FEDERAL COURT OF AUSTRALIA
Webb v Minister for Home Affairs [2020] FCA 831
ORDERS
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Applicant | ||
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AND: |
Respondent | |
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DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be allowed.
2. A writ in the nature of certiorari be issued to the Minister quashing his decision dated 28 August 2019 to refuse to revoke the mandatory cancellation of the Applicant’s visa.
3. A writ in the nature of mandamus be issued to the Minister requiring him to determine the application according to law.
4. The Minister pay the Applicant’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.
ANASTASSIOU J:
introduction
1 The application before the Court concerns a decision of the Respondent Minister for Home Affairs, which will have the consequence that five Australian children, one aged eleven, twins aged eight, one aged six and one aged three, are to remain in Australia; while their mother, the Applicant, is to be deported to the United Kingdom. The Applicant’s prior criminal offending and the reprieve she was given in 2016 when the Minister previously exercised his discretion in her favour to revoke an earlier mandatory cancellation of her visa, made the questions faced by the Minister far less stark than the above consequence might otherwise suggest. For the reasons that follow, I have concluded that although the decision was more finely balanced than at first appears, the Minister committed jurisdictional error in deciding not to revoke the cancellation of the Applicant’s visa.
Background
2 The Applicant was brought to Australia in 1988 from the United Kingdom at two years of age. She has lived in Australia ever since. She has never visited the United Kingdom since coming to Australia.
3 The Applicant’s parents separated when she was between approximately three and four years of age. Her mother re-partnered to a man who became abusive to her mother and to her. The family moved between Queensland, South Australia and Tasmania, before settling in Geelong in about 1998.
4 At the age of eight, the Applicant moved to live with her father in Geelong, though from time to time she stayed with her mother. Her father and step-mother separated when she was in her early teens. At this time the Applicant returned to live with her mother and step-father. By this time her step father’s drug and alcohol abuse had become more severe. He had been convicted of assaulting the Applicant’s mother and her sister.
5 In 2001 the Applicant and another girl about two years older than her, who was residing in the household, hit the Applicant’s step-father with a hockey stick and stabbed him, causing his death. In 2002 the Applicant was convicted of manslaughter. The Applicant was not given a custodial sentence and instead was subject to a bond to be of good behaviour for three years.
6 On 21 April 2015, the Applicant was convicted of Aggravated Burglary, Assault with a Weapon, Robbery and Being Unlawfully on Premises. She was sentenced to eighteen months imprisonment for these offences. Having been sentenced to a term of imprisonment for greater than twelve months the Applicant was deemed to have a substantial criminal record by operation of ss 501(7)(a)-(c) of the Migration Act 1958 (Cth). On 3 March 2016 the Applicant’s visa was cancelled under s 501(3A) of the Act.
7 On 8 November 2016 the Minister revoked the cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Act following representations on her behalf. Subsequent to this first revocation the Applicant committed further offences.
8 On 5 March 2018 the Applicant was convicted of Theft, Shop Stealing, Committing an Indictable Offence while on Bail and Failing to Answer Bail. She was sentenced to 100 days imprisonment for these offences.
9 The Applicant’s visa was cancelled on 20 April 2018 pursuant to s 501(3A) of the Act. She was deemed not to pass the character test pursuant to ss 501(7)(a)-(c) by reason of the offences she had committed in 2015.
10 In May 2018 the Applicant made representations to the Minister seeking revocation of this second cancellation of her visa. On 28 August 2019 the Minister refused to revoke the visa cancellation. That decision is the subject of the present application.
11 At the time of the decision, the Applicant had five children, all of whom are Australian citizens: Tyson aged eleven, Chase and Nakita both aged eight, Matthew aged six and Shae-Lee aged three. Tyson lives with his father in Perth and has done so since he was approximately 18 months old. Chase, Nakita and Matthew live with their paternal grandmother. Shae-Lee lives with Ms Webb’s mother in Geelong.
