FEDERAL COURT OF AUSTRALIA

BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

THAWLEY J:

1    The applicant seeks judicial review of the (then) Minister for Immigration, Citizenship and Multicultural Affairs’ decision under s 501(1) of the Migration Act 1958 (Cth) to refuse to grant him a Temporary Protection (subclass 785) visa. That decision was made on 4 February 2019.

BACKGROUND

2    The applicant, an asylum seeker from Syria, arrived in Australia by boat on 15 November 2012. After initially being detained under s 189(3) of the Act, he was granted a Temporary Humanitarian Stay Visa with an associated Bridging Visa and released into the Australian community on or about 16 January 2013.

3    On 27 June 2016, the applicant applied for the temporary protection visa.

The Notice of intention to consider refusal

4    By letter dated 7 August 2017, the Minister sent to the applicant a notice of intention to consider refusal of the visa application (NOICR) on “character grounds” under s 501(1).

5    Section 501(1) provides a discretion not to grant a visa if the visa applicant does not satisfy the Minister that the person satisfies the “character test”. The NOICR indicated it was considered that s 501(6)(d)(v) might apply; in summary that there was a risk that the applicant, if allowed to remain, would represent a danger to the Australian community in the ways identified in the provision (see [45] below).

6    Three aspects of the applicant’s conduct which were perceived to be particularly relevant to whether s 501(6)(d)(v) applied are apparent from the terms of the NOICR and its attachments. These three aspects of conduct ultimately formed the basis of the Minister’s decision to refuse to grant the applicant a visa:

(1)    On 12 January 2014, the applicant was attending a massage parlour. Before his massage treatment had started, he received a phone call from his brother in Syria saying that his mother had been killed by a bomb. The applicant became distressed and got into a dispute with the massage parlour about services and payment. NSW Police attended. They referred the applicant for emergency psychiatric assessment at St Vincent’s Hospital. Material before the Minister indicated that – in the context of these events – the applicant had stated that he wanted to die and that he wanted to go back to Syria and blow himself up.

(2)    The applicant was interviewed by the NSW Police on 4 and 6 February 2014. This was precipitated by the events of 12 January 2014. By 4 February 2014, the applicant was again in immigration detention, having been detained by the Minister under s 189(1) of the Act on 3 February 2014. Material before the Minister indicated that the applicant made references to the following during these interviews:

(a)    meeting with a man representing Al Qaeda from June 2013 to November 2013;

(b)    meeting with an Australian Caucasian male whom he met at the Chester Hill Mosque;

(c)    a warehouse containing ‘RPGs’ (rocket-propelled grenades) and guns;

(d)    training he had received to go back and fight in his country, including a six month period of training on Sumbawa Island.

(3)    Material before the Minister indicated various incidents and threats made by the applicant in 2014 and 2015 whilst in immigration detention:

(a)    in a consultation with a Serco staff member on 7 February 2014, the applicant had:

(i)    stated that he had been employed, on a voluntary basis, by a company in Lakemba, transferring money from Australia to Syria to be used for “the war”;

(ii)    stated that he was friends with Osama Bin Laden’s son who had offered to send guns to him in Australia; and

(iii)    extolled the virtues and philosophy of Osama Bin Laden at length;

(b)    on 3 March 2014, he told a Client Services Manager that if he saw a particular detainee, he would assault him and throw a mixture of hot water and sugar mix on his face;

(c)    on 24 June 2014, following an assault from another detainee, the applicant threatened to kill the other detainee;

(d)    on 6 April 2015, the applicant told a Client Services Officer that he wanted to kill him because the officer was “always serious” and because the applicant had been “hearing voices telling him that [the officer was] an infidel”;

(e)    on 20 April 2015, the applicant contacted the Department’s Global Feedback Unit via an interpreter and stated that if he were sent back to Syria he would “blow himself up”; and

(f)    other detainees had made allegations that the applicant had been attempting to recruit fellow detainees to fight for Islamic State of Iraq and the Levant (ISIL) in Syria.

The applicant’s response to the NOICR

7    The applicant responded to the NOICR by way of detailed submissions prepared by his representatives in a letter dated 4 September 2017 (Response). The Response also contained a number of attachments.

8    The applicant’s primary submission was that the applicant had no connections to extremist groups in Australia or in any other country, that his previous behaviour and statements were the result of a severe mental health condition (namely bipolar disorder) and that there was no risk that he would become involved in activities that were disruptive or violent to the Australian community. The applicant responded to the factual allegations concerning the conduct summarised at [6] above, and provided detailed responses. The nature of these are set out below where relevant in dealing with the grounds of review.

9    The Response noted that the applicant had suffered acute bipolar disorder for the period January 2014 to April 2015, but had been of relatively good mental health both before and after that period. The applicant submitted that his bipolar disorder should be seen as the “primary reason” for the alleged conduct.

10    The applicant’s representatives emphasised that the applicant had never been charged with offences related to the alleged incidents (or for any matters in Australia or in any other country) and that they had been advised that the applicant had “been cleared from any investigations by ASIO and the police on the basis that [the applicant was] not an adverse security risk”. They noted that the alleged threats made to other detainees were provoked and that the applicant had never perpetrated any harm or violence against any person, nor “been subjected to further disciplinary action aside from referrals for medical assistance”.

11    It was submitted that, in light of the applicant’s “mental health during 2014-2015, his history of no criminal offences, his reported clearance from ASIO and the police and his conduct before and after this time, the alleged conduct [was] not serious in nature and should not result in the refusal of his Temporary Protection visa application”. It was submitted that the applicant had not experienced acute episodes of bipolar disorder either before or after the relevant period in 2014 and 2015 and that, in this context, the risk that the applicant posed to the Australian community if he engaged in similar conduct was very low.

12    The Response also addressed the “expectations of the Australian community”, submitting that the Australian community would not expect the applicant to be refused a visa when consideration was given to the nature of his conduct, the lack of criminal offences and his health and personal circumstances.

13    The response made detailed submissions with respect to Australia’s non-refoulement obligations. This included:

[The applicant] has explained that if returned to Syria he will face a well-founded fear of persecution at the hands of the Assad-led Regime or opposing rebel-forces in the form of:

•    A threat to or loss of liberty or life;

•    Significant physical harassment, ill treatment;

•    Arrest and imprisonment;

•    Torture;

•    Enforced disappearance.

[The applicant] has explained that his fears derive from his conscientious objection to and evasion of compulsory military service in Syria, his religion as a Sunni Muslim and his place of origin in Daraa, a Sunni majority area reportedly under the control of anti-Government, rebel-groups. His fears are exacerbated by the intensification in the conflict since his departure from Syria and the ongoing and widespread violence being carried out throughout Syria and specifically in his home area of Daraa, where Government and rebel forces continue to clash.

14    Reference was made to numerous items of credible country information describing the situation in Syria. The Response concluded:

We submit that when weighed against the non-seriousness of [the applicant’s] conduct and the low risk that he poses to the Australia [sic] community, Australia’s non-refoulement [sic], should be given considerable weight when determining whether to refuse his Protection visa application. We submit that given the nature of [the applicant’s] claims and his country of origin, there is a reasonable prospect that he will be subjected to indefinite detention should his Protection visa be refused. We submit that given the nature of [the applicant’s] crimes, his health at the time, that he has no criminal history, he is reportedly no longer of adverse interest to ASIO and the police and his good behaviour has been recognized by the DIBP since 2015, the severity of indefinite detention outweighs the low risk that [the applicant] poses to the community.

CONCLUSION

We submit that [the applicant’s] Protection visa application should not be refused under s 501(1) of the Migration Act. We submit that [the applicant] has provided compelling responses to the DIBP’s character concerns, that the incidences between 2014-2015 were not serious in nature and that [the applicant] does not pose a threat to the Australian community. We submit that given [the applicant’s] place of origin and his claims for protection, the prospect of indefinite detention is very real and should be given due consideration when assessed against the DIBP’s concerns.

Summary of the Minister’s decision

15    On 4 February 2019, the Minister decided under s 501(1) of the Act not to grant a visa. He exercised his discretion in that way because he was satisfied that the applicant did not pass the character test because s 501(6)(d)(v) applied. The Minister’s reasons are referred to in detail when dealing with the grounds of review. What follows is a summary.

16    The Minister essentially accepted the submission that the applicant’s conduct from January 2014 to April 2015, summarised at [6] above, was caused, or primarily caused, by his episode of acute mental illness and that he had improved (R[37], [39], [40] to [44], [57], [59]), although he was not sure whether the applicant continued to require medication to manage his condition: R[41].

17    The Minister accepted that, because the applicant’s conduct had resulted from his bipolar disorder, this cast some doubt on some of the claims he made in 2014 and 2015, such as his claimed affiliation with particular extremist groups: R[39], [44], [54]. Nevertheless, the Minister considered that there remained a risk. He stated at R[45]:

However, I have found that there remains a risk that [the applicant] would represent a danger to the Australian community by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, the Australian community. In coming to this conclusion, I considered that the pattern of behaviour he has exhibited, including his threats to blow himself up in January 2014 and April 2015, his repeated claims of association with extremist groups and the threats he made to other detainees and Serco staff while in detention, are of significant concern. I have found that, even if his claims about his associations with extremist groups are not true, the very fact that [the applicant] has repeatedly made those claims may demonstrate an ideology of security concern, which I take seriously particularly given the current global context. In this regard, I have also considered the non-disclosable information.

18    The Minister accepted that the applicant had not been involved in any incident of any significance since April 2015, and that the likelihood of his carrying out any threat was low, but not negligible: R[46], [60], [61].

19    Nevertheless, the Minister considered that the potential harm which would result if that low risk materialised was so great that any likelihood of it occurring represented a significant risk to the Australian community: R[46], [62]. At R[62], the Minister noted that he “placed significant weight on this consideration”.

20    The Minister also placed significant weight on his conclusion that the “expectations of the Australian community” favoured not granting a visa, in that he “considered that the Australian community would place greater weight on the need to protect the Australian community in light of the nature and seriousness of the claims and threats made … and the current global context, and would expect that [the applicant] would not be granted a protection visa”: R[66].

