FEDERAL COURT OF AUSTRALIA

Taualii v Minister for Home Affairs [2019] FCA 2013

ORDERS

THE COURT ORDERS THAT:

 1.   The application be dismissed.

 2.   The applicant pay the first respondent’s costs of and incidental to the application.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The applicant is a citizen of Tonga, but has lived in Australia since 1976. He seeks judicial review of a decision of the Minister for Home Affairs under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation of the applicant’s Class BF transitional (permanent) visa. The applicant, having been found guilty in 2013 of armed robbery, aggravated burglary and intentionally causing serious injury, was imprisoned at the time of the Minister’s decision.

2    The applicant contends that the Minister made various errors in reaching his decision. In summary, the applicant argues that the Minister committed jurisdictional errors by:

(1)    misconceiving the applicant’s claims, or otherwise making an irrational finding, by stating that the applicant’s rehabilitation had “not been tested in the community”;

(2)    erroneously or irrationally finding that the applicant had not provided “further details” evidencing his claim that seven of his children will be in his full custody in the future;

(3)    failing to afford the applicant procedural fairness by not seeking further information about the applicant’s medical conditions; and

(4)    failing to give proper consideration to whether the lesser standard of health and social services in Tonga would pose personal hardship to the applicant.

3    For the reasons expressed below, these challenges to the Minister’s decision must fail. No jurisdictional error was committed by the Minister as alleged by the applicant. The applicant’s judicial review application to this Court is accordingly dismissed.

Background

4    The applicant arrived in Australia as an infant in 1976. He is now 45 years old. With the exception of his infancy, and certain periods between 1988 and 1992, the applicant has lived in Australia all his life.

5    During this time, the applicant fathered 11 children. Nine of these children were minors at the date of the Minister’s decision, each aged between 4 and 17. Each was an Australian citizen.

6    The applicant’s nine minor children were born to three different mothers. With one ex-partner, the applicant had four children. With another ex-partner, the applicant had two children. The applicant also had two children with his fiancée.

7    The applicant has had a long history with motorcycle gangs. He acknowledges that he was formerly a member of the Rebels, Bandidos and Hells Angels. This includes being the President of certain Chapters of the Rebels and Bandidos for a period of time.

8    In January 2009, the applicant, with certain others, invaded the home of someone known to the applicant and his co-offenders through their membership of motorcycle clubs. One of the applicant’s co-offenders kicked down the front door of the victim’s home. The victim was forced to kneel in his bedroom. The victim’s shoulders were held by two of the applicant’s co-offenders. The applicant was sitting on the victim’s bed within arm’s reach. The applicant grabbed the victim by his hair and placed him into a headlock. The applicant pulled the victim close and put a handgun into the victim’s mouth, saying:

I want all the keys to the Harley Davidson's, all the money you've got in the house and today, you're gonna die.

9    The applicant then counted “one, two, three” and pulled the trigger. The victim heard a “click”. Unbeknown to the victim, there was no ammunition in the handgun. The applicant set about loading the handgun. Having done so, he put the gun to the victim’s limbs, and further verbally threatened the victim. The victim was then punched from one side of the bedroom to another. The offenders fled, stealing, amongst other valuable items, the victim’s car and motorcycle. Before leaving, the applicant told the victim that if he went to the police, they would kill him.

10    The applicant and certain co-offenders were later charged in relation to this incident. However, with the exception of a short period in remand, the applicant remained living in the community while his case was being heard.

11    On 19 July 2013, the applicant, and two of his co-offenders, were found guilty in the County Court of Victoria of armed robbery, aggravated burglary and intentionally causing serious injury. They were sentenced on 31 January 2014: DPP v Tangaloa & Ors [2014] VCC 36. The applicant was sentenced to a total effective sentence of eight years’ imprisonment, with a minimum non-parole of five years: ibid at [35]. By that time, the applicant had already served 307 days in pre-sentence detention. In reaching that sentence, the County Court recognised that the applicant had no prior criminal history and was otherwise a man of good character: ibid at [27]. The court also acknowledged that there had been a substantial delay of five years since the date of the offending: ibid at [33].

12    On 12 January 2016, the applicant’s visa was cancelled pursuant to s 501(3A) of the Act. For reference, that provision relevantly provides the following:

Refusal or cancellation of visa on character grounds

…

(3A)     The Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)     …; and

(b)     the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

13    The delegate of the Minister of Immigration and Border Protection was satisfied that the applicant did not pass the character test under s 501(6)(a) of the Act because the applicant had a “substantial criminal record” having been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act.

14    The applicant subsequently made a series of representations seeking revocation of the cancellation of his visa. As will be detailed, this included, amongst other documents, a completed revocation request form and personal details form, and various submissions from the applicant and his family. The applicant’s submissions made clear that his greatest concern was the effect of the visa cancellation on his children. He described his children as the most important part of his life.

15    The applicant stated in these representations that he stopped associating with motorcycle gangs in 2014. However, a “Target Profile” report of Victoria Police (Victoria Police Report) provided to the Minister stated that, in March 2017, the applicant, while he was in prison, had been attempting to join the Comancheros. The report stated that the applicant aligned himself with outlaw motorcycle gangs at every opportunity.

Minister’s decision

16    On 18 June 2018, the Minister for Home Affairs decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa. For reference, that provision provides the following:

The Minister may revoke the original decision if:

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

   (b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

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

17    The Minister provided a statement of reasons for his decision (Minister’s Reasons). The Minister was not satisfied for the purposes of s 501CA(4)(b)(i) that the applicant passed the character test because, as explained, he was serving a term of imprisonment of over 12 months: Minister’s Reasons at [4]-[9] and [97]. The Minister was also not satisfied that there was “another reason” why the visa cancellation should be revoked for the purposes of s 501CA(4)(b)(ii).

18    The Minister acknowledged at [12] that the applicant articulated various reasons why the cancellation decision should be revoked, including that:

-     it is in the best interests of his nine minor Australian citizen children

-     he has substantial familial ties to Australia including his two adult children, fiancée, parents, six siblings, and extended family

-     he has resided in Australia since he was an infant

-     he has contributed to the Australian community through his employment

-     he and his family will suffer hardship if he is returned to Tonga

-     he has no familiarity with Tonga and he would struggle to financially support himself there

-     his motivation for offending was to protect his family

-     he is remorseful for his actions and he is now a practising Christian

-     he is rehabilitated and is no longer affiliated with any outlaw motorcycle gangs.

19    The Minister considered the claims raised by the applicant and found, in summary, that:

(a)    it was in the best interests of the applicant’s minor children that the visa cancellation be revoked: ibid at [13]-[35];

(b)    the applicant had made a positive contribution to the Australian community through his employment and that non-revocation of the visa cancellation would have an adverse effect on the applicant’s two adult children and his extended family: ibid at [36]-[49];

(c)    having regard to the applicant’s lengthy residence in Australia, the absence of family support in Tonga, his lack of familiarity and cultural knowledge, and his health issues, non-revocation would involve significant hardship to him: ibid at [50]-[57];

(d)    having regard to the remarks of the judge who sentenced the applicant, which referred to the applicant’s level of violence, use of firearms, deliberate and brazen conduct and the harm suffered by the victim, the applicant’s offending was very serious: ibid at [59]-[69];

(e)    having regard to the Victoria Police Report, the applicant was a member of an outlaw motorcycle gang which has been involved in criminal conduct: ibid [70]-[73]; and

(f)    although the applicant had submitted that he had ceased all associations with outlaw motorcycle gangs, and his intention is to lead a law abiding life, there is an ongoing likelihood that the applicant will engage in criminal conduct in the future that could result in serious harm to members of the Australian community: ibid at [74]-[94].

