FEDERAL COURT OF AUSTRALIA

Mouflih v Minister for Home Affairs [2019] FCA 1744

ORDERS

THE COURT ORDERS THAT:

1.    The time for the making of the applicant’s application for judicial review of the respondent’s decision of 14 August 2018 to not revoke the cancellation of the applicant’s visa (decision) be extended to 22 March 2019.

2.    The respondent’s decision is quashed.

3.    The respondent make the decision according to law.

4.    The respondent pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    On 20 October 2017, the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1994 (Cth) (the Act), on the basis that he was serving a term of over twelve months imprisonment.

2    On 14 August 2018, the respondent (the Minister) personally made a decision under s 501CA(4) of the Act to not revoke the cancellation.

3    The applicant has applied for an extension of time to seek judicial review of the Minister’s decision. The application was filed on 22 October 2018, eleven days outside the time limit imposed by s 477A(1) of the Act. The delay is not substantial. The applicant’s explanation is that he was under the misapprehension that the solicitor representing him would take steps to protect his interests. The solicitor has accepted responsibility for the misunderstanding. I consider that the applicant has provided a reasonable explanation for the delay.

4    The Minister opposes an extension of time on the basis that the proposed application for review lacks merit. As will be seen, I consider that there is merit in the application. I will allow the extension of time and proceed to consider the application for review.

5    The first ground of review alleges that the Minister made a jurisdictional error by failing to consider several documents allegedly sent on the applicant’s behalf to the Department of Immigration and Border Protection (the Department). The second ground alleges that the Minister’s decision was illogical or unreasonable.

6    I will describe the Minister’s decision, before turning to consider the grounds of review.

The decision under review

7    The applicant is a citizen of Morocco. In 2006, he met an Australian citizen, Susan Mouflih. They married in 2009. The applicant was granted a Partner (Provisional) visa in 2014.

8    On 31 August 2017, the applicant was convicted of assault occasioning bodily harm in the Magistrates Court of New South Wales. The victim was his wife. They were drinking and got into an argument. He lashed out at her while he had a glass of wine in his hand, cutting her face. The applicant was sentenced to 18 months imprisonment, with a non-parole period of three months.

9    On 20 October 2017, the applicant was notified that his visa had been cancelled, and invited to make representations to the Minister about revoking the decision.

10    The applicant completed a form entitled “Request for Revocation of a Mandatory Visa Cancellation under s 501(3A)”. In that form, the applicant set out his reasons for requesting revocation for the decision and provided details about his personal circumstances, the hardship that his removal would cause to him and his wife, and other matters. Mrs Mouflih posted the form, together with other material in support of the revocation of the cancellation decision, to the Department. The material was received by the Department on 20 November 2017.

11    On 14 August 2018, the Minister made his decision to not revoke the cancellation decision. The Minister’s reasons noted that the applicant and Mrs Mouflih had made representations seeking revocation. The Minister stated that he had assessed all of the information that was set out in the attachments to his reasons.

12    The Minister stated that he had considered the strength, nature and duration of the applicant’s ties with Australia, the extent of the impediments the applicant would face if removed to Morocco, the nature of the offending and risk to the Australian community. The Minister noted that Mrs Mouflih had said she would not remain in Australia if her husband were deported, but would return to Morocco with him. The Minister stated that he had considered the consequences of the decision for Mrs Mouflih. The Minister found that there was a risk, albeit a low one, that the applicant would reoffend. The Minister considered that, should the applicant reoffend in a similar manner, it could result in serious physical or psychological harm to members of the Australian community.

13    The Minister concluded:

73.    I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by s501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, Mr MOUFLIH.

74.    I concluded Mr MOUFLIH has made representations in accordance with the invitation.

75.    I am not satisfied that Mr MOUFLIH passes the character test (as defined by s501).

76.    In addition, I have considered the length of time Mr MOUFLIH has made a positive contribution to the Australian community (four years) and the consequences of non­revocation of the original decision for his wife.

