FEDERAL COURT OF AUSTRALIA

Guclukol v Minister for Home Affairs [2020] FCA 61

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant is of Turkish nationality. He came to Australia in 1971 as a seven-year-old child and has lived here permanently ever since. He and his former de facto partner, who is an Australian citizen, have three children, aged (at the date of these reasons) 21, 19 and 13. Prior to June 2016, he held a class BF transitional (permanent) visa, which was granted to him under the Migration Act 1958 (Cth) (hereafter, the “Act”).

2    By a decision made on 21 June 2016 under s 501(3A) of the Act, the respondent (hereafter, the “Minister”) cancelled the applicant’s visa (hereafter, the “Cancellation Decision”). The catalyst for that Cancellation Decision was the applicant’s criminal history. On 15 October 2015, he was sentenced to nine months’ imprisonment for various violence-related offences that he had committed against his previous de facto partner and their children in March 2015. That offending followed convictions in September 1987 (for intentionally causing serious injury), February 1989 (for dangerous driving, failing to stop and exchange details after a road accident, and intentionally causing injury), April 1989 (for breach of suspended sentence relating to the September 1987 offending), June 1989 (for aggravated rape and intentionally causing serious injury), September 1989 (for false imprisonment and intentionally causing injury) and December 1994 (for drug possession). Periods of incarceration were imposed in respect of the applicant’s September 1987, and June and September 1989 offending. In total, the applicant’s criminal past has seen him serve more than 11 years in prison.

3    In response to an invitation extended to him under s 501CA(3) of the Act, the applicant petitioned the Minister to revoke the Cancellation Decision. He accepted that he did not pass the “character test” for which s 501(6) of the Act provides; but he maintained, nonetheless, that there were other reasons (explored in more detail below) why the Cancellation Decision should be revoked pursuant to s 501CA(4) of the Act.

4    By a decision made on 1 August 2018, the Minister declined to revoke the Cancellation Decision (hereafter, the “Non-Revocation Decision”). Written reasons were supplied in support of that decision, the relevant particulars of which are explored further below.

5    By an application dated 8 August 2018 (and amended with effect from 3 December 2018), the applicant seeks under s 476A of the Act judicial review of—that is to say, prerogative relief directed at—the Non-Revocation Decision. He alleges that the Non-Revocation Decision is the product of jurisdictional error. In so doing, he advances three grounds (other grounds were identified in his amended application but are not pressed), specifically that:

(1)    the Non-Revocation Decision proceeded upon “consequential and substantial findings of fact” for which the Minister had no evidence, or that were otherwise tainted by irrationality or legal unreasonableness (hereafter, “Ground One”);

(2)    the Minister failed to understand—and, thereby, failed to address—a submission that the applicant advanced before him as to a reason why the Cancellation Decision ought to have been revoked (hereafter, “Ground Two”); and

(3)    the Minister failed “…to take into account consequential and substantial evidence” (hereafter, “Ground Three”).

6    The particulars of each ground are explored below. For the reasons that follow, I do not accept that the Non-Revocation Decision was tainted by jurisdictional error in any of the forms that the applicant alleges. The application will, for that reason, be dismissed with costs.

The legislative Scheme

7    Section 501 of the Act stipulates circumstances in which the Minister may—and, in some cases, must—cancel a visa on character grounds. Relevantly, it provides as follows:

501     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)    paragraph (6)(e) (sexually based offences involving a child); 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.

…

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

(a)    the person has a substantial criminal record (as defined by subsection (7))…

…

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

…

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

8    Under s 501CA of the Act, a non-citizen whose visa has been cancelled under s 501(3A) of the Act may apply for a revocation of that decision. The provision relevantly provides as follows:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(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:

(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.

9    As should be clear from the factual summary that appears above, there was no contest that the applicant made representations of the sort contemplated by s 501CA(4)(a) of the Act (hereafter, the “Revocation Submissions”). Likewise, the applicant accepted (and still accepts) that he did (and does) not pass the “character test” to which s 501CA(4)(b)(i) of the Act refers. At issue before the Minister was whether there was “another reason” under s 501CA(4)(b)(ii) of the Act why the Cancellation Decision ought to have been revoked.