20    Having considered these matters, the Minister concluded as follows:

CONCLUSION

…

98.     In considering, in light of Mr TAUALII’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr TAUALII’s minor children …. I found that their best interests would be served by the revocation of the original decision.

99.     In addition, I have considered the length of time Mr TAUALII has made a positive contribution to the Australian community throughout his education and periods of employment and the consequences of non-revocation of the original decision for his other family members.

100.     On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr TAUALII, that are of a violent nature.

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

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

103.     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 TAUALII represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, his claims that he will suffer hardship if returned to Tonga, his employment and ties to Australia, and the hardship Mr TAUALII, his family and social networks will endure in the event the original decision is not revoked.

104.     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 TAUALll'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 TAUALll's Class BF transitional (permanent) visa remains cancelled.

Application for judicial review

21    The applicant sought judicial review of the Minister’s decision on 21 July 2018. He later filed an amended originating application on 28 February 2019. He was unrepresented during this period.

22    On 14 March 2019, Russell Kennedy, a firm of solicitors, filed a notification that they had been appointed as the applicant’s solicitors. They filed a further amended originating application on 30 July 2019.

23    The application was heard on 15 August 2019. The applicant was represented by Dr McBeth of counsel and the Minister was represented by Ms Symons of counsel. Both provided detailed written and oral submissions on behalf of their clients.

24    The applicant’s further amended originating application set out four grounds of review. Because of the various amendments to the originating application, the remaining grounds of review were numbered five, seven, eight and nine. Each of these grounds are considered in turn below.

Ground five – Testing of applicant’s rehabilitation in the community

25    Ground of review five advanced by the applicant contended that

[t]he Minister’s decision-making miscarried because the Minister's satisfaction was based on a misconception that the applicant's rehabilitation had not been tested in the community, or alternatively, that finding was irrational.

26    This ground of review relates to a particular statement made by the Minister in the course of assessing the risks posed by the applicant to the Australian community through re-offending. That assessment was conducted at [74]-[94] of the Minister’s Reasons under the heading “Risk to the Australian Community”. The applicant criticises the statement of the Minister at [91] that the applicant’s “rehabilitation has not been tested in the community”.

Submissions

Applicant’s submissions

27    The applicant contended that the Minister’s statement regarding the applicant’s rehabilitation is plainly incorrect given the applicant spent five years living in the community (apart from a brief period in remand) between being charged with the relevant offence in 2009 and being sentenced in 2014. The applicant argued that his remorse and personal rehabilitation were “tested in the community” during that period.

28    The applicant argued that the Minister, in expressing this statement, misconceived his claims, or otherwise made an irrational finding in the sense that it could not be rationally supported by the evidence before the Minister. The applicant contended that this misconception or irrational finding played a crucial part in the Minister’s conclusion as to the risk of the applicant re-offending.

Minister’s submissions

29    The Minister submitted that the impugned statement reveals no error once it is considered and read in light of the previous paragraphs of the Minister’s Reasons under the heading “Risk to the Australian community”. The Minister’s consideration of the applicant’s rehabilitation was principally aligned with the extent of the applicant’s involvement in outlaw motorcycle gangs. Read in this context, the Minister was simply stating that the applicant’s efforts to distance himself from such gangs had not been tested outside of the custodial environment.

30    In any event, the Minister argued that he did have regard to the applicant’s conduct in a non-custodial environment in the years that preceded his incarceration. The Minister expressly stated so at [74] and otherwise referred to aspects of the applicant’s behaviour prior to incarceration.

Consideration

31    An administrative decision-maker under s 501CA(4) of the Act may commit a jurisdictional error where his or her decision is based upon a misconception of a claim advanced by the applicant. This was explained by Black CJ, French and Selway JJ in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [63]:

It is plain enough … that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.

(Emphasis added.)

32    Such a decision-maker may also commit a jurisdictional error by making a finding, or engaging in reasoning, in the course of his or her decision-making process that is illogical or irrational: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [132] per Crennan and Bell JJ; BZD17 v Minister For Immigration and Border Protection [2018] FCAFC 94; 161 ALD 441 at [34] per Perram, Perry and O’Callaghan JJ; CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [58] per Murphy, Mortimer and O’Callaghan JJ.

33    The legality of the Minister’s consideration of the applicant’s claims regarding his rehabilitation must be assessed against the context and nature of the representations made by, and on behalf of, the applicant. To determine whether the Minister misconceived the applicant’s claims or otherwise made an irrational finding as alleged, it is therefore necessary to first consider the relevant representations made to the Minister.

34    In a handwritten submission received by the Department on 1 November 2017 (First Handwritten Letter), the applicant stated the following:

This is my first time in jail. Up until my incarceration I lived a quiet life and have made a mistake that has cost my Family and myself dearly. I emplore you for a second chance and assure you that what occurred in my situation is totally out of character and will never happen again. Jail has changed me and my life, I am definitely a better person and wish to return to be a constructive community member if my visa is granted. …

(Emphasis added.)

35    Subsequently, on 6 December 2017, the Department wrote to the applicant inviting him to comment further on information relating to the cancellation of his visa. The Department’s letter in particular sought comment on the contents of the Victoria Police Report. The information in that report centered on intelligence holdings regarding the association of the applicant with outlaw motorcycle gangs (otherwise referred to as “OMCGs”).

36    The applicant responded by way of a lengthy handwritten letter dated 27 December 2017 (Second Handwritten Letter), which provided wide-ranging submissions regarding the applicant’s circumstances. Relevantly for current purposes, it expressed the following:

In response to analyst comments Part 1, that I was ‘involved in OMCG’s for some period of time, this is true but in around mid 2014 I left that club and life behind me. I can assure you that I have no affiliations or associations with or anything to do with OMCG’s.

…

Since leaving the Hells Angels around mid 2014, I have absolutely nothing to do with any OMCG’s. I had never ever again tried to join any other OMCG and I absolutely am not trying to join the Comanchero’s. I state here strongly that I do not have any links to any OMCG since mid 2014 and I never ever will.

…

Again I would like to stress the fact that I have no links to any OMCG’s or any criminal elements that is a life I have left behind and deeply deeply regret. I cannot express the remorse and regret I feel and have for my past and the damage I have done to my 11 children and family by not being there for them. Prison has definitely broken me down over these years and my faith in Jesus Christ has shown me the Right Life to live and lead, as a father and Christian I hope I get the chance to give back to my family and society.

I ask again Please Please give me the opportunity to show who I really am and that, Yes, people can change and be rehabilitated.

In relation to my crime, I was only trying to protect myself and my Family, not that it justifies anything. I know what I did was and is wrong. Violence should under NO circumstances ever be used, these matters are left to Police and the proper authorities to deal with. …

(Emphasis added.)

37    There are two critical observations about these submissions. The first is that the applicant was not stating that he had, as a matter of fact as at December 2017, achieved rehabilitation from his previous offending behaviour. He was instead expressing that he had become a better person through his time in prison and that he sought the opportunity to demonstrate his rehabilitation.

38    The second observation is that the applicant himself viewed the extent of his rehabilitation as connected to, or correlated with, his association with outlaw motorcycle gangs. To demonstrate the departure from his previous violent behaviour, the applicant repetitively stated that he had cut his ties with outlaw motorcycle gangs in 2014. This is an understandable response from the applicant in the circumstances. The impetus for the applicant writing his Second Handwritten Letter was the Department’s letter that, as noted, invited particular comment on the Victoria Police Report, which in turn centered on the association of the applicant with outlaw motorcycle gangs.