21    The Minister found that the considerations just mentioned outweighed a number of considerations which favoured granting a visa. The countervailing considerations included:

(1)    that his Department had found that, if the applicant were returned to Syria, he would face a well-founded fear of persecution including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture or “enforced disappearance”;

(2)    his Department’s finding that the applicant was a person in respect of whom Australia had international non-refoulement obligations;

(3)    that removal of the applicant to Syria, should that occur, would breach Australia’s non-refoulement obligations; and

(4)    that there was then no known prospect of removal to any other country: R[67], [68].

22    The Minister stated at R[65] that he considered the risk of indefinite detention. However, I interpolate that there was no issue raised in the originating application about indefinite detention and both parties proceeded on the basis that indefinite detention was not a possibility by reason of s 197C of the Act.

23    In six places in his reasons, when discussing the applicant’s conduct and the issues and considerations which arose, the Minister referred to the “current global context”.

24    In making his decision to refuse the protection visa, the Minister also took into account “non-disclosable information”. That term is defined in s 5(1) of the Act in the following way:

Non-disclosable information means information or matter:

(a)    whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:

(i)    prejudice the security, defence or international relations of Australia; or

(ii)    involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or

(b)    whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

(c)    whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;

and includes any document containing, or any record of, such information or matter.

25    By reason of s 501G(1)(e), “non-disclosable information” was not required to be given to the applicant as part of the reasons for refusal to grant a visa. Nor was it placed before the Court.

SUMMARY OF GROUNDS OF REVIEW

26    The applicant relied upon six grounds of review. These are described in greater detail below, but may be summarised as follows.

27    Ground 1 was that the Minister committed a jurisdictional error in finding irrationally, illogically and unreasonably that:

(a)    the applicant did not pass the character test because of s 501(6)(d)(v): at R[47]; and

(b)    the reasons for refusing the protection visa application outweighed the reasons for not refusing it: at R[81].

28    Grounds 2 to 5 revolved around the Minister’s use of the phrase “current global context”:

(1)    By Ground 2, the applicant contended that he was denied natural justice by not being informed that the Minister would consider the matter with reference to the “current global context” (which was not, but should have been, defined) or that the “current global context” would be a significant consideration.

(2)    By Grounds 3 to 5, the applicant contended that the Minister’s reasons did not adequately explain the meaning and application of the phrase.

29    Ground 6 contended jurisdictional error in failing to consider that the applicant had been in the Australian community from approximately 16 January 2013 until 3 February 2014 without being charged with any criminal offences, receiving adverse or qualified security assessments, or carrying out any threats.

30    For the reasons which follow, none of the grounds are made out.

31    It is convenient to deal with Ground 1(a) and (b) separately and Grounds 2 to 5 together.

GROUND 1(A)

Relevant legal principles

32    Grounds 1(a) and 1(b) asserted jurisdictional error on the basis of irrationality and legal unreasonableness. The relevant legal principles are well established.

Legal unreasonableness

33    As to legal unreasonableness, the Full Court in Singh v Minister for Home Affairs [2019] FCAFC 3 at [61] (Reeves, O’Callaghan and Thawley JJ) stated:

The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it:

(1)    is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);

(2)    “lacks an evident and intelligible justification”: Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);

(3)    is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth  JJ).

34    To those examples could be added that legal unreasonableness may be found where the “result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances”: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [83] (Nettle and Gordon JJ).

35    What is apparent from the preceding examples is that a decision might be found to be unreasonable either:

(1)    after identification of specific error shown to affect the decision; or

(2)    by reference to the outcome or result of the decision: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [12] (Allsop CJ).

36    The Minister emphasised that the test has been described as “stringent” or “extremely confined”: SZVFW at [11] (Kiefel CJ), [52] (Gageler J) and [135] (Edelman J).

Illogicality or irrationality

37    As to “illogicality” or “irrationality” giving rise to jurisdictional error, the Full Court in MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] (Besanko, Farrell and Thawley JJ) stated:

A decision might be shown to be affected by jurisdictional error if:

(1)    no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);

(2)    there is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] (Perram, Farrell and Thawley JJ);

(3)    there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].

38    If minds might differ on a particular conclusion, it necessarily follows that the difference is not explained by an error in logic. For an error in logic, the particular conclusion must be one which could not logically have been reached. Heydon J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] stated:

The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.

39    Crennan and Bell JJ at [131] stated:

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

40    It is important to recall that the identification of illogical or irrational reasoning or fact finding is in aid of determining whether the decision was affected by jurisdictional error. It is not sufficient simply to identify a particular step in reasoning, or a conclusion of fact, that is not logical. The lapse in logic must be of such a nature that it can be seen to take the ultimate decision outside of the jurisdiction conferred by the particular statute.

Consideration

41    As mentioned, Ground 1(a) asserted that the Minister committed a jurisdictional error by finding irrationally, illogically and unreasonably that the applicant did not pass the character test by reason of s 501(6)(d)(v).

42    In oral argument, Senior Counsel for the applicant stated that it was not contended that the Minister could not lawfully have concluded, on the material before him, that there was a risk, albeit a low risk, of the applicant carrying out his threats. This was stated by the Minister and the Court to be understood as indicating an abandonment of Ground 1(a). The applicant did not submit otherwise in reply. Nevertheless, I have dealt with the arguments as presented in the written submissions on this topic. A number of the written submissions made in respect of Ground 1(a) can be seen as relevant to other grounds, in particular Ground 1(b).

43    Ground 1(a) was supported by particulars (i) to (v) and (vii) to (ix) in the originating application. In written submissions, the applicant dealt with the three aspects of conduct which principally informed the Minister’s decision summarised at [6] above: (1) the 12 January 2014 incident; (2) the 4 and 6 February 2015 interviews; and (3) the conduct whilst in immigration detention. It is convenient to approach Ground 1(a) in this way.

First matter – Incident on 12 January 2014

44    The applicant’s first basis of asserted jurisdictional error revolved around the incident of 12 January 2014 in which the Minister concluded that the applicant had threatened to go back and blow himself up in Syria.

45    The applicant emphasised the following aspects of the terms of s 501(6)(d)(v) (applicant’s emphasis):

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

…

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

…

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; 

46    In written submissions, the applicant submitted that:

(1)    the Minister provided no evidence that the applicant threatened:

(a)    harm to the Australian community or to a segment of that community; or

(b)    to blow himself up in Australia;

(2)    there was no logical basis for the Minister’s assessment that there was a risk the applicant would blow himself up in Australia;

(3)    the Minister did not engage in an assessment as to the truth of the applicant’s alleged threats, merely relying upon reports that the applicant had made such threats;

(4)    there was evidence that the applicant was severely mentally ill when he made the alleged threats.

47    The fact that the precise terms of the threat made on 12 January 2014 were that the applicant would blow himself up in Syria does not make it illogical to conclude that the person making the threat posed a risk to the Australian community if he remained in Australia. It is perfectly logical to reason that there is a risk that a person who is willing to blow themselves up might carry out such an act in a place different from that which they had specifically identified in the threat.

48    The Minister also took into account a threat made by the applicant on 20 April 2015, which could reasonably be understood as a threat to blow himself up in Australia. At R[27], R[28] and R[35], the Minister stated:

27.    I then considered an Incident Detail Report which indicates that, on 20 April 2015, [the applicant] contacted the Department’s Global Feedback Unit (GFU) and stated that if he was sent back to Syria he would blow himself up.

28.    I noted that [the applicant] claimed that this incident also involved a misunderstanding. He claimed that he was explaining the incident that occurred in January 2014 and the allegations made against him, but the GFU believed he was making fresh threats which, according to [the applicant], was not correct.

35.    Further, I am satisfied that [the applicant] made a threat to blow himself up in April 2015 during his contact with the GFU. While [the applicant] states that he was misunderstood, I have also noted that he states that he contacted the GFU with the assistance of an interpreter. As such, I considered that the scope for the GFU to misunderstand [the applicant] was substantially limited.

49    The relevant “incident detail report” recorded that the applicant had stated that “if he is sent back to Syria, ‘he will blow himself up’”.

50    It was open to understand this as a threat of something the applicant would do in Australia if the decision were made to send him back to Syria, as opposed to something he would do only if in fact he was returned to Syria. It is not clear from the reasons whether the Minister understood the threat in this way. In any event, the same observation as made at [47] above applies if the Minister understood the threat to have been one which was threatened to be carried out in Syria.

51    Contrary to the applicant’s written submissions, the Minister did engage in an assessment of whether the applicant made the threat on 12 January 2014. The Minister set out the material which he relied upon at R[9] and R[10] which included a NSW Police report and the NSW Police request to the NSW Department of Health for a mental health assessment. These were contemporaneous documents which might be expected to contain an accurate account of events given the circumstances in which they were created. It was natural to rely upon them.

52    The Minister considered the various submissions which the applicant had made at R[11] to R[14]:

11.    In considering this incident, I have noted that, in his response to the NOICR, [the applicant] submitted that the incident occurred during a difficult time as he had received information that his mother had been killed in an attack. He claimed the statement that he was going to go to Syria and blow himself up was a misunderstanding, and that he was extremely distressed and was trying to communicate with his very limited English without the aid of an interpreter. I noted that [the applicant] was later informed that his mother was still alive.

12.    [The applicant] further stated that his behaviour was erratic and out of character but at no stage was he making genuine threats against himself or anyone else. He noted that no charges were laid and that he was instead taken to a hospital to be treated for mental health concerns.

13.    I have also noted the earlier submissions made by [the applicant] in his letter of 8 July 2015. In those submissions, [the applicant] claimed that he did state to police that he wanted to die and kill himself in Syria because the Syrian government had killed his mother, but that he never threatened to kill himself and others with a bomb. He stated that he only mentioned a bomb to the police as he was referring to the way his mother was killed.

14.    Further, [the applicant] stated that he was under psychological and emotional pain at the time, that he suffered from bipolar disorder as a child and that his use of English may not have been clear to the police. As such, [the applicant] believed that the police officer misunderstood him, and that, had the police believed he was a threat, he would have been taken to a police cell instead of a hospital.

53    Having considered all of those matters, the Minister concluded that that the threat had been made. At R[16], the Minister stated:

16.    Having regard to NSW Police’s descriptions of the incident, as set out in the documents mentioned above, as well as [the applicant’s] explanations, I am satisfied that [the applicant] did make a threat to kill himself with a bomb on this occasion, although he may no longer remember this himself. I have made this finding despite having accepted that [the applicant] has no criminal history in any country, and having had regard to his United Arab Emirates Police Certificate, which contains a certification provided by Dubai police that [the applicant] had no previous convictions as at 1 November 2016.