Ground One: the “no evidence” ground

10    By his Revocation Submissions, the applicant contended that the Minister ought to revoke the Cancellation Decision because, absent revocation, he would be removed from Australia back to his native Turkey, where “…he would struggle to subsist”. That, he explained, was a function of the fact that he:

(1)    has lived in a non-Turkish speaking country for almost all of his life;

(2)    cannot, to any functional degree, speak or write Turkish;

(3)    has limited education;

(4)    has little or no family support in Turkey;

(5)    has no personal contacts in Turkey;

(6)    labours under some “debilitating medical conditions”; and

(7)    has a significantly limited capacity for work.

11    The applicant’s Revocation Submissions recorded that:

…in a country like Turkey, where I wouldn’t have the finances or a disability pension to fall back on, I consider my chances of successfully fending for myself to be negligible. Additionally, my English language written skills are minimal and computer skills non-existent.

12    It was also submitted that:

…Turkey does not have the same social security system as Australia. If the [a]pplicant returned to Turkey, he would struggle to subsist as a result of the limited number of occupations he can now perform as a result of [an ongoing back injury]. He could not rely on the State or his family to support him when he returned.

13    In his reasons for making the Non-Revocation Decision, the Minister addressed the applicant’s contentions under the heading “Extent of impediments if removed” as follows:

59.     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 GUCLUKOL will face if removed from Australia to his home country of Turkey in establishing himself and maintaining basic living standards.

60.     I note Mr GUCLUKOL is 53 years old and has resided in Australia for some 46 years. I note that he suffers from pain and nerve damage resulting from an injury to his back, and his condition is becoming worse over time. I note from [the applicant’s then legal representative]’s submissions of 16 September 2016, that Mr GUCLUKOL’s injury occurred in 2008, and has been ‘debilitating’, resulting in his being unable to work. Mr GUCLUKOL’s Personal Circumstances Form indicates he also suffers from dental pain, and is prescribed painkillers and medication to treat an ulcer.

61.     I have had regard to a letter from [the applicant’s family doctor] dated 4 June 2018, and note her statement that Mr GUCLUKOL ‘has a major medical disability with his back – suffering with chronic back pain due to a lumbar disc prolapse.’ [The applicant’s family doctor] states Mr GUCLUKOL’s condition improved somewhat following surgery, though has continued to affect his ability to obtain work.

62.    In the submissions of 16 September 2016, [the applicant’s then legal representative] states that Mr GUCLUKOL is unable to perform labouring work due to his medical issues, and is unqualified for other types of work. She goes on to state ‘Turkey does not have the same social security system as Australia. If the [a]pplicant returned to Turkey, he would struggle to subsist as a result of the limited number of occupations he can now perform as a result of his injury. He could not rely on the State or his family to support him when he returned.’

63.     I have considered Mr GUCLUKOL’s statement ‘I have always considered myself an Australian as I have lived here for my entire adult life. My friends and family are Australians and I am used to the Australian way of life.’ He also states that he has ‘no life’ in Turkey and has never lived there. He states he would be unable to support himself there as in addition to his health issues, he has limited ability with the Turkish language, literacy issues in both English and Turkish, and nowhere to live in Turkey. I also note Mr GUCLUKOL’s statement ‘My only connection in Turkey is my mother who I have not seen for over a decade. My father passed away in October 2016.’

64.     I have also had regard to [the applicant’s former partner]’s letter, where she states that Mr GUCLUKOL’s ‘relationship with his parents is such that it is unlikely that he would have a home to live in and he could end up financially destitute.’ [She] also states ‘Over the last 20 years he had been very dependent on my support. I don’t think he will survive in Turkey on his own, particularly being removed from his children who he deeply cares for.’

65.     I have taken into consideration [the applicant’s former partner]’s submissions that Mr GUCLUKOL’s removal from Australia is likely to have a negative impact on his health. She also confirms his literacy difficulties, noting she continues to provide him with assistance completing forms and responding to issues.

66.     I acknowledge that Mr GUCLUKOL’s health issues and literacy difficulties are likely to be impediments to him obtaining employment and establishing a basic standard of living in Turkey. I also accept that his lack of familiarity with Turkish culture and language will be impediments to Mr GUCLUKOL integrating himself into the Turkish community.

67.     In light of Mr GUCLUKOL’s health and literacy issues, I consider he will be reliant to some extent on health and other support services. I find that Mr GUCLUKOL will have similar levels of access to any available health or other support services as that generally available to other Turkish citizens in the same position as Mr GUCLUKOL, although I recognise that any available services may be of a lower standard than those available to him in Australia.

14    Later, after considering a host of other considerations, the Minister concluded:

136.     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 GUCLUKOL 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 Turkey, his contributions to the community through education, employment, and charitable acts, as well as the hardship Mr GUCLUKOL, his family and social networks will endure in the event the original decision is not revoked.