39    The applicant’s rehabilitation was considered by the Minister at various intervals throughout the Minister’s Reasons. To start, the Minister listed at [12] the reasons articulated by the applicant for why the visa cancellation should be revoked. This list was extracted above at [18], and included the applicant’s claim that “he is rehabilitated and is no longer affiliated with any outlaw motorcycle gangs”. It is evident from this statement that the Minister, like the applicant, was connecting the applicant’s rehabilitation with his ability to separate himself from the gangs.

40    Under the heading “Protecting the Australian Community”, the Minister noted at [58] that he had regard to, in particular, the applicant’s claim that “he is rehabilitated”. Then, after considering various aspects of the evidence, the Minister stated at [84] that he had considered the applicant’s assertion that he was no longer associated with the outlaw motorcycle gangs. The Minister expressed, however, that he remained concerned that the applicant had admitted to associating with such gangs for about nine years, and had held high-profile positions in these gangs. The Minister stated that he held a “guarded view about [the applicant’s] prospects for extricating himself from gangs and leading a law-abiding life in the future”.

41    The Minister continued to consider the applicant’s rehabilitation more specifically. The Minister recognised at [85] the sentencing remark of the County Court judge in January 2014 that the applicant had “good prospects of rehabilitation”. The Minister noted at [86] the applicant’s assertion that prison had a salutary effect on him and that the applicant wished to return to being a constructive member of the community. In this regard, the Minister noted at [86]-[87] that the applicant had participated in various programmes while in prison and, at [89]-[90], that the applicant aspired to work closely with his church upon release into the community.

42    The Minister concluded his assessment of the likelihood of the applicant re-offending as follows:

88.    I have considered Mr TAUALII’s expression of remorse stating ‘I deeply regret my past and want nothing to do with any OMCG’s or any criminal element whatsoever.’ I also note Mr TAUALII has expressed deep regret for damage he has done to his family by not being there for them, and believes he will ‘never fall foul of any Australian Law ever again.’ I have had regard to TAUALII’s regard for a second chance, stating ‘what occurred in my situation is totally out of character and will never happen again’.

89.     I note Mr TAUALII has expressed that his family and children are everything to him, and he is now a ‘born again Christian’, and attends church services regularly. He submits that members of the Church of All Nations have visited him in prison, and have asked him to be an ambassador for them to help children and ex-prisoners turn their lives around as Mr TAUALII has done. I note Mr TAUALII would like to become a youth worker through the Church.

90.     I have considered that Mr TAUALII has ‘a few jobs lined up’ through the ‘Church and Family friends’ upon his release into the community. I also note that he will have support in the community through his family and religious leaders. I find this support will act as a positive influence upon Mr TAUALII and may reduce his risk of reoffending.

91.    I take into account Mr TAUALII’s remorse for his past actions, his efforts at self-improvement and rehabilitation, his behaviour in prison, his resolve to be a role model for his children, and his employment prospects upon release into the community. Notwithstanding this, I also note the very serious nature of his offending, and the fact that his employment and children did not serve as protective factors against his offending previously. I also note Mr TAUALII’s rehabilitation has not been tested in the community.

92.    While I have regard to Mr TAUALII’s submissions that he has ceased all associations with OMCGs and his stated intention to lead a law abiding lifestyle, I view his lengthy association with numerous OMCGs and their suspected involvement in criminal activity with great concern, as well as his very serious and particularly violent offending. I therefore find there is an ongoing likelihood that Mr TAUALII will engage in criminal conduct in the future.

(Emphasis added.)

43    Having regard to the manner in which the applicant’s representations regarding his rehabilitation were advanced, and the way that the Minister considered the applicant’s claims as a whole, my view is that the statement emphasised in the passage above—that the applicant’s rehabilitation had not been tested in the community—does not evidence a misconception of the applicant’s claims.

44    It is true that the applicant had spent most of the period between his offending in 2009 and sentencing in 2014 living in the community. In that sense, the applicant had experienced an opportunity to “rehabilitate” himself by not engaging in further criminal conduct. But that is not the sense in which the Minister referred to the applicant’s rehabilitation. Contrary to the submission of the applicant, the Minister was not stating that the applicant had not experienced any period living in the community since his offending conduct.

45    The Minister was instead responding to the particular representations made by the applicant. Those representations were made in November and December 2017. As at those dates, the applicant did not state he had been rehabilitated. Properly construed, he was instead imploring the Minister to provide another chance in the community to demonstrate that he was rehabilitated. In doing so, the applicant himself tied his rehabilitation to his degree of separation from the gangs in which he had previously participated. As at November and December 2017, the applicant had not had an opportunity to test his rehabilitation (i.e. separation from the gangs) in the community. It will be recalled that the applicant’s evidence was that he had only disassociated himself from the gangs in the middle of 2014, by which time he was already serving his term of imprisonment.

46    The substance of the Minister’s consideration of the applicant’s claims regarding his rehabilitation is consistent with the way in which those claims were advanced. The Minister’s consideration at [74]-[94] of the “Risk to the Australian community” was primarily focussed on responding to the applicant’s own assertions about separating himself from the outlaw motorcycle gangs. It is within this context that the Minister considered the applicant’s rehabilitation. As extracted above, the Minister recognised the applicant’s expressions of remorse and his willingness not to associate with the gangs. He further recognised the applicant’s new engagement with his church community. However, the Minister concluded with words of caution. The applicant’s employment and children had not stopped the applicant from offending in the past. And, in the statement criticised by the applicant, the Minister said that the applicant’s rehabilitation had not been tested in the community. Construed in the manner described above, that statement was correct. The applicant had not had an opportunity in the community to demonstrate the improvements that he claimed in his submissions. Thus, in making the relevant statement, the Minister did not misconceive the applicant’s claims.

47    It should be noted, however, that aspects of the Minister’s Reasons did misstate the applicant’s claims in relation to his rehabilitation. The Minister stated at [12] and [58] that the applicant claimed to be rehabilitated. However, as explained above, the applicant had not submitted that he had achieved rehabilitation. The Minister’s unqualified statements in these paragraphs are incorrect. Nevertheless, my view is that these misstatements did not adversely affect the exercise of the Minister’s jurisdiction. The substance of the Minister’s consideration did not misconceive the claims made by the applicant regarding his rehabilitation.

48    For these reasons, ground five must be dismissed.

Ground seven – Custody of seven of applicant’s children

49    Ground of review seven advanced by the applicant contended that

[t]he Minister erred in finding that he could give no weight to the applicant's submission that he would have full custody of seven children upon release from prison and failing to give proper consideration to the applicant’s submission, on the ground that the applicant had provided no details of his submission.

50    The applicant had nine minor children at the date of the Minister’s decision, each aged between 4 and 17. Each was an Australian citizen.

51    The applicant’s minor children were born to three different mothers. With one ex-partner, the applicant had four children. With another ex-partner, the applicant had two children. The applicant also had two children with his fiancée. These two latter children are referred to as “L” and “S” in these reasons.

52    The Minister considered the best interests of the applicant’s minor children at [12]-[35] of his reasons. This ground of review impugns a particular statement by the Minister at [31]. That paragraph provided the following:

31.     Mr TAUALII states that seven of his children will be in his full custody in the future, however as he has not provided further details, I am unable to place weight on this statement.

(Emphasis added.)

53    The applicant contended that the statement that the applicant had “not provided further details” was erroneous or irrational in light of what the applicant characterised as “the wealth of supporting information provided, at least in relation to the youngest children, [L] and [S]”.