54    Contrary to the applicant’s submission, the Minister took into account the fact that the applicant was mentally ill. That is evident from R[14] and R[16], extracted above. It is also evident from the first sentence of R[44] which begins the Minister’s conclusions with respect to the application of s 501(6)(d)(v):

44.    I have accepted that [the applicant’s] previous conduct, as described by NSW Police and Serco staff in the documents mentioned above, has resulted from his bipolar affective disorder, and that his mental health and behaviour have improved since April 2015 …

55    It was not illogical to conclude that a threat remained, whilst accepting that the threat made on 12 January 2014 had been made at a time when the applicant was mentally ill. First, the threat was but one of a number of incidents taken into account. Secondly, the fact that the applicant’s mental health condition had improved at the time of the decision did not exclude the possibility that it might deteriorate.

Second matter – Interviews with Police on 4 and 6 February 2014

56    The second matter relied upon as establishing jurisdictional error concerned the statements made on 4 and 6 February 2014. The Minister referred to these at R[17]:

17.    I then noted that, following the above incident, [the applicant] was interviewed by NSW Police on 4 February 2014. According to a statement provided by NSW Police on 16 June 2017 with attached excerpts from a police notebook regarding the interview, [the applicant] referenced the following, among other things, during this interview:

•    meeting with a man representing Al Qaeda from June 2013 to November 2013;

•    meeting with an Australian Caucasian man who he met at the Chester Hill mosque;

•    a warehouse containing ‘RPGs’ and guns; and

•    training he had received to go back and fight in his country, including a six month period of training on Sumbawa Island.

57    The Minister considered the applicant’s representations in relation to the interviews at R[18] to R[20]:

18.    I noted that, in response to the NOICR which invited [the applicant] to comment in relation to the above interview, [the applicant] submitted that “I do not have, nor have I ever had, links to Al Qaeda, Osama Bin Laden, ISIL or any other religious group or organisation operating in Australia, Syria or any other country.” He submits that this has been accepted by the Australian Security Intelligence Organisation (ASIO) who have cleared him of being of any adverse interest. In this respect, I have also noted the non-disclosable information.

19.    [The applicant] further stated that, in February 2014, he was suffering from bipolar affective disorder, was “particularly manic” and was suffering from hallucinations. [The applicant] stated that during the interview with police he “started to tell them stories that surprised them and I could see that they were getting excited so I continued to tell them what I thought they wanted to hear”. Further he claimed that at the conclusion of the interview he informed police that everything he had said was a lie. He claimed that the officers were very shocked when he told them this and does not believe that they knew that he suffered from bipolar disorder. [The applicant] also believes that the redacted text in the police notebook notes his admission that everything he had just told the police was a lie.

20.    As the redacted text follows a notebook entry dated 6 February 2014, I am of the opinion that it is unlikely the redacted text relates to any comments [the applicant] may have made at the conclusion of the interview on 4 February 2014. I have noted that NSW Police have not provided any reasons for the redactions. The information currently available is not sufficient for me to determine whether [the applicant] had in fact told the police that everything he had said at the interview on 4 February 2014 was a lie; nor is it sufficient for me to conclude that [the applicant] meant what he apparently said.

58    The Minister concluded at R[21]:

21.     While the veracity of the claims made by [the applicant] during the police interview on 4 February 2014 remains unclear, I have found that the fact that he made those claims at all may demonstrate an ideology of security concern, which I take seriously particularly given the current global context.

59    It is to be noted that the applicant did not suggest that he did not make the comments set out at R[17]. Rather, the applicant implicitly accepted that he made those statements, but asserted that, at the conclusion of the interview he stated to the police that everything he had said earlier in the interview was a lie. That assertion was addressed. The Minister felt unable to determine whether or not the applicant had made the further statement, as claimed: R[20].

60    The Minister took into account what had been said at the interviews on 4 and 6 February 2014 (together with other relevant conduct) at R[45] and R[46], saying:

45.    However, I have found that there remains a risk that [the applicant] would represent a danger to the Australian community by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, the Australian community. In coming to this conclusion, I considered that the pattern of behaviour he has exhibited, including his threats to blow himself up in January 2014 and April 2015, his repeated claims of association with extremist groups and the threats he made to other detainees and Serco staff while in detention, are of significant concern. I have found that, even if his claims about his associations with extremist groups are not true, the very fact that [the applicant] has repeatedly made those claims may demonstrate an ideology of security concern, which I take seriously particularly given the current global context. In this regard, I have also considered the non-disclosable information.

46.    Although I consider there is a low likelihood of [the applicant] carrying out his threats, I consider it to be more than a minimal or remote chance. Further, I considered that the threats made by [the applicant] cannot be ignored in the current global context. In this respect, I considered that, in the event that any of [the applicant’s] threatened activity (including his threat to blow himself up) was carried out in Australia, this would likely result in significant harm to the Australian community.

61    This use of what was said was not illogical. The fact that the applicant was mentally ill at the time of the interviews did not exclude the possibility that his statements might be true or, if they were not, that he may hold an ideology of security concern or be liable to a way of thinking when mentally ill so as to be of security concern.

62    It was submitted that:

(1)    the Minister did not engage in an assessment as to the truth of the applicant’s alleged threats, but merely relied upon reports that the applicant had made the threats, referring to R[21];

(2)    there was significant evidence that the applicant was severely mentally ill at the time the threats were made;

(3)    given the Minister’s reliance at R[33] on Serco Reports regarding the applicant’s behaviour, it was inconsistent that the Minister would ignore the reports of the applicant having “bulging red eyes” and notes regarding the applicant’s “ongoing weird behaviour in the compound”.

63    The first submission is not made out. The Minister clearly turned his mind to whether he should accept the reports and considered the applicant’s submissions. In any event, as mentioned, the applicant himself largely accepted the reports.

64    As to the second submission, the Minister took into account the applicant’s mental health issues in reaching his conclusion as to the application of s 501(6)(d)(v). In addition to R[44], the Minister’s consideration of the applicant’s mental health is evident from his reasons at R[54], R[57] and R[59], where the Minister stated:

(a)     Nature and seriousness of past conduct

…

54.    On the other hand, I have accepted that [the applicant’s] conduct has resulted from his bipolar disorder and noted that this casts some doubt on the credibility of some of his claims, such as those alleging affiliation with particular extremist groups. Further, I have noted that [the applicant] has no recorded criminal history.

…

(b)    Risk to the Australian community

…

57.    In considering the likelihood of [the applicant] engaging in criminal or other serious conduct, I have considered the information provided by health professionals regarding his mental health condition, as well as evidence of rehabilitation achieved by [the applicant]. In particular, I have had regard to submissions received which emphasise [the applicant’s] bipolar affective disorder and which submit that his bipolar disorder is the primary reason for the alleged conduct that has brought his character into question. As such, it has been submitted that [the applicant’s] conduct and the statements he made during this period cannot be taken as being genuinely held or indicative of his actual character.

…

59.    I noted that it has been submitted that [the applicant’s] mental health concerns between 2014 and 2015 should be “held in isolation”, and were triggered by a period of extreme stress following the receipt of information that his mother had died and by being re-detained in a high security detention facility. His migration agent noted that, prior to 2014 and following 2015, [the applicant] has not experienced any acute episodes of bipolar and submitted that, in this context, the risk that [the applicant] poses to the Australian community if he engages in similar conduct is very low. I noted that [the applicant] has also submitted that he does not pose a risk to the Australian community.

65    As to the third submission, the Minister did take into account reports of the applicant having “bulging red eyes” and the notes regarding the applicant’s “ongoing weird behaviour in the compound”. At R[32], the Minister stated:

32.    In relation to the allegations about his attempt to recruit detainees for ISIL, I noted that [the applicant] stated that “this incident occurred during an episode of severe mental health” which he claimed is evident in Serco’s Security Information Report where it refers to him having “bulging red eyes” and where it notes the comments made by other detainees regarding his “ongoing weird behaviour in the compound”. He noted that the allegations relating to ISIL were made by unnamed detainees with no further information or evidence to establish that they are true. Further, [the applicant] believes that information has been recorded incorrectly in the report as he does not recall ever trying to recruit people to ISIL.

66    No illogical reasoning has been shown in the Minister’s treatment of the applicant’s interviews with police on 4 and 6 February 2014.

Third matter – Conduct in immigration detention

67    The third matter relied upon to establish irrationality related to the applicant’s asserted conduct whilst in immigration detention. In light of the submissions concerning the incident on 12 January 2014, it should be noted that the conduct in immigration detention was undeniably conduct which occurred “in Australia”. At R[22], the Minister stated:

22.    I then considered the following threats that [the applicant] has allegedly made against other detainees and service provider (Serco) staff while in immigration detention, according to the Incident Detail Reports prepared by Serco staff:

•    On 3 March 2014, [the applicant] stated to a Client Services Manager that if he saw a particular detainee, he will would [sic] assault him and throw a mixture of hot water and sugar mix on his face.

•    On 24 June 2014, following an assault from another detainee, [the applicant] threatened to kill the other detainee.

•    On 6 April 2015, [the applicant] approached a Client Services Officer (CSO) and stated that he wanted to kill him. When asked why he wanted to kill the CSO, [the applicant] stated that “it’s because you are always serious”. In relation to this incident, a Security Information Report provided by Serco on another incident on 7 April 2015 also notes that “[t]he other day [the applicant] threatened to kill a Hotham Staff member because he was allegedly hearing voices telling him that he is an infidel”.

68    The Minister considered the applicant’s representations in relation to those events at R[23] to R[26]:

23.    In response to the NOICR, [the applicant] reiterated that, during the period of January 2014 to April 2015 when these incidents took place, he was very ill and was admitted to hospital on three occasions. He states that his behaviour was sometimes religiously themed and that there were reports that he thought he had seen Jesus at the detention centre.

24.    Further, in regards to the incidents in March 2014 and June 2014, [the applicant] notes that he was physically assaulted by other detainees on both occasions, but did not touch or harm either of them and did not intend to do so. In relation to the incident in March 2014, [the applicant] states that an older man pushed him in the back because he was being noisy in the kitchen and [the applicant] became angry because he did not believe he had done anything wrong. In relation to the incident in June 2014, [the applicant] states that he was assaulted by a detainee while he was using a computer, that it was a completely unprovoked attack and that [the applicant] was struggling with his health at the time and became upset.