137. 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 GUCLUKOL’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 GUCLUKOL’s Class BF Transitional (Permanent) visa remains cancelled.

15    Ground One focuses upon what the Minister recorded at [67] of his reasons and its influence on the conclusion expressed at [137]. The applicant’s complaint has two dimensions. The first concerns the Minister’s conclusion that the applicant would be able to avail himself of public “health and other support” services in Turkey. It is said that there was no evidence to support that supposition and that, to the extent that the conclusion at [137] was a product of it, that conclusion was arrived at irrationally or in a manner that bespoke legal unreasonableness. The second was that the Minister’s failure to make a finding, one way or the other, as to whether or not the applicant would “struggle to subsist” (to use the terminology that found expression in his Revocation Submissions) bespoke a failure on the Minister’s part to consider and address the contention that the applicant advanced. That manifestation of the ground emerged during oral submissions and does not obviously find expression in the applicant’s amended originating application. Nonetheless, it was addressed in argument without objection and was the subject of post-hearing written submissions.

16    As to the first of the two ways in which Ground One was put, the applicant’s written submissions contended as follows (references omitted):

17.    The finding at paragraph [67] can be read as tempering or moderating the finding in paragraph [66] that there were impediments to Mr Guclukol establishing a “basic standard of living” in Turkey. That is a finding that Mr Guclukol, if returned to Turkey, would be unable to subsist. By the reasoning in paragraph [67] [the Minister] tempers the serious consequences of that finding by reference to the health and other support services said to be available in Turkey. On the basis of the evidence before him, it was not open for the [Minister] to do so.

18.     First, there was no evidence before the [Minister] of the available health or other support services “generally available to other Turkish citizens”. The only material before the [Minister] was a statement by Mr Guclukol’s representatives that Turkey did not have the same social security system as in Australia. Recognition that such “health or other support services” as are available “may be of a lower standard than those available to Mr Guclukol in Australia” cannot stand in the place of evidence as to what those services are.

19.    Absent evidence of those matters, there was no basis for the [Minister] to use the existence of such services to temper the finding in paragraph [66] that Mr Guclukol would face impediments in obtaining employment and establishing a basic standard of living.

17    The applicant’s submissions are, with respect, problematic on a number of levels. First, it is not the case that the Minister’s observations in [67] of the Non-Revocation Decision amount to a “tempering or moderating [of] the finding in paragraph [66] that there were impediments to Mr Guclukol establishing a ‘basic standard of living’ in Turkey”. The relevant passage does not reflect an assumption on the Minister’s part that the applicant would be able to avail himself of “health and other support services” in Turkey. It assumes nothing more than, first, that he would do so to whatever extent they might be available; and, second, that whatever services might be available might not be as generous as those that are available in Australia. Intending no disrespect, those observations aren’t especially helpful (insofar as they don’t add much to the central issue of whether or not the Minister was or ought to have been satisfied that there was another reason to revoke the Cancellation Decision); but to read them as though they reflect some assumption as to the existence, availability or scope of particular services is to import into them a meaning that the language in which they are expressed doesn’t support.

18    But, even assuming, contrary to what appears immediately above, that [67] of the Non-Revocation Decision should be understood as an acknowledgment by the Minister that the applicant would be able to avail himself of social security services in Turkey, it is not the case that there was no evidential basis upon which that acknowledgement fairly rested. In Uelese v Minister for Immigration and Border Protection and Another (2016) 248 FCR 296 (Robertson J), this court considered a submission similar to what the applicant in this case advances. That case concerned a statement made by the Minister in the context of a similar non-revocation decision that, “…in New Zealand Mr Uelese would have access to government benefits similar to those available to him in Australia”. Robertson J observed (at 310 [69]):

…that statement is no more than a broad proposition as to the availability of government benefits in New Zealand and not one that required evidence as to the amount of a benefit, the terms and conditions of that benefit or the eligibility criteria for that benefit.

19    The observations made by the Minister in this case at [67] of the Non-Revocation Decision are similar: namely, a broad proposition as to the availability of “health and other support services” in Turkey. Such services broadly equate with the concept of a state-administered social security program: Schmidt v Minister for Immigration and Border Protection (2018) 162 ALD 495, 502 [26] (Burley J). In order that he might validly make (and rely upon) the observation that he made, it was not necessary for the Minister to have before him evidence going to the nature or scope of such “health or other support services”, or the criteria upon the satisfaction of which they might be available. All that was necessary was that he have a basis for concluding that they existed (assuming that he did so conclude).