Submissions

Applicant’s submissions

54    The applicant acknowledged that some details about the custody of his children were referred to in earlier parts of the Minister’s Reasons, but contended that the Minister failed to properly connect that information with the applicant’s submission that he would have custody of the children if the visa cancellation was revoked. The applicant argued that, had the Minister given proper consideration to the applicant’s representations, and his supporting evidence, the Minister may have afforded additional weight to the best interests of the applicant’s minor children such that the Minister’s error deprived the applicant of a realistic possibility of a different outcome.

Minister’s submissions

55    The Minister contended that the applicant’s challenge to the Minister’s decision under this ground of review fails to have regard to the Minister’s reasons as a whole. In this regard, the Minister submitted that there has been a move away from the language of “proper, genuine and realistic consideration” in assessing a decision-maker’s reasons and that the relevant question instead directs attention to whether the Minister in this case, as a matter of substance, had regard to the representations put by the applicant.

56    The Minister argued that the applicant’s primary representation was that a decision not to revoke the cancellation of his visa would deprive these children of their father’s “guidance and support”. The Minister submitted that he gave comprehensive, careful and considered evaluation of this representation. Moreover, his relevant finding—that the applicant had not provided further details regarding his assertion that seven of his children would be in his full custody in the future—was open to him. Although the applicant had provided some information concerning the future custody of L and S, there was no evidence as to the situation for the applicant’s other children.

57    Regardless, even if the Minister failed to give sufficient consideration to the children’s future custodial arrangements, the Minister contended that this failure was immaterial to the outcome of the Minister’s decision. This is because the Minister determined (in favour of the applicant) that the consideration of the best interests of the applicant’s minor children weighed in favour of revocation of the cancellation of the applicant’s visa.

Consideration

58    A decision-maker under s 501CA(4) of the Act is required to give active intellectual consideration to clearly articulated representations made by a non-citizen: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 (Carrascalao) at [43]-[46] per Griffiths, White and Bromwich JJ; Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 at [42] per Besanko, Barker and Bromwich JJ; Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 at [54]-[58] per Murphy, Rangiah and O’Callaghan JJ; Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar) at [35]-[37] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ. As expressed by Rares and Robertson JJ in Maioha v Minister for Immigration and Border Protection [2018] FCAFC 216 (Maioha) at [45], “[w]hat is required is the reality of consideration by the decision-maker”. The consequence of a failure to give requisite consideration to such representations is that the decision-maker will not have formed a state of satisfaction of the kind required for the lawful discharge of the power conferred by s 501CA(4) of the Act: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 at [67] per Colvin J.

59    To determine whether or not the Minister in this case gave the requisite consideration to the future custody of seven of the applicant’s children, it is necessary to first consider the representations made by the applicant in that respect.

Applicant’s representations regarding the future custody of his minor children

60    The applicant’s submissions to the Department emphasised the significance of his children to his life. In his First Handwritten Letter, the applicant relevantly noted the following about his children:

1.    … I have a few jobs lined up and eleven children to help raise. Two of which I will have in my full custody.

2.    I have eleven children, all whom reside in Australia and are all Citizens of Australia and who look to me for guidance and support. Especially my youngest two with [my Fiancée]. [L] my 6 year old daughter and [S] my 4 year old son are currently living with my Father-in-law … and Step Mother-in-law … until I am released from Prison. My Fiance [sic] … is an ice addict and has left the children with my in-laws. … We are currently going through a court process … [however,] [i]t is looking more like [my fiancée] will be locked in her current lifestyle for sometime now. … Therefore [L] and [S] will stay with [my in-laws] until I am released. If and when I am released it is agreed upon from all parties that I will have full custody of the kids. I have also attached a copy of a Protection Report prepared by DHHS, CPS and also the details of the people involved in this case. So the most important part of my application is that I am responsible for an exceptionally large amount of children.

…

5.    Also as I have mentioned earlier [my Fiancée] has gone off the rails, in her developing an addiction to ice. DHHS, CPS have intervened upon my request and we have agreed for my in-laws … to take care of my youngest two children [L] and [S] whilst she is trying to sort her addiction situation. However if she fails to overcome her addiction, I will most certainly be the primary carer for [L] 6 and [S] 4 years of age. …

(Emphasis added.)

61    To interpolate, it may be observed that the applicant stated in this submission (in the emphasised passage) that only two of his children would be in his full custody. Although the applicant did not expressly state who those two children were, the subsequent paragraphs of the applicant’s submission suggest it was his two youngest children, L and S.

62    The Department wrote to the applicant on 6 December 2017 inviting him to comment further on information relating to the cancellation of his visa. The applicant responded with his Second Handwritten Letter. Part two of that letter was headed “Submission Re Exceptional Circumstances”. It started as follows:

Now I come to the most important part of my application and of my Life, My 11 CHILDREN. Out World’s would be destroyed if not crushed if we were to be separated indefinitely. I have a very close bond and relationship with all of my 11 Children and we will strengthen our relationships when I am released. At least 7 out of my 11 Children will be residing with me in the near future when I am released. I would also like to address the current situation that my Fiance [sic] … has put my youngest two Children in. Their Mother … is an on going ice addict and is currently under Supervised visits with Department of Health/Human Services and Child Protective Services with the children. No one knows how long it will take [her] to become sober and clean …. My two Children with [my fiancée] are [L] 6 yrs old and [S] 4 yrs old, they often ask me when I am coming home so we can live together. They are currently living with my Father-In-Law … and my Step-Mother-In-Law …. I have spoken to DHSS and they have said as long Immigration is fine and I am not going to be deported, DHHS and CPS will give there full support to a Reunification Order for myself to have Full and Sole Custody of my Children.

(Underline in original and bold emphasis added.)

63    The sentence emphasised in bold in the passage above is the apparent basis for the Minister’s recognition at [31] of his reasons, which will be returned to below, that the applicant had stated “that seven of his children will be in his full custody in the future”.

64    The applicant’s in-laws (L and S’ grandparents) also provided an email dated 27 December 2017 to the Department. Their email relevantly stated the following about the circumstances of L and S:

… We currently have two of [the applicant’s] children ( [L] and [S] …) … through a Court order . Whilst [the applicant] has been incarcerated the past few years [we] received the children march 2017 due to there mothers elicit drug use and her ongoing behaviour . Child protection are involve and through the whole process [the applicant] has supported our decisions regarding the welfare of the children . … [The applicant] is now the only parent to his children here … both children are hoping to reunite with there father when he is up for parole next year and hopefully his visa is renewed , they really want to live with there father in the near future .

65    The Minister also had before him certain consent orders of the Children’s Court of Victoria, which were provided by the Victorian Department of Health & Human Services to the Department of Immigration and Border Protection on 17 October 2017. The consent orders imposed conditions on the applicant’s fiancée’s contact with L and S. The only reference in the orders to the applicant was a condition stating that he had the right to come before that court to request a change of the orders.

66    One observation about these materials is key. Although there are detailed explanations of the circumstances of the applicant and his fiancée, and their two children, L and S, there is a dearth of information about the applicant’s other seven minor children. Indeed, the only specific reference to them in these submissions is the applicant’s statement that “[a]t least 7 out of my 11 Children will be residing with me in the near future when I am released”.

Minister’s consideration of the applicant’s minor children

67    The Minister considered the applicant’s children at [13]-[35] of his reasons under the heading “Best interests of minor children”. The Minister recognised that the applicant had nine minor Australian citizen children, and set out their names: [14], [22] and [23] of the Minister’s Reasons.