Application
12 The Applicant seeks judicial review pursuant to s 476A of the Act of the decision of the Minister made 28 August 2019, and notified to the Applicant on 2 September 2019, by which the Minister refused to exercise his power under s 501CA(4) of the Act to revoke the mandatory cancellation of her visa. Until 20 April 2018 the Applicant held a Class BF transitional (permanent) visa. The visa was cancelled by the Minister’s delegate under s 501(3A) of the Act.
13 The grounds for review upon which the Applicant relies are contained in her Amended Originating Motion dated 10 January 2020 set out below.
1. The Minister erred in failing to exercise his statutory jurisdiction under s 501CA of the Migration Act 1958 (the Act) in that he failed to give proper, genuine and realistic consideration to representations made by the Applicant regarding the best interests of her five children.
Particulars
A. The Minister failed to consider the specific nature of any child protection orders in place with respect to each child, despite the reference to family reunification orders made by the Applicant in the Personal Circumstances Form dated 15 May 2018.
B. The Minister gave no genuine consideration to the representations as to the ongoing support the Applicant would receive from:
i. the Victorian Department of Health and Human Services;
ii. Ms Cheryl Webb; and
iii. Mrs Marjorie Wedding -
if the Applicant was to remain in Australia,
C. The Minister gave no genuine consideration to the likelihood of her youngest children:
i. suffering long-term harm due to a lack of a meaningful relationship with their mother; and
ii. having no alternative than State care -
if the Applicant was removed from Australia.
D. The Minister gave no genuine consideration to the potential exacerbation of intergenerational trauma which four of the Applicant’s children whose (now deceased) father identified as Aboriginal and as victims of the Stolen Generation.
2. The Minister erred the Minister erred in failing to exercise his statutory jurisdiction under s 501CA of the Act in that he made findings of fact for which there was no evidence concerning the impediments the Applicant would face if returned to the United Kingdom.
Particulars
The Minister found that:
(a) the Applicant would or will have access in the United Kingdom to health care, education, social welfare and housing support in the United Kingdom; and
(b) those services would be of a comparable standard to those available in Australia -
without identifying a basis on which the conclusions were reached.
3. Further or alternatively to Ground 2, the Minister erred in failing to exercise his statutory jurisdiction under s 501CA of the Act in that he failed to give proper, genuine and realistic consideration to the Applicant’s representations concerning the impediments that she would face if returned to the United Kingdom.
Particulars
A. The Minister failed to give genuine consideration to the representations that, by reason of the Applicant having:
i. no support from family or friends;
ii. no money or independent source of income; and
iii. no familiarity with conditions in the United Kingdom -
the Applicant would have:
iv. no accommodation;
v. difficulties accessing treatment and medication for her specific physical health, mental health and drug use issues;
vi. poor prospects of supporting herself financially because of her limited employment history; and
vii. significant psychological and emotional hardship due to being separated from her family in Australia and her social isolation in the United Kingdom.
B. The Minister made findings as particularised in Ground 2 above but gave no genuine consideration as to how or when those services would be achieved in practice.
C. The Minister failed to give proper consideration to the extent of the impediments the Applicant may face if returned to the United Kingdom other than a “risk of dying”.
4. The Minister’s decision to refuse the Applicant’s request for revocation of the decision to cancel her visa was legally unreasonable with respect to his finding that she posed an unacceptable risk of harm to the Australian community.
Particulars
A. The Minister concluded that the Applicant was a risk of further offending “in a similar fashion” which would expose the Australian community to “significant harm” (being “physical and/or psychological harm” caused by serious violent offending) notwithstanding his acknowledgement that most of her recent offences were dishonesty-type offences in the nature of theft.
B. The Minister conflated the “significant harms” associated with specific violent offences which caused “physical and/or psychological harm” with the Applicant’s general recidivism for which there was no evidence of any harm.
C. The Minister considered that the manslaughter offence must necessarily be considered “very serious” and that in considering her criminal history it was necessary to take into account the “particular seriousness of some specific matters” without giving reasonable consideration to the extraordinary circumstances in which the offence was committed, including extreme violence against the Applicant and her mother, and that it resulted in a non-custodial sentence.