20    That basis was present. The applicant’s own Revocation Submissions made reference to Turkey’s “social security system” (above, [12]). From that reference, the Minister was entitled to infer that Turkey at least had a “social security system”. In order to succeed on his first ground (or this manifestation of it), the applicant needs to establish that the Minister’s observation about his access in Turkey to “health and other support services” had no evidential basis at all. In BSE17 v Minister for Home Affairs [2018] FCA 1926 (Moshinsky J), the court described the test as follows (at [33]):

The “no evidence” ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]. Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39]-[41] per Gummow and Hayne JJ; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J.

21    It follows that I do not accept that the Minister lacked a proper basis for his observation that the applicant would have access in Turkey to health and other support services (assuming, contrary to my earlier conclusion, that that is how the relevant passage should be read).

22    It also follows that the conclusions that the Minister expressed at [136]-[137] of the Non-Revocation Decision (above, [14]) were not reliant upon findings that were made without an evidential basis. They were not tainted by extreme irrationality or legal unreasonableness; and the Non-Revocation Decision was not, in that sense, the product of jurisdictional error. To borrow from Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 649 [135]:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker.

23    I turn, then, to the second way in which the applicant prosecuted Ground One: namely, that the Minister failed to record in his Non-Revocation Decision a finding as to whether or not the applicant would, on account of his ill health and poor work prospects, “struggle to subsist” in Turkey. That failure, it was said, bespoke a failure on his part to consider and address a contention that the applicant advanced (and, thereby, amounted to jurisdictional error).

24    There is no doubt that the Minister was obliged to consider the submission that the applicant put (namely, that he would “struggle to subsist” if returned to Turkey): Minister for Home Affairs v Omar [2019] FCAFC 188 (“Omar”), [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); Navoto v Minister for Home Affairs [2019] FCAFC 135, [86]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Buadromo (2018) 362 ALR 48 (“Buadromo”), 58 [42] (Besanko, Barker and Bromwich JJ). At issue is what such “consideration” actually required in this case: did it require more than engagement by the Minister in an active intellectual process directed at the subject representation (see, for example: CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155, [76]-[79] (Allsop CJ, Kenny and Snaden JJ); Buadromo, 58 [42]-[43] (Besanko, Barker and Bromwich JJ)); did it require that he form and state a view or conclusion or “finding” addressing the point that was advanced?

25    In Omar, the full court observed at [39]:

Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [32]-[36] per Perram J).

(emphasis added)

26    Later, their Honours explained that the representations in issue in that case—namely, that the appellant was at risk of substantial harm if returned to his native Somalia—“…were of such central significance that the Assistant Minister had to engage with them properly and make findings of fact one way or the other” (emphasis added): Omar, [43(a)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).

27    In Buadromo—which, like Omar, was another case concerning the application of s 501CA(4) of the Act—the full court identified (at 59 [46]) some circumstances in which findings regarding contentions advanced by an applicant might not be required:

A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows. These are only examples and it is not possible to be comprehensive.

(emphasis added)

28    The difficulty that often, if not always, arises in cases such as the present (and that arose in Omar and Buadromo) is that determination of the consequences or circumstances that an applicant will face if removed from Australia—that is, the consequences or circumstances by reason of which it is said that there is “another reason” under s 501CA(4) of the Act why the decision to cancel his or her visa should be revoked—typically requires speculation. Often, it requires speculation upon imperfect or incomplete evidence, or to a degree that doesn’t easily permit of definitive findings. The present case is a good example. It is, of course, the case that the applicant’s fate if returned to Turkey is not (and cannot be) precisely known. He might, as he submitted to the Minister, “struggle to subsist”. He might not.

29    Clearly, it was open to the Minister to deal with the applicant’s contention by deciding, one way or the other, whether the factual assertion was made out on the evidence. But just as permissibly, the Minister might have processed the contention in the way that the full court in Buadromo contemplated: that is, by reasoning that, even assuming that the applicant would struggle to subsist, that (whether by itself or in light of other considerations) was still not “another reason” why the Cancellation Decision should be revoked. Doing so would discharge his obligation to “take responsibility for what he is doing”: Omar, [38] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). It would do so without the necessity of his making or recording any finding as to whether the applicant would or would not struggle as alleged. Given the necessarily speculative and imprecise nature of the applicant’s contention, and the fact that the Minister made express reference to it in the Non-Revocation Decision, it cannot safely be inferred, from the absence of a finding on that front, that the Minister failed to consider what the applicant claimed. On the balance of probabilities, I am not persuaded that any such failure occurred.