68    Given the extensive submissions about L and S, it is understandable that the majority of this section of the Minister’s Reasons was devoted to those two children. The Minister considered the future custody of L and S in the following passages:

15.     In a submission received on 1 November 2017, Mr TAUALII states [S] and [L] are currently living with their maternal grandparents …. Mr TAUALII submits that [the applicant’s fiancée] … is addicted to ‘ice’ and that she left her children in her parents’ care and ‘she refuses to get help and treatment for this addiction’.

16.     Mr TAUALII states ‘DHHS, CPS have intervened upon my request’ and that it has been agreed ‘from all parties’ that he will assume full custody of [S] and [L] if he is released into the community. He submits that child safety services will give their ‘full support’ to a reunification order for Mr TAUALII to have sole custody of [S] and [L]. He describes that being separated from his children, in particular given the situation with [his fiancée], would be harsh and oppressive, and his children’s lives would be ruined to not have a stable parent watching over their every need. I have considered the consent orders for a Family Reunification Order issued by the Children’s Court of Victoria, which outlines conditions in relation to Ms Oakley’s access to [S] and [L].

17.     I have considered the letter from [S]’s and [L]’s grandparents, … who write that Mr TAUALII is very involved in his children’s lives and that [S] and [L] are hoping to reunite with their father and they look forward to living with him in the near future. Upon his release Mr TAUALII intends to relocate to [a new suburb] to enable [L] to remain in her current school. I note [the grandparents] submit that their grandchildren’s lives would be immensely hindered if they are separated from their father.

…

20.     Mr TAUALII submits [S] and [L] often ask when he will be returning home so that they can live together, and that it would be a tragedy for his children to be fostered to strangers. I note Mr TAUALII’s concerns in relation to potential custody arrangements for [S] and [L] if he is removed from Australia, and I have taken this into account.

69    The Minister continued to briefly note the circumstances of the applicant’s other minor children and noted that the applicant had stated that he had contributed emotionally and financially towards the upbringing of his children. Then, in the passage that founds the applicant’s complaint under this ground of review, the Minister expressed the following:

31.     Mr TAUALII states that seven of his children will be in his full custody in the future, however as he has not provided further details, I am unable to place weight on this statement.

70    The Minister completed his consideration of the best interests of the applicant’s minor children as follows:

33.     I have considered Mr TAUALII’s concerns about being separated from his children and for the rights, interests and welfare of his children. He states his children should not be deprived of his emotional support, care, protection, and a relationship with their father, and submits it would impossible for them to visit him overseas due to travel costs.

34.     I have regard to Mr TAUALII’s active role in his children’s lives, and I have taken into account factors indicating a positive and beneficial relationship between Mr TAUALII and his nine minor children, as well as the benefits for them if Mr TAUALII is able to play a positive parental role and provide them with financial, emotional and practical support in their lives.

35.     I find that it is in the best interests of [the applicant’s minor children], that I revoke the original decision to cancel Mr TAUALII’s visa. …

71    In concluding his reasons, the Minister reiterated at [98] that the best interests of the applicant’s nine minor children would be served by the revocation of the cancellation of his visa.

No error by the Minister as alleged

72    In my view, the manner in which the Minister considered the submissions made by the applicant does not establish that the Minister erred in finding that he could give no weight to the applicant’s representation in his Second Handwritten Letter that at least seven out of his 11 children would be residing with him in the near future if he was released.

73    Although the applicant does not expressly explain the identity of the particular seven children he was referring to in the relevant passage of the Second Handwritten Letter, it is likely that he was speaking of his seven minor children other than L and S. The basis for this view is that the sentence that follows the applicant’s statement regarding the seven children, being the fifth sentence of the extract above at [62], transitions (apparently by way of contrast) to the situation that is faced by L and S.

74    If this interpretation is correct, then the Minister’s statement at [31] of his reasons—that the applicant has not provided further details that seven of his children will be in his future custody—is factually correct. Although the applicant provided details of all his minor children in his personal details form dated 1 February 2016, he only expressed an intention to maintain strong ties with them upon his release. He did not state in that form that they would be in his custody. Notwithstanding the clear evidence about the applicant’s desire to maintain and strengthen his relationships with these children, there was no evidence about the future custody arrangements for these children.

75    Moreover, even if the reference to the seven children in the Second Handwritten Letter included L and S, the Minister’s statement at [31], when read alongside his reasons as a whole, does not support an inference that he failed to give the requisite consideration to the representations of the future custody arrangements for L and S. This is clear from the Minister’s separate consideration of L and S at [15]-[20] of his reasons, as was partially extracted above at [68]. In particular, at [16], the Minister expressly recognised the applicant’s submission that he would have sole custody of L and S upon his release. The Minister also acknowledged at [16]-[17] that he had considered other evidence supporting that submission, namely the letter from L and S’ grandparents and the consent orders of the Children’s Court of Victoria. In these circumstances, the Minister’s Reasons, once read as a whole, do not support an inference that the Minister failed to consider the representations regarding the future custody of L and S.

76    To conclude, my view is that, in light of the particular evidence before the Minister, and the submissions made to him, it was open for the Minister to find that he was unable to place weight on the applicant’s statement in his submissions that seven of his children would be residing with him in the near future after being released.

77    For these reasons, ground seven must be dismissed.

Ground eight – Enquiries about health information

78    Ground eight advanced by the applicant contended that

[t]he Minister failed to afford the applicant procedural fairness in relation to the consideration of the health conditions of the applicant.

Applicant’s provision of health information

79    Section 501CA(4)(b)(ii) of the Act, which was extracted above at [16], provides that, where a non-citizen makes representations to the Minister, the Minister may revoke the original decision if he or she is satisfied that there is “another reason” (that is, a reason other than the non-citizen passing the character test) why the original decision should be revoked. Section 501CA(3)(b) requires the Minister to invite the non-citizen to make representations about the original decision for this purpose. On 12 January 2016, the applicant was notified of the cancellation of his visa and invited to make representations regarding that decision, including by completing a particular “personal details form”.

80    The personal details form requested, amongst other matters, information about the applicant’s health. The applicant responded as follows:

HEALTH INFORMATION

Do you have any diagnosed medical or psychological conditions? Yes 🗹 No ☐

If yes, please provide details of the condition/s and explain what treatment you are receiving (e.g. if you are on any prescription medication or you are receiving counselling).

____________________________________________________________________

____________________________________________________________________

____________________________________________________________________

If you are currently being treated by any doctor/health professional/counsellor, please provide their name/s and contact details.

Do you authorise DIBP to contact these persons to discuss relevant information?

Yes. The Doctor here at the Medical Centre.

81    The “Marngonent Correctional Centre”, as referred to in the applicant’s response, is the prison at which the applicant was incarcerated at the time of completing the form on 1 February 2016.

82    There is nothing in the Minister’s Reasons, nor any other evidence, to suggest that the Minister (or the Department on his behalf) made any further enquiries regarding the applicant’s health information, or contacted the medical centre at the applicant’s prison, prior to making his decision.

Submissions

Applicant’s submissions

83    The applicant submitted that it is apparent from his response in the personal details form that he intended that his representations would include medical information to be obtained by the Department from the prison’s medical centre.

84    The applicant contended that, by inviting the applicant to make representations in a particular form, the Minister was under a statutory obligation to consider the representations made. By not obtaining and considering the medical information that the applicant intended to form part of his submissions, the Minister, in the submission of the applicant, breached that statutory duty or denied the applicant procedural fairness. At a minimum, the applicant was required to be given notice if the Minister intended to depart from the expectation set by the form.

