning from deciding to cancel Mr Asaad’s visa in 2018 based, at least in part, on his May 2016 conviction. The 2012 warning was directed to “future offending”. Whether or not it relied on conduct that occurred earlier in time, the May 2016 conviction still constituted offending that post-dated 2012. Moreover, it constituted a new relevant fact. Hence, the Minister was not prevented from taking account of that conviction in determining whether or not Mr Asaad met the character test in 2018 and in deciding whether to exercise his discretion to cancel his visa as a consequence. Put differently, having regard to those conclusions and on a fair reading of the whole of the Minister’s reasons, I consider they provide an “evident and intelligible justification” for this decision (see Eden at [64] set out at [60] above). Conversely, I do not consider that Mr Asaad has advanced any basis in this ground of review for his claims that the Minister acted unreasonably in making his decision.

80    For these reasons, I do not consider ground of review 3 discloses any vitiating error in the Minister’s decision.

81    Finally, for completeness, I would add that I agree with the Minister’s submissions that “risk” was not specifically raised as an issue anywhere in Mr Asaad’s grounds of review. That being so, and having regard to the content of his supplementary submissions on that issue, I do not consider it is in the interests of justice to grant him leave to raise that issue in this proceeding. It is therefore unnecessary to consider the issues raised by the supplementary submissions on this topic.

CONCLUSION

82    For these reasons, there is no merit in any of Mr Asaad’s three grounds of review, or in the submissions he has made in support of them. His application for judicial review of the Minister’s decision must therefore be dismissed. The orders will be:

1.    The amended originating application filed on 27 July 2018 is dismissed.

2.    The applicant is to pay the respondent’s costs to be taxed failing agreement.

Associate:    

Dated:    14 June 2019