25.    In relation to the incident in April 2015, [the applicant] believes that information has been recorded incorrectly in the report as he does not recall ever threatening any Hotham staff member.

26.    [The applicant’s] migration agent also notes that [the applicant] has not been subject to any further disciplinary action as a result of these incidents.

69    At R[33] and R[34], the Minister stated:

33.    However, I have placed greater weight on the reports prepared by Serco staff. I considered that those reports are likely to provide accurate and reliable descriptions of [the applicant’s] behaviour while in immigration detention.

34.    I also noted that the threat made by [the applicant] to kill a CSO is recorded both in the abovementioned Security Information Report regarding another incident on 7 April 2015, and in an Incident Detail Report dated 6 April 2015.

70    At R[29] to R[32] and R[36], the Minister stated:

29.    I also had regard to a report of a Serco staff member that, during a consultation in February 2014, [the applicant]:

•    stated that he had been employed, on a voluntary basis, by a company in Lakemba, transferring money from Australia to Syria to be used for “the war”;

•    stated that he is friends with Osama Bin Laden’s son, who has offered to send guns to him in Australia; and

•    extolled the virtues and philosophy of Osama Bin Laden at length.

30.    In addition, I have considered a Security Information Report provided by Serco staff, which notes the allegations made by other detainees against [the applicant] that, while in immigration detention, he had been attempting to recruit fellow detainees to fight for Islamic State of Iraq and the Levant (ISIL) in Syria.

31.    In response to the NOICC, [the applicant] stated that he has not, nor has he ever, had links to Al Qaeda, Osama Bin Laden, ISIL or any other religious group or organisation operating in Australia, Syria or any other country. I noted that [the applicant’s] migration agent has submitted that [the applicant] has no connections to extremist groups in Australia or any other countries and that his statements were a result of his severe mental health condition.

32.    In relation to the allegations about his attempt to recruit detainees for ISIL, I noted that [the applicant] stated that “this incident occurred during an episode of severe mental health” which he claimed is evident in Serco’s Security Information Report where it refers to him having “bulging red eyes” and where it notes the comments made by other detainees regarding his “ongoing weird behaviour in the compound”. He noted that the allegations relating to ISIL were made by unnamed detainees with no further information or evidence to establish that they are true. Further, [the applicant] believes that information has been recorded incorrectly in the report as he does not recall ever trying to recruit people to ISIL.

…

36.    I considered that the allegations about [the applicant’s] attempt to recruit other detainees to fight for ISIL are consistent with the claims that he made to NSW Police during his interview on 4 February 2014, as well as the claims he made to Serco staff as outlined above, regarding this association with extremist groups. I noted that [the applicant] has not provided any explanation as to why other detainees would have made false allegations against him in this regard. I am satisfied that [the applicant] did make claims that suggested that he was recruiting people to ISIL as alleged, even though he may no longer remember it himself due to his mental health condition.

71    The applicant submitted:

(1)    First, the decision whether or not to grant the visa must be made at a point in time and the Minister provided no evidence that the applicant’s current behaviour was of concern. Rather, the Minister acknowledged the applicant’s good behaviour, for a period of four years, whilst in immigration detention: R[38].

(2)    Secondly, in relation to the applicant’s behaviour before 2015, there was no evidence that the Minister referred any of the incidents to the police or took any disciplinary action against the applicant.

(3)    Thirdly, the incident reports relied on by the Minister record nonsensical and illogical statements by the applicant, strongly suggestive of mental health issues:

(a)    The incident report for 7 April 2015 recorded concerns regarding the applicant’s on-going weird behaviour and that the applicant was hearing voices.

(b)    The incident report for 20 April 2015 recorded that the applicant was referred to mental health services for treatment.

(c)    The incident report for 6 April 2016 recorded that the applicant told a client services officer that the applicant wanted to kill him because “you are always serious”. The report also recorded that the applicant then tried to get the officer to say phrases in Arabic meaning ‘Praise Allah’.

72    As to the first submission, the Minister was entitled to reason from his findings about the applicant’s past behaviour to a conclusion that the applicant would, at the time of the Minister’s decision (or in the future), present a risk to the Australian community if allowed to remain in Australia. The Minister was not required only to consider the applicant’s behaviour at the time of the Minister’s decision. Further, and appropriately, the Minister considered the improvement in the applicant’s behaviour at R[38], stating:

38.    I also noted that [the applicant] referenced a letter from the Australian Border Force (ABF) acknowledging his good behaviour, and has provided a number of letters of support in response to the NOICR. He maintains that he is of good character, that the things he stated in the past were false or said while suffering from a significant mental health condition and that he does not pose a risk to the Australian community. Further, I have noted that there is no record of any incident of significance in which [the applicant] has been involved since April 2015.

73    The fact that the applicant’s behaviour had improved did not disqualify the Minister from considering the applicant’s past conduct. There was nothing illogical or irrational in concluding that the applicant’s conduct in the three respects identified in the period January 2014 to April 2015 suggested risk, notwithstanding the applicant’s lack of a criminal record and his recent good behaviour. In this context, it is relevant to note that the Minister’s finding was that s 501(6)(d)(v) (“representing a danger to the Australian community”) applied, not s 501(6)(d)(i) (“engage in criminal conduct in Australia”).

74    Particular (i) to Ground 1 referred to the Minister’s statement at R[39]:

39.    Having regard to the above, I accept that [the applicant’s] behaviour has improved since April 2015, and that his previous conduct, as recorded in the documents provided by NSW Police and the reports provided by Serco staff as outlined above, has resulted from his mental health condition, which may have been exacerbated by being held in immigration detention. However, I have also considered the non-disclosable information in this regard.

75    It was not illogical for the Minister to accept that (a) the applicant’s behaviour improved and (b) his past behaviour resulted from his mental illness which had also improved since April 2015, but still to conclude that the applicant posed a risk to the Australian community in light of the nature of his past behaviour. The Minister did not conclude that the applicant’s mental condition would never deteriorate. Nor did the Minister conclude that the applicant’s mental illness was the sole cause of the risk which the Minister perceived to exist. A fair reading of the Minister’s reasons is that mental illness was causative in the sense that the particular events summarised at [6] above may not have occurred if the applicant had not been suffering an acute episode of mental illness. Nevertheless, the applicant presented a risk to the community having regard to his pattern of behaviour, the nature of the threats and the fact that “even if his claims about his associations with extremist groups are not true, the very fact that [the applicant] has repeatedly made those claims may demonstrate an ideology of security concern”. The process of reasoning at R[44] and R[45] was not illogical or legally unreasonable.

76    As to the second submission, the Minister was not disqualified from considering the applicant’s past conduct by reason of the absence of any evidence that the applicant was referred to the police, or the subject of disciplinary action. That fact was one which could be taken into account in weighing the significance to attach to the relevant conduct. There might be any number of reasons for not referring the incidents to the police or for disciplinary action, including – for example – a recognition that the applicant was mentally ill. Even if it be assumed that the incidents were ones which were not in fact sufficient to warrant referral to police, that does not mean that the incidents alone or in combination with other considerations were not relevant to the question whether s 501(6)(d)(v) was engaged.

77    As to the third submission, it may be accepted that the incident reports suggest that the applicant was suffering mental illness. The Minister accepted that. The Minister explained, in terms which were open in the sense that they were not legally unreasonable or illogical, why he was nevertheless not satisfied that the applicant passed the character test: R[45].

78    Particular (iv) to Ground 1 referred to the Minister’s acceptance that the applicant might not remember making claims that he was recruiting people to ISIL, referring to R[36], extracted above. It was not illogical to accept that the applicant might no longer remember making claims that suggested he was recruiting people to ISIL, and also to consider the possibly forgotten behaviour in assessing risk. The Minister concluded that the applicant might not remember, not that he did not remember. If the applicant did remember making the claims, but then falsely claimed to have no such memory, that fact could be regarded as a matter of serious concern. If he in fact did not remember, it was open to the Minister to reason that the conduct nevertheless evidenced the possibility that the applicant held an ideology which presented a security concern.

Conclusion on Ground 1(a)

79    Accordingly, there was material before the Minister from which he could conclude, reasonably and logically, that the applicant did not pass the character test by reason of s 501(6)(d)(v). The process of reasoning adopted in reaching that conclusion was not shown to be relevantly illogical or unreasonable. Ground 1(a), to the extent it was not abandoned in oral submissions, is not made out.

GROUND 1(B)

80    As mentioned, Ground 1(b) was that the Minister committed a jurisdictional error in finding irrationally, illogically and unreasonably that the reasons for refusing the application outweighed the reasons for not refusing it: at R[81].

81    The applicant submitted that:

(4)    the Tribunal’s function on merits review was “to arrive at the correct or preferable decision in the case before it, according to the material before it”, referring to the well-known description given by Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 and citing: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [10] (French CJ) and [93] (Gageler J); SZVFW at [94] (Nettle and Gordon JJ);

(5)    the Minister’s statutory task could not be different to the Tribunal’s task on a merits review; and

(6)    “it cannot be said that the correct or preferable decision, according to the material before the [Minister], could be the rejection of the applicant’s [visa] application”.

82    The problem with these submissions is that the question whether or not the Minister’s decision was the preferable one is not the issue before this Court. That is a question which would arise in merits review proceedings. It was not in dispute that there was no merits review available to the applicant in this case. That fact does not alter the nature of these proceedings. Judicial review concerns the legality of the decision made, not its merit.

83    In the context of legal unreasonableness, which was the principal focus of Ground 1(b), it is not the task of this Court to reach a view of what would be objectively reasonable and supplant its view for the Minister’s decision if the Minister’s decision does not conform to that view: Stretton at [21]. As Allsop CJ stated in Stretton at [12]:

Crucial to remember … is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

84    The applicant relied on four particulars in respect of Ground 1(b):

Mental health issues – Discretion

(vi)    accepting that “[the applicant’s] conduct has resulted from his bipolar disorder and noted that this casts some doubt on the credibility of some of his claims, such as those alleging affiliation with particular extremist groups”. (Statement of Reasons, “Protection of the Australian Community” at [54]).

…

No criminal history, no adverse or qualified ASIO security assessment – Discretion

(x)    noting that the Applicant has “no recorded criminal history”. (Statement of Reasons, “Protection of the Australian Community” at [54]).