Minister’s submissions

85    The Minister acknowledged that the applicant specified the relevant medical centre as the contact point for obtaining medical information. However, the Minister submitted that there was no evidence before him that took the matter of what further information might be elicited from the medical centre beyond the realm of conjecture.

86    The Minister contended that the applicant’s argument does not sit comfortably with established statements of principle regarding the statutory task of a decision-maker under s 501CA(4) of the Act and the limited circumstances in which a duty for that decision-maker to inquire further might arise. The Minister argued that the hallmarks of a case in which a duty to inquire might arise are absent in this case.

87    Regardless, the Minister submitted that, even if he did commit the alleged error, it was not material to the outcome of his decision. The Minister notes in this regard that he considered the applicant’s health concerns and the applicant’s statements in the personal details form that he has asthma and suffers from cardiomyopathy.

Consideration

88    The applicant submitted that, given there is nothing in the Minister’s Reasons, nor any other evidence, to suggest that the Minister (or the Department on his behalf) made any further enquiries regarding the applicant’s health information, the Court may infer that no such enquiries were made or that any resulting information was not considered. However, it is unnecessary to decide whether this inference is justified. That is because, even assuming no further enquiries were made by, or on behalf of, the Minister, my view is that, for the following reasons, there was no failure to afford the applicant procedural fairness.

89    Two decisions of this Court have considered circumstances similar to the personal details form in the present case. The first is Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424 (Tanielu), which involved the judicial review by Mortimer J of a decision of the Minister under s 501(2) of the Act. One aspect of the personal details form in Tanielu inquired whether the applicant authorised the Department to contact the custodial parent of the applicant’s child. The applicant ticked the box “Yes” and also answered a question about the level of contact he had with the child: ibid at [12].

90    The applicant in Tanielu argued that he was denied procedural fairness because the Department failed to make contact with the custodial parent. The applicant said he had been led to believe that such contact would be made and that, as a result, he did not himself request that the custodial parent put in material in support of the non-cancellation of his visa.

91    Mortimer J considered the Department’s conduct towards the applicant, starting with the personal details form. Her Honour stated the following at [74]:

The applicant’s evidence is that, even without legal representation he knew [the custodial parent’s] attitude would be central …. The applicant had indicated on the form he initially filled out that he consented to the Department contacting [the custodial parent]. The applicant submits and I accept that it is reasonable for a person in the applicant’s position reading that form and giving consent to believe that the purpose of these matters being on the form is to facilitate the Department itself contacting such people directly. If the evidence stopped there, it would not be enough because all this form established was the facility for contact, should the Department decide to.

(Emphasis added.)

92    As is evident from the emphasised passage, Mortimer J viewed that the mere authorisation on the form to contact another person was, by itself, insufficient to amount to a representation by the Department that the person would be contacted. All the form did was facilitate the authorisation of contact.

93    There were ultimately additional facts in Tanielu to support the conclusion that the applicant in that case had not been afforded procedural fairness. After submitting the relevant form, the applicant had held a telephone conversation with a departmental officer in which the officer requested that the applicant provide the custodial parent’s contact details: ibid at [75]. In these circumstances, Mortimer J held that the applicant had been misled into believing the Department would contact the custodial parent, thereby leading to a denial of procedural fairness: ibid at [79]-[84]. The facts of Tanielu are accordingly different from the present case where there is no evidence of subsequent conduct or representations by the Department to support an equivalent belief on the part of the applicant.

94    The second case is Afu v Minister for Home Affairs [2018] FCA 1311 (Afu), which involved the judicial review by Bromwich J of a decision of the Administrative Appeals Tribunal under s 501CA(4) of the Act. The applicant in Afu relevantly argued that the Tribunal had not given proper, genuine and realistic consideration to certain representations: ibid at [72]. The applicant had represented that his former partner was the primary carer for his children, and the applicant had authorised the Department to contact her regarding his case: ibid at [75]. The applicant complained that the Tribunal, rather than contacting his former partner, merely recorded in its reasons that it was unknown whether the applicant’s former partner wanted any contact at all with the applicant.

95    Although it is unclear from the reasons in Afu whether that case involved a form similar to the present case, it is clear that Bromwich J, like Mortimer J in Tanielu, held that the authorisation provided by the non-citizen to the decision-maker to contact a person did not amount to a representation that the person would be contacted. His Honour expressed the following at [77]:

This sub-ground of review does not reach the point of identifying any jurisdictional error, much less making out such an allegation. The fact of authorising contact to be made did no more than enable the Tribunal to do so if it found that such a course was necessary or appropriate. Nothing more can be derived from such an authorisation in circumstances of this case. The Tribunal was not under any obligation to record in its Reasons the fact that such an authorisation had been given, let alone take any step in acting upon such an authorisation. This sub-ground of review must therefore fail.

96    The outcomes of these two cases are consistent with broader principles regarding the role of a decision-maker under s 501CA(4) of the Act. The legal duty of such a decision-maker is to address the representations made and to take those representations into account in considering whether or not to revoke the cancellation decision. There is no duty for the decision-maker to undertake his or her own research.

97    The limited responsibilities of a decision-maker under s 501CA(4) were explained as follows by Rares and Robertson JJ in Maioha at [48]:

It should again be emphasised that the issue for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked. It was for the respondent to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made. In the present case, in our opinion, the Minister was not required to give more extensive consideration to the representations put, such as investigating and making further findings, in particular findings as to how the respondent “would be able to manage those practical changes” as the primary judge appears to have held at [34]. …

98    Similarly, the Full Court expressed the following in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [100]:

… the reasons of the decision-maker must be construed consistently with a recognition of the minimal inquisitorial duties imposed on the decision-maker. The Minister is of course required to invite a person to make representations about the cancellation of his or her visa. But beyond that, a decision-maker, in the words of Rares and Robertson JJ in Maioha, has “no legal duty, referable to jurisdictional error, to ask for further representations … or to make inquiries into the representations”. As explained by Flick J in Maioha, the significance and characterisation of a representation is primarily within the control of the representor.

See also Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] per Davies, Derrington and Colvin JJ.

99    Accepting these principles, my view is that the mere fact that the applicant in the present case expressed a request in the personal details form for the Minister, or the Department on his behalf, to contact the medical centre at the prison does not impose a legal obligation on him which, if breached, amounts to jurisdictional error. The personal details form was a means by which the Department could obtain general medical information from the non-citizen. The form enabled the non-citizen to specify the identity and contact details for his or her medical professional, and provide authorisation for the Department to contact that person. However, consistent with the analyses in Tanielu and Afu, the language of the “health information” section of the personal details form does not, by itself, constitute a representation by the Department that it would contact the people identified by the non-citizen. The applicant’s unilateral request in this case for the Department to contact the medical centre does not alter that conclusion.

100    The primary responsibility for the content and nature of the representations to support a revocation request lies with the non-citizen. As such, where the non-citizen wishes for the decision-maker to consider medical information in the possession of the non-citizen’s treating medical professional or counsellor, the onus is, as a general statement, on the non-citizen to either source that information him or herself, or otherwise request that the professional or counsellor provide a report to that effect. That did not occur in the present case.

101    For these reasons, ground eight must be dismissed.

Ground nine – Applicant’s hardship in Tonga from health conditions

102    Ground nine advanced by the applicant contended that

[t]he Minister failed to give proper consideration to the applicant’s submission that he would suffer hardship from his health conditions if returned to Tonga.