D. The Minister’s finding that he doubted the Applicant would not reoffend because of her non-compliance with judicial orders was based solely on speculation.
E. The Minister found that the Applicant was “attempting to downplay” her offending notwithstanding claims made by her expressing feeling “extremely ashamed”, acknowledging the seriousness of her conduct and “in no way” trying to excuse that conduct.
F. The Minister’s finding that the Applicant had not developed “full insight into her offending” was based on speculation.
G. The Minister found that the Applicant had not been able to address her “full rehabilitation needs” despite of her most recent offences being much less serious in nature and gravity and there being no evidence they involved any harm, representing a de-escalation in her offending behaviour.
H. The Minister found that the Applicant recent rehabilitative efforts had not been tested in the community when her inability to do so was by reason of the operation of ss 189 and 196 of the Act.
I. The Minister found that the Applicant’s involvement in a single incident in immigration detention was “not consistent with her claimed rehabilitation” notwithstanding the Applicant’s otherwise good behaviour.
J. In so doing, the justification for the Minister’s finding that the Applicant was an unacceptable risk of harm to the Australian community, outweighing all countervailing considerations, on the basis that the Australian community could be exposed to “significant harm” should the Applicant reoffend “in a similar fashion” and that he could not rule out the possibility of further offending by the Applicant, was outside the bounds of reasonableness.
14 The above grounds are expressed separately and to the extent necessary I shall consider them separately. However, there is substantial commonality between the grounds because they concern either the relationship between the Applicant and her children, the children’s interests and what is to become of them if the Applicant is deported and the Applicant’s interests and what is to become of her if she is deported. Plainly those subjects are interwoven.
15 The Applicant made representations to the Minister seeking that he exercise his power under s 501CA(4)(b)(ii) of the Act to revoke the cancellation of her visa, on the grounds that there were other reasons why the cancellation should be revoked.
16 I now turn to the Applicant’s grounds of review of the Minister’s decision.
Ground 1
17 Ground 1 concerns the consideration given by the Minister to representations made by the Applicant regarding the best interests of her five children. The Applicant contends that the Minister failed to give proper, genuine and realistic consideration to matters relevant to the interests of the children and therefore failed his legal duty. She relies on Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 and Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 56 at [35]-[37].
18 In Carrascalao the Full Court of this Court at [35] held that the phrase “proper, genuine and realistic consideration” means to engage in an active intellectual process directed at a claim or criterion:
… Its use relates specifically to their contention that, in considering whether or not to exercise his power under s 501(3), the Minister was under a legal obligation to consider the merits of their particular cases and that such consideration had to be meaningful, in the sense of being “proper, genuine and realistic”. As we will explain below, we consider that the evaluative judgment which the Court must undertake in assessing whether the Minister has properly considered the merits of the cases before him requires focus on the question of whether the applicants have established that the Minister did not engage in an active intellectual process in determining whether or not to exercise his power under s 501(3) of the Act.
19 In Omar, the Full Court of this Court further examined the relevant legal principles in determining whether a Minister gave proper consideration to representations made. The Full Court said at [36(d)]:
… even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations.
…
And at [37]:
The Minister’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request is also consistent with the following observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed):
…The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
20 I note that in Hands Markovic J (at [54]) agreed with the reasoning of the Chief Justice, and Steward J (at [55]) agreed with the reasoning regarding a particular erroneous finding, namely that resettlement in New Zealand could be accomplished “without undue difficulty”, and therefore agreed in the result.
21 The Applicant relied upon four matters to support the contention that the Minister did not give proper, genuine and realistic consideration to the best interests of the Applicant’s children. Those matters were summarised in the Applicant’s written submissions under the following sub-headings under Ground 1:
(1) Failure to consider readily available or easily ascertained child protection orders;
(2) Failure to properly consider the impact of deportation on the children;
(3) Failure to consider the impact of foster care; and
(4) Exacerbation of intergenerational trauma.
The above sub-headings are expressed more concisely than the particulars given in the Amended Originating Application under Ground 1, but may be correlated to the particulars thematically.