30    In any event—and assuming that, as the applicant asserted, the Minister was obliged to state a finding as to whether or not the applicant would “struggle to subsist” if removed from Australia (in the absence of which I might, or must, infer that he failed to consider that contention)—that obligation was discharged. In his Non-Revocation Decision, the Minister “acknowledge[d]” that the applicant’s “…health issues and literacy difficulties are likely to be impediments to him obtaining employment and establishing a basic standard of living in Turkey”. Although not phrased in the same language as the applicant’s submission (“struggle to subsist”), that acknowledgment was, nonetheless and in substance, consistent with it. Not only did the Minister consider the applicant’s contention, he accepted it. He simply did not, in light of other matters, consider it “another reason” why the Cancellation Decision should be revoked.

31    The Minister was not obliged to express his conclusion in the language that the applicant employed. Contrary to the applicant’s submission, he was not obliged to make any assessment of the “degree” to which the impediments under which the applicant labours might impede his capacity to “establish a basic standard of living”. I confess some uncertainty as to how any such assessment might be made. Regardless, the issue that here presents is whether or not the submission that the applicant advanced—namely, that his health and other conditions would conspire to make his “subsist[ence]” in Turkey a “struggle”—was considered. It was.

32    Ground One is not made out.

Ground Two: failure to comprehend rehabilitation submission

33    Ground Two concerns conclusions that the Minister drew from the applicant’s criminal history. In his Non-Revocation Decision, the Minister addressed that history and the ongoing risk that the applicant poses in light of it. That analysis culminated in the following observations:

126.    I have considered the antisocial values and drug abuse issues that have contributed to Mr GUCLUKOL’s offending. I note that while in custody, he has undertaken rehabilitative interventions, abstained from use of illicit drugs, and been of good behaviour. I have considered Mr GUCLUKOL’s remorse for his behaviour and his motivation to restore his relationships with his children and former partner. However, in light of his relatively short period of rehabilitation relative to his long history of offending and drug use, his rehabilitation being untested in the community, and his limited insight into his offending behaviour, I could not rule out the prospect of Mr GUCLUKOL committing further offences.

127. I find that there is an ongoing likelihood that Mr GUCLUKOL will reoffend. I consider that should Mr GUCLUKOL commit further violent or sexual offences, it could result in physical and psychological harm to members of the Australian community.

Earlier, the Minister referred to the applicant’s “long history of drug use and violent offending”.

34    The Minister’s reference to the applicant’s lack of “insight into his offending behaviour” arose from an email submission that the applicant authored in May 2018, in which he stated:

I firmly believe that I am of basically decent character and that I could get my visa back. I told my family not to worry; that my crime was of a minor nature and essentially an aberration.

35    The applicant’s written submissions explain as follows the error that is said to be inherent in the Minister’s observations:

…the [Minister] failed to understand the reason being advanced as to why the [Cancellation Decision] should be revoked. A “reason” why the [Cancellation Decision] should be revoked was that immediately prior to his most recent offending, Mr Guclukol had resided in the Australian community for a period of twenty years during which time he had not been convicted of an offence, and that this evidenced a substantial period of rehabilitation and good conduct. A period of two decades without conviction is evidence of significant rehabilitation, tested in the Australian community. It is also evidence that, properly understood, was capable of bearing on the assessment of the likelihood that Mr Guclukol’s offending in 2015 indicated that he was likely to further offend.

The [Minister] failed to have regard to this “reason”. Instead, the [Minister] conflated Mr Guclukol’s recent offending with his historical offending and mischaracterised Mr Guclukol’s submissions on rehabilitation and remorse.

36    As to the Minister’s reference to his “long history” of offending, the applicant submitted:

That is not a fair characterisation of Mr Guclukol’s offending. Mr Guclukol had two periods of violent offending, broken by a 20-year period without conviction. That cannot be characterised as a “long history of violent offending”, which suggests consistent and regular offending over an extended period of time. Mr Guclukol has, objectively measured, a relatively short period of offending, spanning only 4 years, the third and fourth of those years being broken by a span of twenty.