103    This ground of review relates to the Minister’s assessment of the extent of impediments to the applicant if he was removed from Australia, which was set out at [50]-[57] of the Minister’s Reasons. Like the previous ground, this ground centres on the applicant’s health. The paragraphs of the Minister’s Reasons considering the applicant’s health were as follows:

Extent of impediments if removed

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

51.     I have regard to Mr TAUALII’s health concerns, stating he has asthma as well as suffering from cardiomyopathy, for which he takes several medications. He states he has suffered from mild heart attacks previously.

52.     I accept that health and other social services in Tonga may not be of the same standard as those available to him in Australia. Although Tongan health services are not ranked as highly by the World Health Organisation as those of Australia, I find that Mr TAUALII will have similar levels of access to health and other social services as generally available to other citizens of Tonga in the same position as Mr TAUALII.

104    The Minister continued to consider other potential impediments before concluding as follows in relation to the extent of impediments to the applicant if he returned to Tonga:

57.     Having considered Mr TAUALII’s circumstances, his lengthy residence in Australia, the absence of family support in Tonga, his lack of familiarity and cultural knowledge, and health issues, I find that a decision not to revoke the mandatory cancellation of his visa and his subsequent return to Tonga will involve significant hardship for him. I accept Mr TAUALII will face emotional hardship and experience isolation in being separated from his family and establishing a life in Tonga.

105    As expressed in the terms of ground of review nine, the applicant contended that the Minister failed to give proper consideration to the applicant’s hardship from his health conditions if returned to Tonga.

Submissions

Applicant’s submissions

106    The applicant argued that he made submissions to the Minister that he would suffer hardship by reason of his health conditions if the cancellation decision was not revoked. The Minister was obliged to give active intellectual consideration to that claim and weigh it in his balancing exercise. This required a fact-based assessment of the applicant’s personal circumstances. In the submission of the applicant, the Minister failed to give such consideration to the claim raised.

107    The applicant in particular criticises [52] of the Minister’s Reasons. Although the Minister accepted that the “health and other social services in Tonga may not be of the same standard as those available to him in Australia”, the applicant submitted that the Minister failed to then make a finding as to whether that lesser standard of health and social services would pose hardship to the applicant in his personal circumstances and, if so, whether that hardship was a reason why the cancellation of the applicant’s visa should be revoked. In respect of the final sentence of [52] of the Minister’s Reasons, the applicant submitted that the question for the Minister was not whether the applicant would be in a worse position than the general population of Tonga in terms of access to health services, but instead whether the applicant would suffer hardship in his personal circumstances and, if so, whether that amounted to a reason why the cancellation of the applicant’s visa should be revoked.

Minister’s submissions

108    The Minister submitted that the applicant’s allegation that the Minister failed to give requisite consideration to the applicant’s claims regarding his health concerns is without merit. The Minister notes that he recorded an express finding at [57] of his reasons that, having considered the applicant’s circumstances, which included the applicant’s health issues, a decision not to revoke the cancellation of the applicant’s visa would involve significant hardship for the applicant. The Minister contended that the applicant’s complaints with the Minister’s reasoning at [52] is at odds with recent authority.

Consideration

109    In accordance with the principles outlined above at [58], the Minister was required to give active intellectual consideration to the clearly articulated representations made by the applicant regarding the revocation of the cancellation decision.

110    This ground of review was expressed in the further amended originating motion to impugn generally the Minister’s failure to give “proper consideration” to the hardship the applicant would experience in Tonga as a result of his health conditions. It was evident from the applicant’s submissions, however, that he accepted that the Minister gave some consideration to the applicant’s health conditions.

111    The applicant instead impugned the finding at the end of [52] of the Minister’s Reasons that the applicant “will have similar levels of access to health and other social services as generally available to other citizens of Tonga in the same position as [the applicant]”. The essence of the applicant’s argument was that, in making this finding, the Minister performed an impermissible comparison for the purposes of exercising his statutory function. Instead of assessing the extent of personal hardship to the applicant, the Minister focussed on the applicant’s hardship relative to other Tongan citizens.

Did the Minister commit an error?

112    It is convenient to start with the Minister’s submission that the decision of Banks-Smith J in Pennie v Minister for Home Affairs [2019] FCA 489 (Pennie (TJ)), as affirmed by the Full Court (Davies, Derrington and Colvin JJ) in Pennie v Minister for Home Affairs [2019] FCAFC 129 (Pennie (FC)) (both decisions collectively referred to as Pennie), supported the conclusion that the Minister’s approach at [52] did not amount to a jurisdictional error.

113    Pennie, like this case, was an application for judicial review of a decision of the Minister not to revoke a mandatory visa cancellation. Mr Pennie, a citizen of Ireland, represented to the Minister that he suffered “from a number of psychological and physical conditions including anxiety and depression which have led to several attempts at suicide, his drug abuse, shoulder injury with related chronic pain, heart failure and Crohn's disease, and therefore needs the support of his family and medical professionals”: Pennie (FC) at [10], quoting [37] of the Minister’s reasons. Mr Pennie asserted that “the lack of social and economic support available to him [in Ireland] will have negative effects on his mental and physical heath and his ability to establish himself there, in addition to difficulties he would likely face in organising the specialist medical support he needs: Pennie (FC) at [10], quoting [39] of the Minister’s reasons.

114    The Minister’s conclusion in respect of these representations by Mr Pennie was as follows:

40.    I note Ireland has comparable standards of healthcare, social welfare and housing support to Australia. …

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

(Emphasis added.)

115    To interpolate, it can be seen from the passage emphasised above that the Minister made a finding in Pennie similar to that made in the present case. In both cases, the Minister compared the level of services available to the non-citizen seeking revocation with the level of services available to other citizens of the relevant receiving country.

116    Upon judicial review of the Minister’s decision, Mr Pennie argued, amongst other things, that the Minister had “failed to give proper, genuine and realistic consideration to the applicant’s representation that he would experience homelessness and lack of medical care if he were removed to Ireland”. He relevantly contended that the Minister “did no more than make a general finding as to services that might be available to the applicant upon his return to Ireland”: Pennie (TJ) at [60].

117    Banks-Smith J held that the Minister did not commit an error in reaching his state of satisfaction: ibid at [67]. Her Honour explained as follows:

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

67     In my view the Minister directed his attention to whether hardship, including the prospect of homelessness and the applicant's health and medical issues, comprised ‘another reason why the original decision should be revoked’ and he concluded on the materials before him that he was not satisfied that there was such another reason. …

118    The Full Court affirmed the decision of Banks-Smith J. In relation to the applicant’s complaints about the Minister’s consideration of the level of access to healthcare in Ireland, the Full Court concluded as follows:

12    No error is discernible in the primary judge’s reasons. As her Honour correctly noted, the Minister is required to consider representations made by a person in response to an invitation under s 501CA(3) of the Act and a failure to consider or take into account matters of sufficient importance and the representations may amount to jurisdictional error: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (“Maioha”) at [45] (Rares and Robertson JJ); Navoto v Minister for Home Affairs [2019] FCA 295 at [47] (Allsop CJ). But, as the primary judge correctly found, in making his decision the Minister did address the representations made by Mr Pennie that he would experience homelessness, financial devastation, lack of medical care, unemployment, loneliness and exacerbation of his psychological conditions if removed to Ireland and considered the consequences to Mr Pennie of returning to Ireland. The Minister accepted that he may experience significant difficulties and practical hardships upon return to Ireland but was of the view that Mr Pennie would have a level of access to healthcare, social welfare and housing comparable to that which is available in Australia and that, as an Irish citizen, Mr Pennie will have a level of access to healthcare, social welfare and housing support that is similar to other citizens of Ireland.