Sub-heading (1) – Failure to consider readily available or easily ascertained child protection orders
22 Under sub-heading (1), the Applicant contends that the Minister failed to consider the specific nature of any child protection orders, notwithstanding that the Applicant referred to such orders in her Personal Circumstances Form dated 15 May 2018. In the Form the Applicant said: “I have Reunification Orders with Chase, Nakita, Matthew and Shae-Lee. I’ve attached copy’s [sic] of the Orders.” Each of these sentences contained an error. As to the first sentence, there were no relevant orders in place concerning Chase, Nakita or Matthew. However, in relation to Shae-Lee there were relevant orders in place pursuant to the Children, Youth and Families Act 2005 (Vic) known as Family Preservation Orders. The second sentence was wrong simply because the Applicant had failed to attach any orders to the Form.
23 In the Form the Applicant also said: “Chase, Nakita & Matthew live with their paternal grandmother as their father died whilst I was in custody & I had nobody else to care for 3 young children. I send letters to my children but the Grandma doesn’t give them to the kids so I’ve taken her back to Court & now there’s a Reunification Order in place so while I’m in detention I will have contact with them.” As I have noted above, this statement was incorrect insofar as the Applicant claimed to have a “Reunification Order” in place in relation to Chase, Nakita and Matthew.
24 The Applicant submitted that the Minister’s failure to call for the Orders, which he knew had not been attached to the Form, was an indicator, or badge, of his failure to give proper consideration to the representations concerning the best interests of the Applicant’s children. She contended that without asking to see the Orders the Minister could not know whether the Applicant would be able to resume parental care for Chase, Nakita, Matthew and Shae-Lee. The Applicant further contended that had the Minister inquired, he would have discovered that there were no orders in place with respect to Chase, Matthew and Nakita, and had the Minister been aware of this information, he should have concluded that there was no legal impediment to the Applicant resuming parental care of Chase, Matthew and Nakita.
25 The Applicant contended that the Minister was under a duty to make “an obvious inquiry about a critical fact, the existence of which is easily ascertained.” See Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]. Thus it was submitted that the Minister was incapable of giving meaningful consideration to the issue and therefore could not have formed a state of satisfaction of a kind required of him under s 501CA(4).
26 The Applicant conceded that the Minister had no legal duty to make inquiries into the representations made. Rather, the Applicant’s contention was based on the observation in SZIAI to the effect that where a Minister fails to make an inquiry into a critical fact which may be easily ascertained, such a failure may itself constitute a jurisdictional error. At [25] of SZIAI the High Court held:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
27 In Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 Kenny J observed at [63]:
The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceeded [sic] to make the decision without making the enquiry: see Prasad 6 FCR at 169-170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178 per Toohey J (Videto); Luu v Renevier (1989) 91 ALR 39 at 47-50 per Davies, Wilcox and Pincus JJ (Luu v Renevier); Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 139 at 143 per Pincus J (Detsongjarus); Rahman [2000] FCA 1277 at [30] per French J; Tickner v Bropho (1993) 40 FCR 183 at 197-198 per Black CJ; Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325 at [12] per French J; Yang v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 571 at 579 per Ryan and Finkelstein JJ (Yang). This proposition is also discussed in other cases, such as Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288 per Foster J and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289-90 per Mason CJ and Deane J and 321 per McHugh J. …
28 The Minister contended that he was under no legal obligation to request that the Applicant provide a copy of the Orders, as the asserted gap in the information available to him concerned matters within the knowledge of the Applicant. He submitted that the Applicant’s representations concerning the Orders were consistent with other representations made by the Applicant concerning access to her children. Further, the Minister submitted that the failure to ask for the Orders was not material in circumstances where he had expressly noted that the Applicant had not attached a copy of the Orders to her Form and where he had described the Orders consistent with representations that had been made to him concerning the Orders.
29 I regard this debate as arid. In my view, whether or not the Minister had sought a copy of the Orders is largely, if not entirely, beside the point so far as the real question raised by Ground 1 is concerned. That question is whether the Minister gave proper consideration to the interests of the Applicant’s children. I do not accept that the failure by the Minister to inquire further about the Orders is an omission from which it may be reasonably inferred that he failed to give proper consideration to the relevant representations made by the Applicant.