37    As to the May 2018 email, the applicant submitted as follows:

The [Minister]’s reasoning reveals that he misconstrued Mr Guclukol’s submission. The extracts relied on by the [Minister] are, on a fair reading, to be read in the past tense. Mr Guclukol’s statement that “I firmly believe that I am of basically decent character and that I could get my visa back”, while phrase[d] in the present tense is referring to a past state of mind. Mr Guclukol was not asserting that he held those beliefs at the time of writing, but rather that he held those views at the time of receiving the notice of cancellation. That is apparent from the last paragraph on that page, and the first paragraph on the following page. These passages put Mr Guclukol’s statement in its proper context: he is describing first his initial response to the proposed cancellation and then his comprehension of the true seriousness of this situation.

In effect, the [Minister] took Mr Guclukol’s statements about his previous state of mind as evidence of his existing state of mind. That is a mischaracterisation of the “reason” advanced by Mr Guclukol for revocation: which was not that he was “of basically decent character and that he could get his visa back”, but that he had previously held such views, and was now on a path towards understanding and acceptance of the seriousness of both his offending, and the consequences of his offending.

38    The “last paragraph on that page, and the first paragraph on the following page” of the May 2018 email (to which the passage above refers) read as follows:

Over time however, as I spent ever more time in detention, the reality of the life I was living; the life my family has ended up suffering in—began to dawn on all of us. What if I never got my visa back?

The questions from my family only got worse when my appeal was declined and the accumulated stress on the family really showed. This will of course only get worse and I fear greatly for the welfare of my family.

Those passages followed immediately from the applicant’s observation that his “…crime was of a minor nature and essentially an aberration” (above, [34]).

39    Finally, the applicant submitted that, in truth, there was nothing in his criminal past that could fairly ground the Minister’s finding that there was “…an ongoing likelihood that [the applicant] will reoffend”. As I appreciate it, the applicant’s submission was that the Minister’s finding to the contrary was attended by legal unreasonableness of the kind to which the High Court referred in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ).

40    As with Ground One, there are two aspects to Ground Two that require consideration: first, whether the Minister misunderstood the applicant’s submission that he had lived a substantial period without offending; and second, whether the Minister misunderstood the applicant’s May 2018 email. Each misconstruction, it is said, resulted in the Minister’s mischaracterising (and, thereby, his failing to consider) a reason that the applicant advanced in favour of revocation of the Cancellation Decision. A third dimension arises in consequence of the first: it is said that the Minister’s ultimate finding (that there was an ongoing risk that the applicant will reoffend) was “without foundation”.

41    With respect, none of those allegations can be sustained.

42    I deal, first, with the suggestion that the Minister failed to appreciate (or otherwise consider the applicant’s contention) that the applicant had lived a substantial period of time without offending. By his written submissions in response to the applicant’s, the Minister contended (references omitted):

The Minister was clearly aware that the applicant’s convictions for serious offences were in 1987, 1989 and 2015. Any suggestion that the Minister wrongly thought or believed that there were other convictions in the period between 1989 and 2015 is without foundation. And, if any such suggestion is dismissed, then debate about whether expressions such as the applicant having a “long history” of violent offending was the best way to “characterise” or “describe” the objective facts is arid, and may represent an instance of reading the Minister’s reasons overzealously with an eye keenly attuned to the perception of error, contrary to well-known principle.

43    Broadly (and with respect), I agree.

44    The applicant’s central complaint is that the Minister’s characterisation of his having a “long history” of offending is unfair. I don’t accept that it is. To describe the applicant as possessing a long history of offending is to observe that his offending has spanned a long period of time, as plainly it has. Although clearly it could, that characterisation does not necessarily imply that the offending over that lengthy period was consistent or repetitive.

45    But even if that’s wrong and the Minister’s description of the applicant’s long history of offending is unfair, that, by itself, is not a reason to suspect that the Minister misunderstood what the applicant advanced. The applicant’s history of offending was a matter of record (constituted most conveniently by a National Police Certificate dated 23 March 2016), to which the Minister expressly referred in his Non-Revocation Decision. There is no basis to suspect that the Minister wrongly believed that there might have been other convictions by reason of which the applicant’s history of offending was properly described as “long”. The Non-Revocation Decision, insofar as it refers to the applicant’s criminal history, cannot fairly be read as referencing any convictions beyond those to which it expressly refers.

46    At its heart, the applicant’s complaint is that the Minister was wrong to conclude as he did with respect to the ongoing risk that the applicant poses—a conclusion formed, plainly enough, alongside his characterisation of the applicant’s criminal history as “long”. Absent legal unreasonableness (to which attention is directed below), whether he was wrong or not on that score is not a question that excites this court’s jurisdiction to review the Non-Revocation Decision. At worst, if the Minister’s characterisation of the applicant’s criminal history was unfair or wrong, that was an error that was made within jurisdiction.