(xi)    taking into account submissions that the Applicant “has never been charged with any offences and has been subsequently cleared from any investigations by ASIO and the police on the basis that [the applicant] is not an adverse security risk”. (Statement of Reasons, “Protection of the Australian Community” at [60]).

Non-refoulement obligations – Discretion

(xii)    accepting that “Australia has international non-refoulement obligations” in respect of the Applicant. (Statement of Reasons at [68]).

85    The first three of these matters have been dealt with earlier in the context of Ground 1(a). The fourth matter concerned Australia’s non-refoulement obligations. As noted when summarising that aspect of the Minister’s decision at [21] above, at R[67] and R[68], the Minister accepted a number of matters which favoured granting a visa:

67.    I have had regard to submissions made on [the applicant’s] behalf regarding [the applicant’s] protection claims. I accept that my Department has found that [the applicant], if returned to Syria, would face a well-founded fear of persecution at the hands of the Assad-led regime or opposing rebel forces including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance.

68.    I accept the Department’s finding that [the applicant] is a person in respect of whom Australia has international non-refoulement obligations. This means that removal of [the applicant] to Syria would breach those obligations. I also accept that there is currently no known prospect of removal to any other country.

86    The Minister further concluded that the statutory consequence of his decision was that the applicant would become liable to removal from Australia as soon as reasonably practicable, notwithstanding the existence of non-refoulement obligations, explaining at R[69]:

69.    I am aware that the statutory consequence of a decision to refuse to grant [the applicant] a visa is that, as an unlawful non-citizen, [the applicant] would become liable to removal from Australia under section 198 of the Act as soon as reasonably practicable, and in the meantime, detention under section 189. I am also aware that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful non-citizen.

87    The Minister recorded at R[70] the practical difficulties which would be faced by the applicant in applying for another visa:

70.    I have noted that the obligation to remove [the applicant] would not apply if, following my refusal to grant him a Temporary Protection (subclass 785) visa, he is granted another visa. However, I am aware that as a result of a refusal decision under section 501(1), there will be significant restrictions on his ability to apply for another visa. In particular, I understand that [the applicant] will be prevented by section 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless I determine, under section 48B of the Act, that section 48A of the Act does not apply to him). Application for a visa other than a protection visa will be subject to section 501E of the Act, which will apply to [the applicant] as a result of my refusal decision under section 501(1). This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994)), which he could only apply for in response to an invitation.

88    He referred at R[71] to the possibility of a visa being granted under s 195A:

71.     I am mindful that even if I refuse to grant [the applicant] a Temporary Protection (subclass 785) visa, I have a personal non-compellable power in section 195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [the applicant’s] favour, he will be liable to removal as soon as reasonably practicable in accordance with section 198 of the Act, including to Syria, having regard to section 197C.

89    The Minister did not consider exercising the power under s 195A at the time of making the present decision. Nor did he apparently assess the likelihood of a visa being granted under s 195A at some future point in time. It was not suggested on this application that the Minister erred in some way, or acted legally unreasonably, in this respect.

90    The Minister submitted that it was premature to investigate whether the applicant might be returned to a country other than Syria. That would occur after conclusion of the court processes in relation to the refusal to grant the protection visa. At the time of making the decision, there was no known place to which the applicant might be removed. The Minister submitted that it was not open to the Court to conclude that the Minister had decided to return the applicant to Syria in breach of Australia’s non-refoulement obligations.

91    In this context, the Minister referred to the statement of Government policy to be found at paragraph 10.1(6) of ‘Direction No 65: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’:

In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should continue to hold a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s protection visa were cancelled, they would face the prospect of indefinite immigration detention.

92    He also referred to the statement which was made in the Explanatory Memorandum (at [1142]) when s 197C was introduced, that:

Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.

93    Finally, in this regard, the Minister submitted that there was another alternative if, after investigation, it became apparent that the only place to which the applicant might be removed was Syria. The other alternative was said to be the grant of a visa. The Minister submitted that indefinite detention was not a possibility. As mentioned, both parties proceeded on that basis.

94    It might be thought odd that the Minister would, on the one hand, refuse a visa on character grounds because the applicant was considered to pose a risk in terms of s 501(6)(d)(v), but later exercise a personal non-compellable power under s 195A to grant a visa because (as the Minister said at R[71]) he considered it in the public interest to do so. However, noting that indefinite detention was stated not to be an option, if it becomes clear after further investigation that the only option available to the Department is to remove the applicant to Syria in breach of Australia’s non-refoulement obligations, then the considerations shift such that the Minister may decide to grant a visa. In any event, the present issue is whether the Minister could lawfully make the decision he did at the time and in the circumstances in which he did.

95    Notwithstanding the considerations mentioned above which favoured granting a visa, the Minister concluded at R[77] to R[80]:

77.    I found that the Australian community could be exposed to significant harm should [the applicant] engage in conduct similar to that threatened. I could not rule out the possibility of [the applicant] engaging in serious conduct akin to that threatened. I have found that the potential harm is so great that any likelihood that it would occur represents a significant risk to the Australian community.

78.    Further, in light of the nature and seriousness of the claims and threats made by [the applicant] and the current global context, I considered that the Australian community would expect that [the applicant] would not be granted a protection visa.

79.    I found the above considerations in favour of refusal outweighed the countervailing considerations in [the applicant’s] case, including the potential harm for [the applicant] if he is returned to Syria, Australia’s international non-refoulement obligations, and his mental health concerns.

80.    I am cognisant that where significant harm could be inflicted on the Australian community, even strong countervailing considerations are generally insufficient for me not to refuse the visa. In the present circumstances, I found that the risk posed by [the applicant] to the Australian community is unacceptable.

96    The Minister gave consideration to the “strong countervailing considerations” which favoured granting a visa to the applicant. He concluded those considerations were insufficient to justify the grant of the visa. That conclusion might be characterised by some as surprising or harsh in light of the low level of perceived risk to the Australian community, compared to the consequences which flow to the applicant from the decision.

97    As is evident from its terms, a main purpose of s 501 is protection of the Australian community – see also: Stretton at [15] (Allsop CJ). The breadth of the discretionary power to cancel a visa under s 501(2) on character grounds was examined by Griffiths J in Stretton at [65] to [71]. The power to refuse to grant a visa under s 501(1) is similarly broad. Sections 501(1) and 501(6)(d)(v) are to be read in the context of the purposes of the Act as a whole. One such purpose is expressed in s 4 as: “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. The concept of the “national interest” is necessarily broad.

98    The applicant accepted in oral argument that it was open to the Minister to conclude that the applicant posed a low threat in the sense that there was a low chance of the relevant conduct occurring. The nature of the consequences to the Australian community if the relevant conduct occurred were not suggested to be other than potentially serious.

99    The Minister was faced with a difficult decision, balancing the low threat of serious harm to the Australian community with potentially life-threatening consequences to the applicant. Not everyone would agree with the result as a matter of merit. This Court’s role is limited to ensuring that the Minister acted within the bounds of legality: Stretton [12] to [13] (Allsop CJ). There must be a point at which a perceived risk is so unlikely, or the nature of the risk is so trivial, that a decision to refuse a visa under s 501(1), on the basis that the Minister was not satisfied that a visa applicant passed the character test by reason of s 501(6)(d)(v), would be legally unreasonable in circumstances where the consequences of the decision are of the kind they are here. It has been accepted that “proportionality” has a role to play in the sense that an obviously disproportionate response might be a pathway to a conclusion that the decision was unreasonable: Stretton at [57] (Griffiths J), citing Li at [74]; see also Stretton at [15] and [21] (Allsop CJ). That concept obviously cannot become a back door way of introducing merits review, as was made clear in Li and Stretton.

100    Here, there was a rational basis for the Minister to conclude that there was a low risk of relevant conduct occurring and that, if the applicant were to carry out in Australia a threat of the kind he had made in the past, the consequences would or could be extremely serious. The Minister’s decision that, in those circumstances, a protection visa should not be granted, notwithstanding the heavy considerations which weighed against such a conclusion, was one a decision-maker could reach without committing jurisdictional error on the basis of legal unreasonableness.

101    Accordingly, Ground 1(b) fails. This conclusion follows irrespective of the issues raised by the non-disclosable information. Nevertheless, I will summarise the parties’ contentions on that issue.

NON-DISCLOSABLE INFORMATION

102    With respect to the Minister’s reliance on non-disclosable information, the applicant submitted:

(1)    While the Minister was entitled to take the non-disclosable information into account, he was also required to undertake a weighing exercise in relation to the importance of that non-disclosable information. This is particularly important where, as in this case, the applicant is unable to comment on the information.

(2)    The non-disclosable information could not, or there was no basis to conclude that it did, have weight sufficient to result in the denial of the applicant’s visa application in light of the following:

(a)    First, the applicant did not have a criminal record in Australia.

(b)    Secondly, the applicant had provided the Minister with a police clearance certificate from the United Arab Emirates which evidenced that the applicant did not have a criminal record in the UAE, where the applicant worked for a number of years.

(c)    Thirdly, ASIO waited for almost two years to interview the applicant after he was detained by the Minister, evidencing that there was no urgency to conduct such interview.

(d)    Fourthly, after the ASIO interview, ASIO did not issue the applicant with an Adverse Security Assessment or a Qualified Security Assessment. Indeed, there was no evidence ASIO took any further action concerning the applicant.

(e)    Fifthly, on the limited occasions when the applicant had contact with police, he was not taken to a police station for further questioning or assessment.

(f)    Sixthly, it should be inferred from the matters above that neither the NSW Police nor ASIO accepted the applicant’s threats as genuine. Therefore, there was no basis for the Minister to accept the threats were genuine.

(g)    Finally, the Minister’s reliance on the non-disclosable information, combined with considering the “current global context”, had the consequence that some of the Minister’s conclusions were unable to be understood, for example R[55].

103    The Minister submitted:

(1)    The applicant bore the onus of establishing that the decision was legally unreasonable.

(2)    The Minister relied on non-disclosable information in reaching his decision, but that information was not before the Court, and therefore the applicant was unable to discharge his onus. The Minister referred to two decisions of Tracey J: Sagar v O’Sullivan (2011) 193 FCR 311; Plaintiff M46 of 2013 v Minister for Immigration and Border Protection (2014) 139 ALD 277.