30 I do not suggest that the information that would, or may, have been revealed had the Minister made an inquiry about the Orders is immaterial. The inquiry would have revealed that there were no court orders pertaining to Chase, Matthew or Nakita. The Applicant submits that this would have indicated there were no court orders impeding the Applicant renewing such parenting arrangements as may be possible. I accept that such information may have been material to the Minister’s decision. But that is not the question.
31 The relevant question is anterior to any question of materiality, namely whether the Minister’s failure to inquire about the Orders is an omission from which it may be inferred that he failed to give proper consideration to the Applicant’s representations. That question cannot logically be answered by considering the information that would, or may, on a counter factual hypothesis have been revealed if the inquiry had been made; unless the information about which the inquiry should have been directed could reasonably be anticipated by the decision-maker to be material to his or her decision in advance of any answer to that inquiry.
32 In my view there was nothing about the Orders as described by the Applicant that would suggest to the Minister there was information material to his decision that would be revealed if he asked for the Orders to be produced. For this reason I do not accept that the Minister’s failure to inquire about the Orders, or to ask for a copy of them, is a relevant indicator that he failed to give proper consideration to the interests of the Applicant’s children.
Sub-heading (2) – Failure to consider the impact of deportation on the children
33 The second matter relied upon by the Applicant under Ground 1 was that the Minister failed to properly consider the impact of deportation of the Applicant on her children. This sub-heading correlates to the particulars given in paragraph C to Ground 1.
34 The Minister found at [22] of his Reasons that it was in the best interests of Chase, Nakita and Matthew to revoke the cancellation of the Applicant’s visa “so that they have the opportunity to have direct personal contact with her in the future”. The Minister then said that he had given “somewhat” reduced weight to this consideration as the Applicant was not their primary carer and “available information does not indicate that she is likely to be in the foreseeable future, so they would not be deprived of parental care by her removal from Australia.”
35 In relation to Shae-Lee, the Minister at [24] said:
Noting Ms Webb’s advice that her mother suffers from some health problems and is finding it tiring to look after Shae Lee, I accept that the mother may not be able to continue to provide parental care for Shae Lee indefinitely and if so, it will be important that another person is able to step into this role. On the available information, the most likely person to do so is Ms Webb. I find that it is in the best interests of Shae Lee to revoke the cancellation of Ms Webb’s visa.
36 The Applicant contended that the Minister unduly confined his evaluation of the impact of her deportation only to whether the Applicant would resume being the children’s direct parental carer, though her representations as to the best interests of her children were broader.
37 The Minister submitted that he had considered the practical likelihood of the Applicant becoming the primary carer of the children and concluded that the available information did not indicate this was likely in the foreseeable future. He submitted that the fact he gave particular attention to whether there was a person who could provide parental care for the children does not mean that he discounted the importance of a child otherwise having a connection with his or her parents. Further, in the case of Chase, Nakita and Matthew he concluded that it was in their best interests that the cancellation be revoked so that they may have direct personal contact with the Applicant.
38 As a general proposition, it cannot be gainsaid that it was, and remains, in the best interests of each of the children that they have the opportunity to have direct personal contact with the Applicant. However, a general acknowledgement of that proposition is to say little more than one is in favour of motherhood. Such general acknowledgment does not reveal that the Minister gave proper consideration to the value of the children continuing to have the opportunity for personal contact with their mother, nor the gravity of the consequences for them, and for the Applicant, if that were no longer possible.
39 Needless to say, children have too often been tragically deprived of their parents due to accident, misadventure, war, disease, marital breakdown and other causes. But if a child is to be practically deprived of the opportunity for direct personal contact with a parent as a result of an administrative decision, it surely behoves the decision-maker to clearly explain the consideration he or she has given to the consequences for the child.