47    The second aspect of Ground Two attracts a similar analysis. The Minister was entitled to construe the May 2018 email in the way that he did. Indeed, his construction of it accords with my own. In saying so, I do not discount the possibility that the applicant meant something other than what he said, or that his words might fairly be read in the way that he now urges that they should be. But in order to succeed on this front, the applicant needs to demonstrate that it wasn’t open to the Minister to discern the “limited insight” that he attributed to the applicant (above, [33]). That is not possible. The email—or the part of it in which the applicant expressed his firm belief that “I am of basically decent character”—is not phrased in the past tense. Even if it should be read as though it were, there is no subsequent qualification of the views that it records the applicant as having held, at least at some point in time. Even on the construction of the email most beneficial to the applicant, the Minister was entitled to infer as he did.

48    Likewise, on the question of legal unreasonableness more broadly, it cannot be said that the Minister’s conclusion (that there is an ongoing risk that the applicant will reoffend) was the product of extreme illogicality or irrationality, or was otherwise one at which no decision maker could reasonably have arrived. Despite multiple convictions and many years of incarceration over the course of his adult life, the applicant in 2015 committed the serious offences that triggered the Cancellation Decision. In that context, he might fairly be thought to pose a risk of the sort to which the Minister referred. Whether that conclusion was correct might be debated; but it cannot fairly be said that the Minister had no foundation upon which to draw it.

49    Ground Two is not made out.

Ground three: failure to take account of evidence

50    Ground Three concerns the circumstances that led to the applicant’s offending in 2015. The applicant attributed that offending, in part, to his poor health (specifically, back and dental conditions from which he was then suffering). In his Revocation Submissions, the applicant said as follows:

The [a]pplicant’s drug use prior to the latest conviction partly stemmed from a debilitating back injury suffered in or around 2006… [He h]as also suffered significantly from dental problems/infections. He appreciates that this does not justify his behaviour (particularly to those who he cares about most) but does help to illustrate a turning point in his behaviour and the steps that he [has] taken to ensure that if his visa cancellation is revoked he will not reoffend.

51    Elsewhere, his representative explained that:

…part of the reason for the [a]pplicant’s most recent offending was his drug use stemming from a debilitating back injury suffered in 2008. In support of this submission we have provided a copy of the [a]pplicant’s medical records… which show that the [a]pplicant presented in May/ June 2008 with a prolapsed disc in his back. The [a]pplicant had sustained this injury when he was lifting a heavy rug and subsequently attend[ed] at hospital. The severity of the injury is reflected in the fact that the [a]pplicant was issued with a medical certificate for two months – from 2 June 2008 until 31 August 2008.

From this time onwards, the medical records show that the [a]pplicant struggled with ongoing back pain and increasingly had issues with dependence on his prescription medication. There is also intermittent mention of the [a]pplicant’s dental problems. For example:

•    In November 2008 the [a]pplicant’s doctor expresses concern about the [a]pplicant’s request for repeat scripts for his medication.

•    In February 2009, the [a]pplicant had a discectomy and [his doctor] notes that ‘drug dependence discussed.’

•    In December 2019, the [a]pplicant had an infected tooth.

•    In September 2009, the [a]pplicant begins laser therapy for the pain.

•    In February 2010, the [a]pplicant’s doctor notes that the [a]pplicant’s pain is improving but that the [a]pplicant still has numbness in his legs.

•    In March 2010, the [a]pplicant is noted as having teeth falling out and gum problems.

•    In April 2010, the [a]pplicant is noted as still being on oxycontin.

•    In September 2010, the [a]pplicant had dental surgery.

•    In April 2011, the doctor records the [a]pplicant as ‘trying not to go back on heavy opiates’.

•    March and June 2015, the doctor notes ongoing dental infection.

As part of his struggle with chronic pain, the [a]pplicant increasingly relied on his prescription medication and became addicted to the medication. This also coincided with use of crystal methamphetamine. While the [a]pplicant fully appreciates that this does not justify his behaviour (particularly to those who he cares about most), the medical records do help to illustrate the circumstances that precipitated his offending.