(3)    Even if the Court considered that either the Minister’s:

(a)    satisfaction that the applicant did not pass the character test; or

(b)    exercise of discretion under s 501(1) to refuse to grant a visa,

was legally unreasonable on the material which was disclosed in the Minister’s reasons, the applicant had to persuade the Court that the non-disclosable information could not supply the deficiency. Without that information being before the Court, the applicant could not do so.

(4)    There was no way for the Court to conclude that the non-disclosable information, whatever it was, could not outweigh the matters identified at [102(2)] above, even assuming the matters there stated to be accurate (which would involve speculation).

(5)    The failure by the Minister to tender the information was not unexplained because the Minister, by his written submission, stated that he considered the information to be the subject of public interest immunity. Accordingly, the Minister was precluded from putting the information into evidence (Sagar at [52]–[54]) and no adverse inference could be drawn from his not doing so: McGuiness v New South Wales (2009) 73 NSWLR 104 at [147]–[148] (Hall J); SS v Australian Crime Commission (2009) 224 FCR 439 at [94] (Jagot J).

(6)    Therefore, even if the applicant could persuade the Court that, on the matters disclosed in the Minister’s reasons, the decision was legally unreasonable, Ground 1 must still fail.

104    The Minister’s reasons have not been shown to be legally unreasonable on the material which has been disclosed. It is, accordingly, unnecessary to determine whether:

(1)    as the applicant submitted, the non-disclosable information “could not have, or there was no basis to conclude that it did have, a weight sufficient to result in the denial of the applicant’s visa application”; or

(2)    as the Minister submitted, Ground 1 had to fail even if it had been established on the basis of the disclosed information that the Minister’s decision was illogical or unreasonable, because the applicant would not have been able to show that the non-disclosable information did not supply a basis for the conclusions reached.

GROUNDS 2 TO 5

Ground 2

105    Ground 2 was as follows (omitting the particulars, emphasis in original):

2.    The Respondent breached the rules of natural justice by failing to notify the Applicant:

(a)    that the Applicant’s behaviour would be considered in “the current global context”;

(b)    that such consideration would form a significant and / or serious part of the Respondent’s decision-making process; and

(c)    of the definition of “the current global context” used by the Respondent in the decision-making process.

106    Grounds 3, 4 and 5 – which rely upon the same particulars as Ground 2 – also revolve around the Minister’s use of the phrase “current global context”. Those grounds were (omitting the particulars):

3.    The Respondent erred in relying on an unexplained phrase, “the current global context”, in the Statement of Reasons.

4.    The Respondent erred in failing to explain the meaning of the phrase “the current global context” in the Statement of Reasons.

5.    The Respondent erred in failing to provide reasons, relating to the meaning of the phrase “the current global context” and the manner in which the Respondent applied the meaning of this phrase, in the Statement of Reasons.

The meaning of “current global context” and the Minister’s reasons

107    The Minister used the phrase “current global context” on six occasions. The first was at R[21], at the end of the Minister’s discussion as to whether the applicant had, among other things, met with a representative of Al Qaeda from June 2013 to November 2013 as he had asserted:

21.    While the veracity of the claims made by [the applicant] during the police interview on 4 February 2014 remains unclear, I have found that the fact that he made those claims at all may demonstrate an ideology of security concern, which I take seriously particularly given the current global context.

108    On this application, the Minister submitted:

Read in context, the Minister’s meaning is clear. His point is that the possibility that the applicant might subscribe to the ideology of terrorist or extremist groups (such as Al Qaeda) is a possibility that must be taken seriously, as modern experience of Islamist terrorism and terrorist attacks around the world teaches that such ideologies can and do represent a real danger.

109    I accept that submission. The meaning of the paragraph as a whole was sufficiently clear. It applies also to R[45] referred to below.

110    The second and third uses of the phrase were at R[45] and R[46], where the Minister stated:

45.    … I have found that, even if his claims about his associations with extremist groups are not true, the very fact that [the applicant] has repeatedly made those claims may demonstrate an ideology of security concern, which I take seriously particularly given the current global context …

46.    Although I consider there is a low likelihood of [the applicant] carrying out his threats, I consider it to be more than a minimal or remote chance. Further, I considered that the threats made by [the applicant] cannot be ignored in the current global context. In this respect, I considered that, in the event that any of [the applicant’s] threatened activity (including his threat to blow himself up) was carried out in Australia, this would likely result in significant harm to the Australian community.

111    The Minister submitted in relation to R[46]:

Again, the Minister’s meaning is clear. His point is that threats of the kind the applicant is alleged to have made cannot be sloughed off as fanciful, given experience around the world of Islamist terrorism and terrorist attacks.

112    I accept that submission. As was submitted, that was also the point being made in R[55], R[66] and R[78], which were as follows:

55.    On balance, however, I have found [the applicant’s] conduct to be serious in nature, having regard to the current global context and the non-disclosable information. I have placed significant weight on this consideration

66.    However, I considered that the Australian community would place greater weight on the need to protect the Australian community in light of the nature and seriousness of the claims and threats made by [the applicant] and the current global context, and would expect that [the applicant] would not be granted a protection visa. I have placed significant weight on this consideration.

78.    Further, in light of the nature and seriousness of the claims and threats made by [the applicant] and the current global context, I considered that the Australian community would expect that [the applicant] would not be granted a protection visa.

113    The Minister submitted, and I accept, that the “current global context” to which the Minister was referring was “the notorious fact that, at present, Islamist terrorism by organisations such as Al Qaeda and ISIL is a real and global threat”.

Was there a denial of natural justice?

114    The applicant submitted that natural justice applies to decisions made by the Minister under s 501(1) of the Act, citing: BRK15 v Minister for Immigration and Border Protection [2016] FCA 1570; Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542 at [52]; Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [18]. It may be accepted that natural justice applies. However, the content of what natural justice requires is affected by the statute. I note that in BRK15, the Court was apparently not referred to the statutory provisions referred to below.

115    Subdivision AB of Div 3 of Pt 2 of the Act is entitled “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. The first section in the subdivision is s 51A, subs (1) of which provides:

51A    Exhaustive statement of natural justice hearing rule

(1)    This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

116    Section 57, which is also within subdiv AB, provides:

57    Certain information must be given to applicant

(1)    In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:

(a)    would be the reason, or part of the reason:

(i)    for refusing to grant a visa; or

(ii)    for deciding that the applicant is an excluded fast track review applicant; and

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

(c)    was not given by the applicant for the purpose of the application.

(2)    The Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)    invite the applicant to comment on it.

117    When s 57 is read with s 51A(1), the result is that s 57 deals exhaustively with information which the Minister must give to an applicant to whom s 57 applies to meet the requirements of the natural justice hearing rule: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 525; see also: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [8]. Senior Counsel for the applicant submitted that s 57 only sets out a minimum standard or a “baseline”. That submission cannot be reconciled with the language of s 51A and was unsupported by authority.

118    The “current global context” was not information particulars of which the Minister needed to provide to the applicant under s 57. That is because it was not considered by the Minister to be “specifically about the applicant or another person and … not just about a class of persons of which the applicant or other person is a member”: s 57(1)(b). Senior counsel for the applicant insisted that the “current global context” was information “specifically about” the applicant as a “matter of association”, which I understood to mean because the applicant’s individual conduct was assessed against the “current global context”. The “current global context” is plainly not information “specifically about” the applicant. The fact that the information is relevant or applied to the applicant, or the applicant’s position is compared against it, does not mean the information is “specifically about” the applicant – see, for example: VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at [45]; SZVCZ v Minister for Immigration and Border Protection (2017) 252 FCR 540 at [2], [5], [67]-[69]. At least so far as concerns the meaning of “specifically about”, s 424A(3)(a) is not materially distinguishable from s 57(1)(b) – cf: Plaintiff M174 at [9], [10].

119    The applicant relied upon Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. In that case, the Full Court (Northrop, Miles and French JJ) stated at 591E-F (citations omitted):

1.    The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it …

2.    The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material …

120    At 590-591, the Full Court stated (citations omitted):

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

121    The passage set out immediately above was approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32].

122    In Degning v Minister for Home Affairs [2019] FCAFC 67 at [12], Allsop CJ – after referring to Alphaone and SZBEL – summarised the common law position by stating that the applicant was “entitled to have his mind directed to the critical issues or facts on which the decision was likely to turn unless the recognition of the issue was, from the material with which he was provided, an obvious and natural conclusion to draw”. His Honour also stated at [13]:

… One should look at the whole of the circumstances including the documents given to [the applicant] to assess whether he had his mind directed to the critical issues or factors on which the decision was likely to turn and to be informed of the nature and content of relevant material. In that assessment, it is relevant to assess what is or is not an obvious or natural evaluation of the material which need not be the subject of particular attention being drawn. The ultimate touchstone is fairness.

123    Justice Collier agreed with Allsop CJ at [43]. I reached a different conclusion on the application of the principles to the facts, but did not disagree with the statement of principle: at [146]-[154].

124    Subdivision AB did not apply in Degning. Degning concerned the cancellation of a visa under s 501(2) on character grounds. Subdivision AB deals with applications for visas, not cancellations of visas.

125    As noted earlier, s 57 is an exhaustive statement of what the natural justice hearing rule required of the Minister in relation to information which the Minister had to give the present visa applicant. He did not have to inform the applicant that his conduct and circumstances would be assessed in the “current global context”. However, if that conclusion is wrong, the principles set out above by reference to Alphaone, SZBEL and Degning did not require the Minister to do more than he in fact did.

126    The Minister sent the NOICR on 7 August 2017. It included (references to attachments omitted):

In assessing whether you pass the character test, the decision-maker will have regard to an incident involving New South Wales (NSW) Police that occurred on 12 January 2014 where you allegedly stated that you wished to return to Syria and blow yourself up. In response to the NSW Police Report, the decision maker will consider that, while you did state that you wished to kill yourself in Syria, you claim that you did not threaten to “kill [yourself] and others with [a] bomb strapped to [your] chest” as stated in departmental records. In considering this, the decision-maker will also note that, on 20 April 2015, you again threatened to blow yourself up if you were returned to Syria.

The decision-maker will also consider a statement provided by NSW Police on 16 June 2017 with attached excerpts from a police notebook regarding an interview held with you on 4 February 2014. During this interview you referenced, among other things, meeting with a man representing Al Qaeda from June 2013 to November 2013, meeting with an Australian Caucasian man who you met at the Chester Hill mosque and a warehouse containing ‘RPGs’. You further referenced training you have received, including a six month period of training on Sumbawa Island.