40 The objective facts concerning the Applicant’s children, in particular their ages as well as their separation due to being in the direct care of different grandparents and in the case of Tyson, his biological father, need only be mentioned for it to be clear that it is in their best interests that the cancellation of their mother’s visa be revoked. The children are young, four of the five have no living father, three of them live with their paternal grandparents, one lives with his biological father and the youngest, with her maternal grandmother. The Applicant has been separated from them as their primary carer for a considerable time, for some time due to incarceration for criminal offences, for some time due to being in immigration detention and in the case of one of them, Tyson, due to marital separation.
41 The Minister was of course aware of these circumstances and referred to them. Indeed, he placed weight on the fact that the Applicant was not the primary carer for any of the children. In relation to Chase, Nakita and Matthew he placed “somewhat reduced weight” on the loss of opportunity to have direct personal contact because the Applicant was not their primary carer.
42 In relation to Shae-Lee the Minister accepted that the Applicant’s mother may not be able to continue to provide parental care indefinitely. The Minister accepted that in those circumstances the most likely person to take her place is the Applicant. Thus in relation to the youngest child, Shae-Lee, the Minister accepted the likelihood that the Applicant would in future be her primary carer.
43 I find the Minister’s express consideration of the consequences for the children of their mother’s deportation to be sparse in the circumstances. The Minister does not explain his Reasons for reaching the conclusion that revoking the cancellation is in the best interests of the children, save to acknowledge in relation to Chase, Matthew and Nakita that they will be deprived of the opportunity of direct personal contact, and in relation to Shae-Lee, deprived of the Applicant as the likely primary carer when the Applicant’s mother is no longer able to care for her.
44 The Minister does not say that revocation of the cancellation of the Applicant’s visa is so patently in the best interests of the children that nothing more need be said. Rather, on the one hand the Minister acknowledges this conclusion, yet on the other says he has given reduced weight to the children being deprived of the opportunity for direct contact with the Applicant because of the unlikelihood that she will become the primary carer in the case of Chase, Nakita and Matthew.
45 The Minister’s Reasons in this respect convey an impression that he has accepted, because he must, that revoking the cancellation is in the best interests of the children, as any other conclusion is not reasonably open having regard to the objective circumstances referred to above. However, the Minister’s Reasons in relation to this critical consideration do not explain why, or in what way, he considers that depriving Chase, Matthew and Nakita of the opportunity of direct personal contact makes revocation in their best interests, or why depriving Shae-Lee of the opportunity of the Applicant becoming her primary carer in future makes revocation in her best interests, while eschewing as I have noted above, any statement to the effect that the children’s best interests go without saying.
46 It may be said that having reached a conclusion in favour of the Applicant in relation to the best interests of the children, it was unnecessary for the Minister to say any more. Put another way, it may be said ‘the Applicant could not have done better.’ However, in my view the fact that the Minister came to a conclusion concerning the best interests of the children that was favourable to the application, does not dispense with the need for the Minister to express the reasons for this conclusion beyond acknowledging that it was in the best interests of the children to revoke the cancellation of the Applicant’s visa. A conclusion at that level would perhaps be sufficient if the conclusion was dispositive of the application. Here, the question of the best interests of the children was plainly significant but not dispositive.
47 The Minister was required to consider a basket of factors that had a bearing upon his discretion to revoke the cancellation. In the absence of reasons expressed by the Minister that reveal his understanding and appreciation of why revoking the cancellation is in the best interests of the children, that important factor becomes inscrutable, especially in terms of the weight he gave to it when considering other factors against exercising his discretion when reaching his ultimate conclusion to refuse the application.
48 The Applicant has framed Ground 1 on the basis that the Minister failed to give proper, genuine and realistic consideration to the representations made by the Applicant regarding the best interests of her children. One indicator of such a failure is a lack of adequate reasons or an opaque reasoning process. The Applicant did not put Ground 1 expressly on that basis, but it is imbedded in the contention that the Minister failed to give proper consideration to the best interests of the children.