77.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the crime committed by Mr MOUFLIH, that is of a violent nature including of a domestic nature.

78.    Further, I find that the Australian community could be exposed to harm should Mr MOUFLIH reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr MOUFLIH given the recent nature of his offending and that his conduct has not been tested in the community.

79.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr MOUFUH represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed his claims that he will suffer hardship if returned to MOROCCO and the hardship Mr MOUFLIH, his wife and social networks will endure in the event the original decision is not revoked.

80.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Mr MOUFLIH’s visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr MOUFLIH’s Class UF Subclass 309 Partner (Provisional) visa remains cancelled.

14    The Minister’s reasons attached a list of the material that he had considered.

The application for review

15    The applicant’s originating application alleges that the Minister’s decision is affected by jurisdictional error because:

(a)     The [Minister] failed to afford the Applicant procedural fairness because the [Minister] overlooked sufficiently important information sent to him on behalf of the Applicant, and that failure denied the Applicant the opportunity to make submissions about a matter material to his decision, such that it resulted in a “practical injustice”;

(b)     The [Minister’s] decision was illogical or unreasonable because the [Minister’s] conclusion that the Applicant had a low risk of reoffending and, as such, posed a risk to the Australian community (that is, the Applicant’s wife), was not supported by the materials before him.

16    The applicant was initially represented by a firm of solicitors. Those solicitors withdrew shortly before the initial hearing date. However, the applicant was able to obtain pro bono representation by Mr Carter of counsel, who prepared written submissions, and then Mr Jones of counsel, who represented him at the final hearing.

17    The focus of the appeal was upon the first ground. That ground is concerned with whether the Minister committed jurisdictional error by failing to consider several documents alleged to have been sent to the Department by Mrs Mouflih.

The evidence

18    Mrs Mouflih provided evidence on behalf of the applicant. She deposed as follows:

3.    On 16 November 2017 I sent a bundle of documents to the Department of Home Affairs by registered post…

4.     Included in the bundle of documents I sent to the Department of Home Affairs on 16 November 2017 was:

(a)    the Applicant’s signed requested for revocation form dated 14 November 2017…

(b)    a copy of an application I had made to vary or revoke an the apprehended violence order placed on the Applicant …

(c)    a copy of a Notice of Appeal to the District Court of New South Wales dated 31 August 2017 (annexed and marked SMM06 is a copy of the Notice of Appeal to the District Court dated 31 August 2017);

(d)    a copy of a letter I had given to the Magistrates Court at Armidale regarding the Applicant’s sentencing …

(e)    copies of letters from my general practitioner Dr Robert Cruickshank

i.    6 September 2017 …

ii.    13 September 2017 …

iii.    dated 20 September 2017 …

…

6.    The Respondent’s Statement of Reasons contained a table of evidence or material considered by the Respondent in making his decision. The table does not refer to the documents listed above at subparagraphs 4(b) to 4(e).

(Emphasis in the original.)

19    Mrs Mouflih was cross-examined at the hearing. Under cross-examination, Mrs Mouflih said that on 14 November 2017, she made a copy of the bundle of documents she sent to the Department. She said that it consisted of 281 pages. She said she later cross-referenced the document list (attached to the Minister’s reasons) against the copy of the bundle she had kept. She identified documents that were in her copy but not in the list, and notified the applicant’s lawyer of those documents.

20    Mrs Mouflih said she prepared a list of documents entitled “Supporting Documents” that was included in the bundle. Item 28 was, “Any other information”. Mrs Mouflih agreed that the list did not expressly refer to any of the documents in contention. She said she just put them all under the one subheading.

21    Mrs Mouflih said she printed out two copies of each document. She placed one copy on one side and the other copy on the other side. When asked whether it was possible that in the course of collating the bundle, she missed out some documents from her copy, she responded, “No, absolutely not”. She maintained that the copy of the documents she kept was exactly the same as the documents she placed into the envelope.