Furthermore, the decision-maker will have regard to threats you have made against other detainees and service provider staff whilst in immigration detention and your self-declared association with Osama Bin Laden’s son. The decision-maker will also consider allegations made against you that you have been involved in recruiting fellow detainees to fight for Islamic State of lraq and the Levant (ISIL) in Syria whilst in immigration detention.

The decision-maker may also consider other information which is ‘non-disclosable information’ as defined in section 5(1) of the Migration Act. That means the decision-maker, in making a decision under section 501(1), may have regard to information which will not be provided to you.

Invitation to comment

Before the decision-maker considers whether to refuse to grant you a visa, you have an opportunity to comment or provide information on any factors you believe to be relevant to whether you pass the character test and, if the decision-maker considers that you do not, as to why your visa application should nevertheless not be refused.

While you are under no obligation to do so, you may wish to comment or provide information, including, in particular, information regarding the following:

    Your alleged statement to NSW Police on 12 January 2014 that you wished to return to Syria and blow yourself up and your subsequent statement on 20 April 2015

    Any links you have or have had with Al Qaeda or persons associated with Al Qaeda

    Any links you have or have had with ISIL or persons associated with ISIL

    The nature of any physical or weapons training you have received

    The nature of your association with the Australian Caucasian man you met at the Chester Hill mosque referenced in Attachment 4

    Threats you have made whilst in immigration detention against other detainees and service provider staff

    Any other information you wish to provide regarding your character, including information that may have already been provided to the Department.

127    As can be seen, the Minister clearly notified the applicant that he would be considering whether the applicant had links to Islamist terrorist organisations, including Al Qaeda and ISIL. He notified the applicant that he would be considering whether or not the applicant had engaged in terrorism-related conduct, including receiving physical or weapons training.

128    It was an obvious and natural evaluation of the material provided to the applicant that the Minister would consider the applicant’s threats to blow himself up and his assertion that he had received training on Sumbawa Island and had links to overseas based terrorist organisations in the context of global threats of terrorism or the “current global context”.

129    The Minister noted in submissions that the applicant appears to have understood at the time that that would be the case:

(1)    in his response dated 4 September 2017 the applicant submitted he had “no connections to extremist groups in Australia or in any other countries”;

(2)    the applicant’s statement dated 30 August 2017 stated: “I do not have, nor have I ever had, links to Al Qaeda, Osama Bin Laden, ISIL or any other religious group or organisation operating in Australia, Syria or any other country”;

(3)    in the character reference from Ms Anna Buch, in response to the applicant’s statement to police that he was related to Osama Bin Laden and that he thought that was funny, Ms Buch said she “immediately explained that, in light of what had been happening around the world that this was certainly no laughing matter”.

130    The Minister also submitted that, even if natural justice required that the applicant be notified that the Minister would take into account the “current global context”, any failure to do so would not give rise to a jurisdictional error unless it was material. He submitted that the applicant would need to persuade the Court that giving the applicant such notification could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 at [45]–[46] per Bell, Gageler and Keane JJ.

131    The Minister submitted:

The essential point the Minister was making was that Islamist terrorist ideologies and threats are to be taken seriously in the modern world. That proposition is self-evidently true, and could not be gainsaid by the applicant. Nor can it realistically be supposed that the applicant’s submissions, for instance seeking to deny any connection with groups such as Al Qaeda and ISIL, could have been any different from those which he put forward.

132    In response, the applicant submitted that had he been so notified he would have furnished a “dissertation on the various types of Islamic followings and sects and different attitudes to violence and terrorism”. It was also said he would have explained he was “a Sunni non-combatant … antagonistic to terrorism and murder and so on and … [explained] where he stood in relation to the other Sunni tribes or sects”. Where “materiality” is in issue, the question of the materiality of the breach is an ordinary question of fact to be determined on the basis of the evidence adduced on the application, including from inferences drawn from that evidence: SZMTA at [46] (Bell, Gageler and Keane JJ). It is not clear from the evidence adduced on this application what the applicant could have said beyond what he did say in his Response, which was to deny any links whatsoever, contrary to some of the things he had said in 2014 and 2015, referred to earlier. Ultimately, however, it is unnecessary to decide, there having been no obligation on the Minister to put the relevant information to the applicant, and the basis of the ultimate decision having in any event been sufficiently drawn to the applicant’s attention for comment before it was made.

Grounds 3, 4 and 5: Adequacy of reasons

133    Grounds 3, 4 and 5 contended, in various alternative ways, that the Minister’s reasons were inadequate in failing to explain what was meant by the phrase “the current global context”.

134    The obligation to provide reasons is imposed by s 501G(1). Section 501G(4) provides:

A failure to comply with this section in relation to a decision does not affect the validity of the decision.

135    A failure to comply with s 501G does not affect the validity of the decision: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [37] (Gleeson CJ, Gummow and Heydon JJ), [55] (McHugh J). Accordingly these grounds must fail.

136    In any event, the reasons were adequate. The applicant relied upon the decision of Flick J in SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 at [18] where his Honour stated:

Even if it were possible … to distil from an administrator’s statement of reasons those findings of fact and those reasons which have led to an ultimate conclusion, reasons may still expose jurisdictional error in the present statutory context if they are so structured and set out that they are not “intelligible” because they fail to explain in understandable terminology why an application for a protection visa has been unsuccessful. Even where a document may contain all necessary findings of fact and all the reasoning as to why those facts have led to a particular conclusion, jurisdictional error may be exposed where the findings and reasons are presented in such a manner that they remain confusing and confused to the audience to which they are directed. The purpose sought to be achieved by a legislative requirement to provide reasons is certainly hindered in such circumstances.

137    The reasons in the present case were intelligible. These grounds of appeal must fail.

GROUND 6

138    Ground 6 was as follows:

The Respondent failed to consider relevant material.

Particulars

The Respondent failed to consider that the Applicant had been in the Australian community for over 12 months (from approximately 16 January 2013 until 3 February 2014), without being charged with any criminal offence, or receiving an adverse or qualified security assessment from ASIO, or carrying out any “threats”.

139    In order to succeed on this ground, the applicant must establish that it was mandatory to consider the “relevant material” referred to in Ground 6 allegedly not taken into account.

140    As the Full Court noted in Singh at [31], a statute might require a decision-maker to consider a matter by:

(1)    expressly stating that the decision-maker must consider the matter; or

(2)    necessary implication because the consideration is a mandatory one having regard to the subject matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

141    Sections 54 and 55 provide:

54    Minister must have regard to all information in application

(1)    The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

(2)    For the purposes of subsection (1), information is in an application if the information is:

(a)    set out in the application; or

(b)    in a document attached to the application when it is made; or

(c)    given under section 55.

(3)    Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

55    Further information may be given

(1)    Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

(2)    Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

142    As explained earlier, these provisions (found in subdiv AB) apply to the present applicant – see also: Ogawa v Minister for Immigration and Border Protection (2018) 159 ALD 138 at [35] (Logan J); DLF16 v Minister for Immigration and Border Protection [2017] FCA 1072 (Murphy J).

143    The Minister was required to consider the information “in the application” (s 54) and any additional relevant information submitted before the Minister has made the decision: s 55(1).

144    Before the protection visa application was made, the applicant had, by letter dated 8 July 2015, made a request for the Minister to exercise his discretion under s 195A or s 197AB to allow him to be released into the community and remain in Australia. In that letter, the applicant referred to the 12 month period in question. He had stated:

My use of English may not be perfect and definitely not fluently but I do not pose a risk to the Australia Community, as evidenced by my peaceful existence in Sydney for 12 months I spent in the Australian Community on a bridging visa. I am a person of good character. However I live in constant fear of being returned to a situation of danger, now much more serious for me than the situation from which I fled.

145    The applicant’s letter of 8 July 2015 formed attachment 3 to the NOICR which was sent after the visa application was made. The NOICR included (references to attachments omitted):

In assessing whether you pass the character test, the decision-maker will have regard to an incident involving New South Wales (NSW) Police that occurred on 12 January 2014 where you allegedly stated that you wished to return to Syria and blow yourself up. In response to the NSW Police Report, the decision maker will consider that, while you did state that you wished to kill yourself in Syria, you claim that you did not threaten to “kill [yourself] and others with [a] bomb strapped to [your] chest” as stated in departmental records. In considering this, the decision-maker will also note that, on 20 April 2015, you again threatened to blow yourself up if you were returned to Syria.

146    The Minister submitted that he was not required to take into account the specific submission made in the letter dated 8 July 2015 because it did not fall within s 54 (or s 55), which exhaustively stated what the Minister had to take into account.

147    Assuming that s 51A does not foreclose the possibility that mandatory relevant considerations might be implied, it is significant that: (a) ss 54 and 55 specifically identify what must be taken into account when considering a visa application; and (b) subdiv AB is expressed to be a “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. Sections 54 and 55 provide that the Minister must take into account all the information in the application and certain information received subsequently. The statutory language and context do not leave room for an implication that the Minister is required to consider material received before the visa application was made.

148    Whether or not ss 54 and 55 are an exhaustive statement of what the Minister had to take into account, Ground 6 is not made out for the following three reasons expanded upon below:

(1)    First, the applicant has not established that the Minister did not have regard to the letter of 8 July 2015 or the specific submission contained in it.

(2)    Secondly, the relevant submission made in the 8 July 2015 letter was not materially different from the submissions advanced in the Response which were taken into account by the Minister.

(3)    Thirdly, Ground 6 is that the Minister failed to consider “relevant material” being that the Applicant “had been in the Australian community for over 12 months (from approximately 16 January 2013 until 3 February 2014), without being charged with any criminal offence, or receiving an adverse or qualified security assessment from ASIO, or carrying out any ‘threats’”. The applicant has not discharged his onus of establishing that the Minister did not consider those matters. The Minister:

(a)    was clearly aware that the applicant had been in the Australian community for a period before he was put into detention on 3 February 2014; and

(b)    expressly referred to the fact that the applicant had never been charged with a criminal offence and the submission that the applicant had been cleared of being of any adverse interest by ASIO or the police: R[18], R[60].

149    In his application, the applicant was required to set out whether he had been in immigration detention. He stated that he had been in detention from 15 November 2012 until 16 January 2013 and from 3 February 2014 until the date of the application, namely 27 June 2016.