52    In another document headed “personal circumstances form”, which the applicant provided to the Minister prior to the Cancellation Decision, the applicant was asked whether he believed that there were any factors that helped to explain his offences that the Minister ought to take into account. The applicant noted as follows:

-    significant back injury lead to problems with drugs + health problems

-    long period prior to this with no history of violent offending between periods from leaving prison to re-offending

53    In his Non-Revocation Decision, the Minister considered some circumstances that tended, or were said, to mitigate the applicant’s offending, or to reduce his responsibility for his behaviour. None of the circumstances referred to in the passages replicated in [50]-[52] above were amongst those that were considered.

54    The applicant contends that, by identifying the various health complaints set out in the passages above, he was identifying matters that reduced his culpability for his 2015 offending. By assessing the applicant’s culpability for that offending without having regard to those complaints, the Minister should, so the contention proceeds, be understood to have overlooked what the applicant advanced; in other words, to have failed to address a mandatory relevant consideration (and, thereby, to have committed jurisdictional error).

55    Respectfully, that submission must be rejected for two reasons. First (and contrary to what he now contends), it is not apparent that any of the submissions that the applicant advanced about his health (above, [50]-[52]) were advanced in aid of an argument that his offending should have been assessed as less serious than it otherwise might have been (in other words, were advanced in relation to the issue of mitigation rather than causation).

56    Second and in any event, the Minister did take account of the applicant’s submissions. In his Non-Revocation Decision, the Minister recorded as follows some submissions and findings as to the matters that led to the applicant’s 2015 offending:

Causal factors

94.     I have had regard to Mr GUCLUKOL’s letter of 28 February 2017, where he sates ‘I do not blame drugs for my offending but my ice use fuelled my actions. I was not able to get support for my drug use until I was in jail. I started using drugs when I hurt my back. As a labourer, I couldn’t work after this and used drugs to cope with my unemployment.’

95.     I note [the applicant’s then legal representative]’s statement that Mr GUCLUKOL’s drug use prior to his 2015 conviction ‘partly stemmed from a debilitating back injury suffered in or around 2006.’ I note medical records have been submitted to ‘illustrate the problems that he has suffered as a result of this back injury’. [The applicant’s then legal representative] also states Mr GUCLUKOL has ‘suffered significantly from dental problems/infections,’ and goes on to note that ‘He appreciates that this does not justify his behaviour…’.

96.     I do not consider use of illicit drugs a reasonable response to injuries or unemployment, and note Mr GUCLUKOL was convicted of a drug possession offence in 1994, prior to his medical issues. I accept Mr GUCLUKOL’s submission that his drug use contributed to his offending.

97.     While Mr GUCLUKOL states that his drug use was not to blame for his offending, he has not given any indication as to what he does consider to be the cause of his behaviour. I consider Mr GUCLUKOL’s history of violent and sexual offending to be indicative of antisocial values and attitudes, which were also apparent in his family violence offences of 2015. I acknowledge that over 25 years had elapsed between the 2015 offences and his previous violent offending. Nevertheless, I note the 2015 offences were not a single relapse into violence, but two separate incidents occurring on 9 March 2015 and 28 March 2015 respectively.

98.     I find that the primary causes of Mr GUCLUKOL’s offending behaviour are his antisocial values and attitudes, along with his use of illicit drugs.

57    The applicant’s health complaints (including the back and dental complaints that are the subject of the passages set out at [50]-[52] above) were plainly within the Minister’s contemplation. Not only that, they were considered consistently with how the applicant hoped that they would be. The submissions that he made about his health conditions (above, [50]-[52]) were designed to alert the Minister to the fact that those conditions existed at the time of the relevant offending; that they formed part of the factual backdrop against which the offending occurred. That is precisely the context in which they were received and appear to have been understood.

58    In the context of a non-revocation decision, the distinction that the applicant seeks to draw—and, indeed, the distinction that the Minister did draw—between causation and mitigation is not especially helpful. The two concepts inevitably overlap: circumstances that demonstrate why offending should be viewed as less serious than might otherwise be the case often (if not typically) also demonstrate why it occurred; and circumstances that demonstrate why offending occurred will often (if not always) inform the moral culpability that attaches to the wrongdoer by whom it was effected. Intending no disrespect, the applicant’s attempt to more minutely characterise his submissions—that is, to characterise them specifically as submissions about mitigation rather than cause—is artificial.

59    Ground Three is not made out.

Conclusion

60    The Non-Revocation Decision was not the product of any one or more of the species of jurisdictional error that the applicant alleges. It follows that his application must be dismissed with the usual order as to costs.

Associate:

Dated:    7 February 2020