22    The Minister relied upon an affidavit of Ms Maria Rizza, an employee of the Department of Home Affairs. Ms Rizza is employed as the Assistant Team Manager in the Pipeline Management Team of the National Character Consideration Centre (NCCC). She has been in that role since January 2018.

23    Ms Rizza deposed as follows:

3.    As part of my role, I oversee the receipt and processing of post to the NCCC, and its storage on a document management system. As a result of my employment with the Department, I am familiar with the usual process of the receipt and storage of post. The usual process involves the following:

(a)    hard copy post is opened by a team called the “Converga” (which was recently changed to the “Decipha”) team. This team is made up of people who are contracted with the Department;

(b)    the Converga team date-stamp the hard copy documents and provide the documents, including any envelopes, to staff within the Pipeline Management Team;

(c)    a member of staff in Pipeline Management Team takes a complete scan of the hard copy documents received from the Converga team and stores the PDF on an electronic document management system called “HPE Records” (which was previously called “TRIM”);

(d)    the original hard copy bundle is then sent to storage; and

(e)    the Revocation team has access to the PDF document on HPE Records, which forms the basis of briefing to the Respondent.

4.    I am not aware of any recent changes to the usual process and believe that it was the same process in place in November 2017.

5.    I am aware that an issue in this proceeding concerns whether or not the NCCC received the following documents:

(a)    letter to Armidale Magistrates Court from Mrs Mouflih;

(b)    Mrs Mouflih’s application to vary the apprehended violence order;

(c)    Notice of Appeal to the District Court of New South Wales; and

(d)    letters from Dr Cruickshank dated 6, 13 and 20 September 2017 (together, the Contentious Documents).

6.    On 14 January 2019, I arranged for the hard copy documents held in storage that the NCCC received in relation to the Applicant’s file to be recalled from storage. The first page of the hard copy bundle is date-stamped “20 November 2017”. I have been unable to determine who from the Converga team opened the documents received and I am not aware of any record of this. Given the size of the hard copy bundle, I have not attached a copy of it to this affidavit.

7.    On 15 January 2019, I checked the hard copy bundle of the documents to see if it contained any of the Contentious Documents (which I have seen for this purpose). Based on my review, the hard copy bundle does not contain the Contentious Documents.

8.    Based on my review of HPE Records, the PDF bundle of the hard copy documents was uploaded at 3.13 pm on 21 November 2017. The person recorded as having uploaded the PDF bundle no longer works in my team.

9.    Also on 23 January 2019, I checked the PDF on HPE Records in relation to the Applicant’s file. I checked the PDF against the hard copy bundle, and they were consistent. The only differences that I could make out were:

(a)    that the PDF bundle had intermittent white pages, which I take to have been introduced in the PDF as part of the scanning process; and

(b)    the hard copy document contains two further pages, exhibited here as “MR-1”. These documents are not contained in the PDF bundle. I do not know why these two pages were not in the PDF.

10.    Again, I have not attached the PDF bundle to this file given its size.

11.    Based on my review, the PDF file on HPE Records does not contain the Contentious Documents.

12.    I have no reason to think that the hard copy bundle or the PDF held on the Applicant’s file have been adjusted or amended.

13.    If the Contentious Documents had been received by the NCCC, I would expect to have found them in the course of taking the steps outlined above.

24    The Minister filed a further affidavit of Ms Rizza to which were annexed the hard copy bundle of documents and the PDF bundle of documents referred to in her previous affidavit.

25    Ms Rizza was not required for cross-examination.

Consideration

Consideration of Ground 1

26    The applicant alleges that he was denied procedural fairness because the Minister failed to consider several documents sent by Mrs Mouflih to the Department, and that failure was material to the Minister’s decision.

27    The Minister’s decision was made under s 501CA(4) of the Act. That section provides:

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

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

(b)    the Minister is satisfied:

…

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

28    The application for review has been made under s 476A(1)(c) of the Act, which confers original jurisdiction on the Federal Court of Australia in relation to a privative clause decision, or purported privative clause decision, made personally by the Minister under s 501CA. Pursuant to s 476A(2), that jurisdiction is the same as the jurisdiction of the High Court of Australia under s 75(v) of the Constitution. The remedies provided by s 75(v) of the Constitution are only available for jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [83]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [46].