150    In the Response (submitted after the visa application was lodged and in response to the NOICR), the applicant’s representative submitted (emphasis added):

Primary Considerations:

(a)    Protection of the Australian Community from criminal or other serious conduct

The nature and seriousness of the non-citizen’s conduct to date

…

We note that the serious conduct that is alleged against [the applicant] relates to an incident in January 2014 and April 2015, statements provided to the NSW police in February 2014 and alleged threats made against other detainees and a staff-member while in detention in 2015 and other statements. We refer to [the applicant’s] detailed responses to each of the incidences as outlined in his attached Statement of Claims dated 30 August 2017. We emphasis [sic] [the applicant’s] acute bipolar disorder during the period between January 2014 – April 2015, the time during which all of the incidences took place. We draw attention to the medical evidence, including hospital admission reports which substantiate the severity of his health at the time and illustrate that his behaviour was consistent with bipolar disorder as described by the following sources.

…

We submit that [the applicant’s] bipolar disorder is the primary reason for the alleged conduct that has brought his character into question. We submit that [the applicant] was so heavily affected by his mental health during this period that his conduct and the statements he made during this period cannot be taken as being genuinely held or indicative of his actual character. We further note that [the applicant] has never been charged with offences related to the alleged incidences (or for any matters in Australia or in any other country) and we have been advised that [the applicant] has subsequently been cleared from any investigations by ASIO and the police on the basis that [the applicant] is not an adverse security risk. We further note that the alleged threats made by [the applicant] to other detainees were provoked and that [the applicant] has never perpetrated any harm or violence against any person, nor been subjected to further disciplinary action aside from referrals for medical assistance.

We note that since April 2015, [the applicant’s] health has improved significantly, his behavior has stabilized and his conduct has been exemplary, as demonstrated by the certificate of good behaviour and letter of acknowledgement of good behavior provided by the DIBP, as well as the character testimonies from members of the community who have known [the applicant] for many years. We submit that the evidence indicates that [the applicant’s] acute mental health concerns between 2014-2015 are held in isolation, triggered by a period of extreme stress brought on by the situation in his home country of Syria, information received that his mother had died and further exacerbated by being re-detained in a high security detention facility. We note that [the applicant] did not experience any episodes of this nature prior to 2014, and has not experienced any further acute mental health concerns since 2015 and that his condition is now being managed very effectively.

We submit that in light of [the applicant’s] mental health during 2014-2015, his history of no criminal offences, his reported clearance from ASIO and the police and his conduct before and after this time, the alleged conduct is not serious in nature and should not result in the refusal of his Temporary Protection visa application.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

…

As set out above, we submit that [the applicant’s] conduct relied upon by the DIBP does not amount to serious conduct, and that the incidences and the statements made during 2014-2015 were not a genuine reflection of his character but were made whilst suffering from acute bipolar disorder. We reiterate that since 2015, [the applicant’s] health has stabilized and is now being managed effectively, that he has no previous criminal history and that he has excellent community support to assist him if he is released from detention. We submit that prior to 2014 and following 2015, [the applicant] had not experienced acute episodes of bipolar and that he has been advised that the deterioration in his mental health was due to extreme stress in his life. We submit that in this context, the risk that [the applicant] poses to the Australian community if he engages in similar conduct is very low.

…

We submit that considerable weight must be given to the reported findings of ASIO and the police, who have both investigated and cleared [the applicant] in relation to any security risks that he poses to Australia.

151    The reference to “his conduct before … this time” must be a reference to his conduct before the period from January 2014 to April 2015.

152    The point being made by these passages in the Response was that the applicant’s acute mental health issues occurred during a particular period – January 2014 to April 2015 – and that both before and after that period he had conducted himself in a manner which indicated that he should not be regarded as a risk. It was submitted that the events which occurred between January 2014 and April 2015 should be regarded as isolated and primarily caused by the applicant’s mental illness.

153    To succeed on Ground 6, the applicant must establish that the Minister did not consider material which he was required to consider. It is clear that the Minister considered the Response. He expressly referred to it at R[7] and then repeatedly referred to the applicant’s submissions in the course of his reasons in terms which made it clear that he was dealing with the Response.

154    At R[9], the Minister specifically referred to the letter of 8 July 2015:

9.    [The applicant’s] explanation of the circumstances of this incident is set out in his letter of 8 July 2015, in which he requested that the Minister for Home Affairs exercise his discretionary power under section 195A or 197AB of the Act. That letter included a copy of the request made by NSW Police to the NSW Department of Health for a mental health assessment of [the applicant]. I have taken into account NSW Police’s description of the incident on 12 January 2014, as set out in the request form. According to that request form, [the applicant] stated that his mother had died in Syria, that he now wanted to die, and that he wanted to go back to Syria and blow himself up.

155    At R[12], the Minister noted that the incident of 12 January 2014 was stated to be “out of character”, which must at least include a comparison of the relevant event with past conduct. At R[13] to R[16], the Minister stated:

13.    I have also noted the earlier submissions made by [the applicant] in his letter of 8 July 2015. In those submissions, [the applicant] claimed that he did state to police that he wanted to die and kill himself in Syria because the Syrian government had killed his mother, but that he never threatened to kill himself and others with a bomb. He stated that he only mentioned a bomb to the police as he was referring to the way his mother was killed.

14.    Further, [the applicant] stated that he was under psychological and emotional pain at the time, that he suffered from bipolar disorder as a child and that his use of English may not have been clear to the police. As such, [the applicant] believed that the police officer misunderstood him, and that, had the police believed he was a threat, he would have been taken to a police cell instead of a hospital.

15.    In considering [the applicant’s] submissions regarding this incident, I have noted that [the applicant] has specifically stated that “I must have said a lot of things that I cannot remember at that moment in time because of the news my mother had passed away”.

16.    Having regard to NSW Police’s descriptions of the incident, as set out in the documents mentioned above, as well as [the applicant’s] explanations, I am satisfied that [the applicant] did make a threat to kill himself with a bomb on this occasion, although he may no longer remember this himself. I have made this finding despite having accepted that [the applicant] has no criminal history in any country, and having had regard to his United Arab Emirates Police Certificate, which contains a certification provided by Dubai police that [the applicant] had no previous convictions as at 1 November 2016.

156    At R[44], the Minister stated:

44.    I have accepted that [the applicant’s] previous conduct, as described by NSW Police and Serco staff in the documents mentioned above, has resulted from his bipolar affective disorder, and that his mental health and behaviour have improved since April 2015. I have also considered the submissions made by [the applicant’s] migration agent that his conduct does not amount to serious conduct and is not a genuine reflection of his character.

157    At R[54], R[59] and R[60], the Minister stated:

54.    On the other hand, I have accepted that [the applicant’s] conduct has resulted from his bipolar disorder and noted that this casts some doubt on the credibility of some of his claims, such as those alleging affiliation with particular extremist groups. Further, I have noted that [the applicant] has no recorded criminal history.

59.    I noted that it has been submitted that [the applicant’s] mental health concerns between 2014 and 2015 should be “held in isolation”, and were triggered by a period of extreme stress following the receipt of information that his mother had died and by being re-detained in a high security detention facility. His migration agent noted that, prior to 2014 and following 2015, [the applicant] has not experienced any acute episodes of bipolar and submitted that, in this context, the risk that [the applicant] poses to the Australian community if he engages in similar conduct is very low. I noted that [the applicant] has also submitted that he does not pose a risk to the Australian community.

60.    I noted the submissions that [the applicant] has never perpetrated any harm or violence against any person, nor been subjected to any further discipline action since April 2015 aside from referrals for medical assistance. I have also taken into account submissions that [the applicant] has never been charged with any offences and has been subsequently cleared from any investigations by ASIO and the police on the basis that [the applicant] is not an adverse security risk.

158    Whilst the Minister did not expressly mention that the applicant was living in the community for a period of approximately one year before 3 February 2015, the applicant has not discharged the onus of establishing that the Minister failed to consider the applicant’s conduct in the community before being placed in detention on 3 February 2014, or that the Applicant “had been in the Australian community for over 12 months (from approximately 16 January 2013 until 3 February 2014) without being charged with any criminal offence, or receiving an adverse or qualified security assessment from ASIO, or carrying out any ‘threats’”.

159    The conduct which occurred on 12 January 2014 occurred at a massage parlour, and it was plain from the material before the Minister that those events occurred at a time when the applicant was in the community. It is also evident from the Minister’s reasons that the Minister had regard to the fact that the applicant had never been charged with a criminal offence (either before, as a consequence of, or after the relevant conduct in 2014 and 2015) and the submission that the applicant had been cleared of being of any adverse interest by ASIO or the police: R[18], R[60].

160    The Minister considered the applicant’s submission that his conduct in the period January 2014 to April 2015 should be regarded as “isolated”. The absence of an express reference to the particular 12 month period before 3 February 2014 (apart from the event of 12 January 2014) is explained by the absence of express reference to that period in the applicant’s Response, which was the document which articulated the applicant’s response to the NOICR. It is also explained by the fact that it was part of a broader question, namely whether the applicant’s conduct in the period January 2014 to April 2015 was out of character – cf: WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593 at [47]. Answering this question necessarily incorporated consideration of previous and later conduct. The Minister was not required to perform a line by line analysis of every matter relevant to the particular submission put, or to refer to every part of every document before him.

161    The lack of a reference to the specific 12 month period might also be seen to be explained by it being subsumed in the broader question of whether the applicant posed a risk when his only conduct of concern occurred in the period January 2014 to April 2015. The Minister accepted that the events between January 2014 and April 2015 were caused by the applicant’s mental illness and should be assessed in that context, and noted the applicant’s submission that he had not experienced any acute episodes before or after that period. The Minister’s reasons show that, although he accepted that, nonetheless, he took the view that the applicant posed a risk for the purposes of s 501(6)(d)(v).

162    Finally, the Minister submitted that the applicant had not established that any failure to consider was “material” to the outcome. The Minister submitted:

Given that the Minister explicitly considered the applicant’s more recent good conduct, but nonetheless reached the conclusions he did, there is no realistic prospect that consideration of a period of good conduct several years ago, prior to the conduct of concern, would have made any difference.

163    The Minister did have regard to the applicant’s earlier conduct, and dealt with it appropriately in light of the way in which it had been raised in the applicant’s Response. The question of “materiality” does not arise.

164    It follows that Ground 6 fails.

CONCLUSION

165    The appeal must be dismissed with costs.

Associate:

Dated:    17 June 2019