…

14    … The primary judge correctly stated that it was for Mr Pennie to put before the Minister what he wanted the Minister to take into account and it was not for the Minister to undertake his own research or investigate for himself the likelihood or otherwise of Mr Pennie finding housing in Ireland, or obtaining social welfare or adequate health care. The Minister had no legal duty to make such inquiries for himself nor to make findings of fact as to whether Mr Pennie would be entitled to social and housing welfare if removed to Ireland: Maioha at [41]-[46] (Rares and Robertson JJ). His legal duty was to address the representations made and to take them into account in considering whether to revoke the cancellation decision. A fair reading of the Minister’s reasons discloses that he both considered and weighed up the matters put to him by Mr Pennie.

119    The Minister argued in the present case that the applicant’s criticism of [52] of the Minister’s Reasons is at odds with the analysis and outcome in Pennie. In the Minister’s submission, Pennie demonstrates that there is only a limited extent to which the Minister is required to inquire into the level of hardship faced by the applicant in Tonga.

120    There are evident parallels between the facts of Pennie and the present case. In both cases, the focus of the applicant’s criticism of the Minister’s reasoning was the Minister’s consideration of the relevant representations made by the applicant. For instance, in Pennie (TJ), Banks-Smith J characterised the relevant question at [56] as to whether the representations “were given proper evaluative consideration”. In this case, the applicant argues that the Minister failed to give “proper consideration” or “active intellectual consideration”. Moreover, in both cases the Minister considered the level of services available to the non-citizen compared to other citizens of the relevant receiving country (Ireland in Pennie and Tonga in this case). In these circumstances, both Banks-Smith J and the Full Court did not discern any error by the Minister in the form alleged by Mr Pennie.

121    There is one key aspect of factual distinction between Pennie and the present case. In Pennie, the Minister found that Ireland had comparable standards of services to Australia, whereas in the present case the Minister indicated that Tonga has lesser standards of services than Australia. The applicant argued that this distinction was sufficient to distinguish the outcome in Pennie. As the Minister in the present case held that the standards of services were lesser in Tonga, the applicant contended that the Minister failed to complete the necessary assessment of the extent of the particular hardship to the applicant.

122    Notwithstanding this factual difference, my view is that the overarching principle in Pennie is applicable to the present case. The relevant principle to be derived from Pennie, in light of the particular facts of that case, is the extent to which a decision-maker under s 501CA(4) of the Act is required to address representations and take them into account in considering whether to revoke the cancellation decision.

123    To explain, it is important to appreciate the form of error alleged in Pennie and the present case. The applicants in each case did not frame their criticism on the basis that the Minister had engaged in irrational reasoning or fact finding. They instead argued that the Minister had not given the requisite consideration to certain representations.

124    As explained by Kiefel J (as her Honour then was) in Tickner v Chapman [1995] FCA 1726; 57 FCR 451 at 495, to “consider” a matter

requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate.

See also Omar at [35]-[36], citing Carrascalao. As noted in the final sentence of these remarks of Kiefel J, the attribution of weight to particular representations is a matter for the Minister, not the Court. For this reason, courts have warned that use of an expression such as “proper, genuine and realistic” consideration can, if taken out of context, encourage a “slide” into impermissible merits review by the court upon judicial review: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Carrascalao at [32]; Omar at [36(a)]. Courts must respect the limits of their judicial review function.

125    Recognising these principles, my view is that the circumstances of Pennie and this case are relevantly similar such as to conclude that the Minister gave “proper consideration”, in the relevant legal sense, to the extent of hardship that the applicant would experience from his health conditions in Tonga. This is evident from the Minister’s Reasons. The Minister gave express regard to the applicant’s health concerns at [51], including that he had asthma and suffered from cardiomyopathy. The Minister recognised at [52] that the health services in Tonga may not be of the same standard as in Australia. In these circumstances, the Minister concluded at [57] that the applicant’s health issues, in addition to other matters, would involve significant hardship for him. This factor supported revocation of the cancellation decision.

126    Although the Minister’s assessment was concise, it evidenced sufficient consideration of the applicant’s health issues. This is particularly so given the manner in which the applicant’s health was raised by in his representations, as discussed further below. The final sentence of [52] of the Minister’s Reasons, as impugned by the applicant, was only one aspect of the Minister’s consideration. The existence of the finding in that sentence does not erase or undermine the consideration otherwise given by the Minister to the applicant’s health.

Assuming the error was established, was it material?

127    Even if the applicant had established error by the Minister as alleged, my view is that this error was not material to the outcome of the Minister’s decision. This is because the error would not have deprived the applicant of a realistic possibility of the cancellation decision being revoked by the Minister: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252; 363 ALR 599; 75 AAR 75; 163 ALD 38 at [45] per Bell, Gageler and Keane JJ.

128    The first reason for this conclusion is the generic and relatively insignificant nature of the representations made by the applicant about his health. The applicant’s health conditions were referred to in a number of documents provided to the Minister. The “Health Information” section of the applicant’s personal details form was extracted above at [80]. The applicant’s responses in that form identified the applicant’s asthma and cardiomyopathy and the medication that he was taking for those conditions.

129    The applicant’s Second Handwritten Letter also made brief reference to his health. In response to an allegation in the Victoria Police Report that a man fitting the applicant’s description was observed riding a motorcycle recklessly on 26 March 2013, the applicant stated the following:

I am sure around this time I had had two minor heart attacks and had spent some time in the Western General Hospital in Footscray Cardio Ward and records will show that I was in no condition to ride. …

130    Notwithstanding the brief references to the applicant’s health in the material before the Minister, the applicant, contrary to the premise of this ground of review, did not expressly represent that “he would suffer hardship from his health conditions if returned to Tonga”. Other than referring to his conditions under the “Health Information” section, the applicant’s personal details form did not otherwise emphasise his health conditions as central to his revocation request. The applicant instead expressed in that form that “[t]he most concerning thing for me would be being separated from my 11 children”. Likewise, part two of the applicant’s Second Handwritten Letter, entitled “Submission Re Exceptional Circumstances”, made no reference to his health. That letter instead described the “most important part” of his application as being his 11 children.

131    Counsel for the applicant did not identify any aspect of the applicant’s representations that were said to amount to an express representation that the applicant would suffer hardship in Tonga as a result of his health conditions. In truth, these health conditions only played an incidental role in the applicant’s revocation request. It is clear that the separation from his children and family was of dominant concern to the applicant.

132    The further reason for concluding that the error made by the Minister was immaterial to his decision is the fact that the Minister recognised at [57] that the impediments that the applicant would face in Tonga, including his health issues, “will involve significant hardship for him”, which weighed in favour of revocation: Minister’s Reasons at [103]. In circumstances where:

(a)    the applicant did not expressly represent that he would suffer hardship from his health conditions if returned to Tonga (and that the applicant’s health conditions only played an incidental role in his revocation request);

(b)    the Minister acknowledged at [52] that Tongan health services may not be of the same standard as those available to the applicant in Australia; and

(c)    as a result, the Minister concluded at [57] that the applicant’s health issues (amongst other things) would impose “significant hardship” on him,

my view is that the error alleged, assuming it was established, would not have deprived the applicant of a realistic possibility of a successful outcome. Therefore, the error would not have impugned the valid exercise of the Minister’s statutory jurisdiction.

133    For these reasons, ground nine must be dismissed.

Conclusion

134    For the reasons expressed above, each of the four grounds of review raised by the applicant are without merit. The applicant’s application for judicial review is accordingly dismissed. The applicant will pay the first respondent’s costs of and incidental to the application.

Associate:    

Dated:        4 December 2019