29    In Viane v Minister for Immigration and Border Protection (2018) FCAFC 116, the Full Court held at [30], [41]–[42] that where the Minister overlooks sufficiently important material provided by, or on behalf of, the applicant which, if accepted, would or could be dispositive of the decision, there may be jurisdictional error: see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]; Hay v Minister for Home Affairs [2018] FCAFC 149 at [10].

30    The applicant contends that the Minister overlooked six documents that were sent by Mrs Mouflih to the Department, namely: a letter applying to revoke the Apprehended Violence Order (AVO) made against the applicant; the applicant’s notice of appeal to the District Court of NSW; a letter to the Armidale Magistrates Court; and reports from Dr Cruickshank dated 6, 13 and 20 September 2017 (collectively, the Contentious Documents).

31    The Minister accepts Mrs Mouflih posted a bundle of documents to the Department and that the bundle was received by the Department on 20 November 2017. The Minister accepts that he is taken to have received the documents that were received by the Department. However, the Minister contends that the Contentious Documents were never posted to, and never received by, the Department.

32    The onus of proving there was jurisdictional error is on the applicant. It is necessary for the applicant to demonstrate that:

(1)    The bundle of document sent by Mrs Mouflih and received by the Department included the Contentious Documents.

(2)    The Minister’s failure to consider one or more of the Contentious Documents was material to the outcome of the Minister’s decision.

33    The Minister accepts that Mrs Mouflih believes she placed the Contentious Documents in the envelope together with the other documents she sent to the Department. However, the Minister argues Mrs Mouflih is mistaken in that belief. The Minister submits that Ms Rizza’s evidence demonstrates there is no reason to think the documents went missing within the Department.

34    Mrs Mouflih’s evidence was that she printed off two copies of each of the documents, placing each copy in a separate pile. She placed one pile of the copies in an envelope and posted it to the Department. She retained the other one. When she later checked the retained documents against the list of documents the Minister said he had considered, she found that the list did not refer to the Contentious Documents. From that, Mrs Mouflih inferred that the Department had received the Contentious Documents, but that the Minister had not considered them.

35    Mrs Mouflih was a patently honest witness, and the Minister did not contend to the contrary. She seemed to me to be a careful person who attended assiduously to the provision of submissions and documents to the Minister, given the vital importance of the decision to her future and the future of her husband. It is unlikely that she was mistaken in her evidence that she placed the Contentious Documents into the envelope posted to the Department. If she had not, there would probably have been two copies left over in the retained documents, rather than only one. The other possibility is that Mrs Mouflih may have mistakenly printed off only one copy of the Contentious Documents, but that was not suggested to her. In any event if that happened, she is likely to have noticed, given her system of placing the printed documents in two piles. I accept, on the balance of probabilities, that Mrs Mouflih placed the Contentious Documents into the envelope that she posted to the Department.

36    Ms Rizza deposed that if the Contentious Documents had been received, she would have expected to have found them. However, there are several factors that cause me to doubt her evidence.

37    Ms Rizza was not appointed to the Pipeline Management Team until January 2018. She deposed that she was not aware of any recent changes to the process presently in use, and believes that it was the same process in place in November 2017. Her belief cannot stem from her own knowledge, and she has not deposed as to the source of her belief. At best, it is unsourced hearsay. That affects the reliability of that aspect of Ms Rizza’s evidence.

38    Ms Rizza deposed that the process presently used is for hard-copy post to be opened by a team called “Converga Team” (now the “Decipha Team”) comprised of people contracted to the Department. She deposed that the Converga team date-stamps the hard-copy documents and provides them to staff within the Pipeline Management Team. A member of the Pipeline Management Team scans the hard-copy documents and stores the PDF versions on an electronic management system. The original hard-copy bundle is then sent to storage.

39    There are two inconsistencies or gaps in Ms Rizza’s evidence. The first is that Ms Rizza’s evidence that “the Converga Team date-stamp the hard copy documents” does not appear to be accurate. The material produced by Ms Rizza as the hard-copy bundle of documents provided by Mrs Mouflih has only the first page date-stamped. Therefore, it is not correct to suggest that all the hard-copy documents are date-stamped.

40    The second is that Ms Rizza provided no evidence as to the processes by which the hard-copy documents are handled and delivered to the Pipeline Management Team, and then handled by staff in the Pipeline Management Team. Those processes are solely within the knowledge of the Minister’s Department. Given the applicant’s case is that the Contentious Documents must have gone missing after being received by the Department, it is to be expected that a Departmental officer would explain the processes. It cannot be inferred that in November 2017, there was any process in place designed to minimise the misplacement of documents.

41    There is a further reason for doubting the Minister’s submission that the Contentious Documents are unlikely to have been misplaced. Ms Rizza deposed that she located two pages in the hard-copy documents retained by the Department that were not in the PDF bundle. I infer from Ms Rizza’s evidence that it is the PDF bundle which was eventually provided to the Minister. She was unable to explain why those pages were not in the PDF bundle. The error demonstrates that the system used by the Department is fallible. That fallibility meant two pages of the documents provided by Mrs Mouflih were not considered by the Minister. The Minister’s statement that he had considered “all evidence available to me” was therefore incorrect. Ms Rizza’s evidence leaves open the possibility that there may have been other documents received by the Department that were not considered by the Minister.

42    I find that the bundle of documents posted by Mrs Mouflih to the Department included the Contentious Documents. I find that the Department received those documents. It is probable that the Contentious Documents were misplaced by the Department. They were not included in the PDF bundle placed before the Minister. I find that the Minister failed to take into account the Contentious Documents.

43    The next question is whether the Minister’s failure was material to the outcome of the Minister’s decision. In Hossain v Minister for Immigration and Border Protection (2018) 35 ALR 1; [2018] HCA 34, the plurality held at [25] that jurisdictional error is an expression, not simply of the existence of error, but of the gravity of that error. The plurality observed at [30] that a statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance, and the threshold will not ordinarily be met if complying with the relevant condition could have made no difference to the decision. In Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40, the Full Court observed at [33] that the question is whether the applicant has been deprived of the realistic possibility of a successful outcome.

44    The Minister’s reasons demonstrate that he took into account a range of factors found in the material that had been brought to his attention. Those factors included the following:

18.    Mr MOUFLIH submits that his wife will suffer tremendous financial and emotional hardship if he were to be removed from Australia...

19.    I note that Mr MOUFLIH submits that the emotional strain of being separated is taking its toll on his wife, adding that his wife is currently on medication for 'diminishing health' due to stress and states that the 'mental and financial pressures on her are immense'. He states that his wife is attending counselling to help her deal with the situation.

20.    In a submission Mrs Mouflih submits that she has never faced such a stressful period in her life and that her life is currently in limbo. Mrs Mouflih adds that the whole situation has resulted in a steady decline in her mental health to the point where she is struggling with daily life.

…

26.    I have considered the effect of non-revocation upon Mr MOUFLIH's immediate family in Australia and accept that his wife would experience emotional, practical and financial hardship…

…

36.    …His wife has stated that she will not remain in Australia in the event that her husband is deported, but will return to Morocco to be with him.

…

42.    Mr MOUFUH lodged an appeal against the severity of his sentence, however he withdrew this appeal and the original sentence and conviction was confirmed by the District Court at Armidale on 11 October 2017.

…

44.    I note that the Magistrate also imposed an Apprehended Violence Order (AVO) for a period of 12 months for the protection of Mrs Mouflih.

45.    I have considered that the conviction of 31 August 2017 is Mr MOUFLIH's only conviction in Australia and Morocco.

46.    However, I view domestic violence of any level of severity as a serious matter. While I accept that Mr MOUFLIH's conduct was a single incident, I accept the Magistrate's description of his offending as a 'shocking incident'. Taking into account the circumstances of Mr MOUFLIH's offending and the disposition of 18 months imprisonment, I find Mr MOUFLIH's offending to be serious.

…

52.    In her submission, Mrs Susan Mouflih submits that the incident that occurred was not the 'domestic violence' that was stated. She noted that they had never had a single physical altercation before and that what happened was the result of a complete breakdown due to their homeless situation and the complete poverty they were suffering. Mrs Mouflih describes the incident as nothing but an 'unfortunate incident'.

53.    Mrs Mouflih submits states that she is to blame as much as her husband and does not consider herself a victim. She adds that she tried on numerous occasions to have the AVO withdrawn as well as the charges against her husband, however states that she was ignored by the police and the courts.

…

71.    Notwithstanding the assessment of Mr MOUFLIH's good behaviour in prison and in immigration detention, his attendance at a session of counselling, the support he has from his wife and the community and his offers of employment, I find that there is a risk that Mr MOUFLIH will reoffend, albeit a low risk. In making this finding I gave weight to the recent nature of his offending, the existence of an AVO to protect Mrs Mouflih, and the fact that Mr MOUFLIH's conduct has not been tested in the community.

72.    Nonetheless I am mindful of the Magistrate's remarks that conduct such as Mr MOUFLIH's has 'the potential of losing an eye or two eyes or being disfigured, scarred for the rest of your life'. I consider that should Mr MOUFLIH reoffend in a similar manner, it could result in serious physical or psychological harm to members of the Australian community.

…

79.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr MOUFUH represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed his claims that he will suffer hardship if returned to MOROCCO and the hardship Mr MOUFLIH, his wife and social networks will endure in the event the original decision is not revoked.

45    The first of the Contentious Documents was an application by Mrs Mouflih seeking revocation of the AVO made by the Armidale Magistrates Court on the basis that she no longer feared for her safety. The Minister noted at paragraph 53 of his reasons that Mrs Mouflih had tried on numerous occasions to have the AVO withdrawn. If the Minister had considered the application to revoke the AVO, it would have added nothing of relevance to the material he considered, and could have made no difference to the decision.

46    The second of the Contentious Documents was a Notice of Appeal to the District Court of New South Wales. The appeal was against the sentence imposed upon the applicant on the basis that it was too severe. The Minister noted at paragraph 42 of his reasons that the applicant had lodged an appeal against the severity of his sentence, but had withdrawn the appeal. If the Minister had considered the notice of appeal, it could have made no difference to the decision.

47    The third of the Contentious Documents was a letter sent by Mrs Mouflih to the Armidale Magistrates Court, seeking a revocation of the sentence of imprisonment imposed on the applicant. In her letter, Mrs Mouflih said the police had not followed her wishes and were given false information about the domestic violence incident. She said that she had tried to rectify the matter, but was told nothing could be changed as the applicant had already entered a plea of guilty. She said her health had deteriorated because of the isolation she was experiencing from the impact of being separated from her husband. She said the New South Wales police had failed in their duty of care to her as a victim, and she had no control over her life. She said she no longer feared for her safety and was seeking to revoke the AVO. Mrs Mouflih said that the sentence would probably result in the applicant’s deportation to Morocco, which would result in her relocating to Morocco. She asked for the sentence to be changed to a good behaviour bond.

48    In my opinion, there is nothing of significance in Mrs Mouflih’s letter that was not covered by other material before the Minister. If the Minister had considered the letter, it could not have made any difference to his decision.

49    The fourth, fifth and sixth of the Contentious Documents are medical reports written by a Dr Cruickshank about Mrs Mouflih, dated 6, 13 and 20 September 2017. Dr Cruickshank diagnosed Mrs Mouflih with Adjustment Disorder with Mixed Anxiety and Depressed Mood. The diagnosis was made in the context of domestic violence having been committed against Mrs Mouflih.

50    The Minister noted at paragraph 20 of his reasons that Mrs Mouflih submitted she had never faced such a stressful period in her life and had experienced a steady decline in her mental health to the point that she was struggling with daily life. She made that submission in the context of the cancellation of her husband’s visa and his possible deportation. Although the Minister acknowledged the submission, the Minister made no finding upon it. The Minister accepted at paragraph 26 that the applicant’s deportation would cause Mrs Mouflih emotional hardship, but that was not a finding upon her claim that her mental health had declined to the point where she was struggling with daily life. The relevance of Dr Cruickshank’s reports was that his diagnosis of Mrs Mouflih with a psychiatric illness provided support for Mrs Mouflih’s claim of, not merely emotional hardship, but a deteriorating mental state. The reports added weight to her claim that her (already impaired) mental health had declined to the point that she was experiencing substantial hardship.

51    The claim having been raised that Mrs Mouflih would suffer hardship if an adverse decision were made, the Minister’s obligation was to consider, in the sense of actively thinking about, that claim. The Minister was not required to make a finding upon Mrs Mouflih’s claim about her deteriorating mental state. However, if the Minister had read Dr Cruickshank’s reports, together with the other material before him, he may have found that Mrs Mouflih’s psychiatric condition had deteriorated to the point where she was struggling with daily life due to the impending deportation of her husband. Mrs Mouflih was the victim of the applicant’s offence, but evidently considered that she had also been made a victim of the cancellation decision. The Minister expressed concern in his reasons about the impact of the offence upon Mrs Mouflih. The impact of the decision upon Mrs Mouflih obviously weighed heavily upon the Minister, as is indicated by his references to the emotional and other hardship she would face. It is impossible to know whether or not the weight added to Mrs Mouflih’s claim that her mental health had declined to the point that she was experiencing substantial hardship by the evidence that Mrs Mouflih already suffered from a psychiatric condition would have tipped the balance in favour of revocation of the cancellation decision. But it may have. The Minister’s failure to consider Dr Cruickshank’s reports denied the applicant the realistic possibility of a successful outcome. That is not a high threshold.

52    I am satisfied that the applicant has established there was jurisdictional error by reason of the Minister’s failure to consider Dr Cruickshank’s reports.

Consideration of Ground 2

53    The applicant’s second ground of review is that the Minister’s decision was illogical or unreasonable because his conclusion that the applicant had a low risk of offending and posed a risk to the Australian community (that is to the applicant’s wife) was not supported by the materials before him.

54    The applicant submits that there was no basis upon which the Minister could find that there was a low risk of offending against Mrs Mouflih. The applicant notes that Mrs Mouflih had said that they had never before had a single physical altercation, that what happened was the result of their homelessness and that the incident was simply an unfortunate incident. The applicant submits that the Minister gave the existence of the AVO undue weight without consideration of the broader circumstances, or that Mrs Mouflih had sought to have it withdrawn. The applicant submits that the segment of the Australian community that needed protection from the applicant was a community of one—this wife. He submits there was no evidence that suggested the applicant posed a risk to any other person.

55    The applicant’s argument seems to be that the only conclusions logically or reasonably available to the Minister were that, firstly, there was no risk of harm to Mrs Mouflih, and, secondly, she was the only person in the Australian community who was even conceivably at risk of harm. However, the applicant had committed a violent crime. As was observed by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, “determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future”. It was not illogical or unreasonable for the Minister to conclude that, having engaged in violent conduct in the past, the applicant might do so again in the future. The Minister was not obliged to accept the protestations of the applicant and Mrs Mouflih to the contrary. Further, Mrs Mouflih was not the only person in the Australian community who might be subject to the risk determined by the Minister to exist. As Katzmann J observed in Martin v Minister for Immigration and Border Protection [2017] FCA 1, it is always possible a relationship might break down, and that a domestic-violence offender will form new relationship and expose other women to a risk of harm. I reject the applicant’s second ground of review.

56    The application for review must succeed on the first ground. The decision must be quashed and the Minister required to make the decision according to law. I will order that the Minister pay the applicant’s costs of the application.

Associate:    

Dated:    25 October 2019