49 In my view, the explanation given by the Minister in his Reasons for reaching the conclusion that it was in the best interests of the children to revoke the cancellation, reveal, incongruously, that he reached that conclusion without properly engaging with the issue. I agree with the Applicant that the Minister’s apparent failure to properly engage with the subject is in part revealed by the view he expressed in relation to the significance of the Applicant being unlikely to become the children’s direct parental carer. However, as I have said, I have come to this conclusion because of the lack of reasons which reveal substantive consideration of the interests of the children.
50 While, as I have said, the decision faced by the Minister whether to revoke the cancellation of the Applicant’s visa was not as stark as may first appear having regard to the first revocation and to the Applicant’s subsequent criminal offences, that qualification does not apply to the children, nor to the question of how the interests of the children should be weighed in the balance of matters to be considered in deciding whether the cancellation should be revoked. In circumstances where the adverse consequences for the children are extremely serious, I have concluded that the Minister’s failure to adequately explain in his Reasons his understanding of those consequences, at the very least, leaves open the inference that he did not give proper, genuine and realistic consideration to the representations of the Applicant concerning the best interests of the children.
51 A further basis relied upon by the Applicant in relation to the Minister’s consideration of the Applicant’s role as a parent and the benefit to her children of her being able to fulfil her role as a parent, concerned the representations the Applicant made about the support available to her from the Department of Human Services in Victoria, from her mother and from a volunteer support person with whom she had a relationship, Mrs Wedding. The Applicant contends that her representations in this regard were not properly considered.
52 It is clear from [22] of the Minister’s Reasons, that he considered it unlikely that the Applicant would become the primary carer of Chase, Nakita and Matthew in the foreseeable future. Having regard to that finding, the question of support available to the Applicant to assist her in her role, whatever form that may take, as a parent was less central in the Minister’s Reasons than it would have been if the Minister had found that it was likely the Applicant would become the primary carer of Chase, Matthew and Nakita.
53 Although the support available to the Applicant was plainly relevant to the Minister’s consideration of the Applicant’s ability to care for the children, I am not persuaded that this consideration was material in relation to Chase, Matthew and Nakita, having regard to the finding that it was unlikely that the Applicant would become their primary carer in the foreseeable future. This finding was challenged but only on the limited ground that had the Minister called for a copy of the Orders, the absence of any orders would have revealed that there was no impediment to the Applicant becoming the children’s primary carer due to any court orders.
54 The same reasoning does not apply to Shae-Lee, as the Minister found that the Applicant would likely become her primary carer. In relation to Shae-Lee there is no discussion in the Minister’s Reasons of the support available to the Applicant notwithstanding that finding. It appears from the Minister’s Reasons at [24] that the predicate of his reasoning concerning the impact of his decision on Shae-Lee was an acceptance that Shae-Lee would need to be cared for by some other person, when the Applicant’s mother could no longer do so. Thus the need to consider the support available to the Applicant in caring for Shae-Lee did not arise for a different reason; namely an implicit assumption that some other person, not the Applicant, would need to become Shae-Lee’s primary carer.
55 In my view the Minister failed to give proper consideration to what was in the best interests of Shae-Lee by failing to consider the benefits to Shae-Lee of having her mother become her primary carer. The Minister’s failure to expressly consider the representations made by the Applicant concerning the practical support available to her to assist her in becoming Shae-Lee’s primary carer is in my view an indicator of the Minister’s failure to properly engage with the question of what was in Shae-Lee’s best interests. As I have said above, it is not sufficient to recite, or declare as a conclusion, that it is in the best interests of Shae-Lee that the cancellation of the Applicant’s visa be revoked.
56 The Applicant’s representations concerning her prospects of becoming Shae-Lee’s primary carer required the Minister to consider the practical support available to the Applicant. The Minister’s failure to expressly have regard to the support available to the Applicant is an indicator that he failed to give proper consideration to the Applicant’s representations concerning the best interests of Shae-Lee.
Sub-heading (3) – Failure to consider the impact of foster care
57 Under the third sub-heading, the Applicant contended that a further indicator of the Minister’s failure to give proper consideration to the best interests of the children was his failure to consider the impact of foster care on the four younger children, Chase, Matthew, Nakita and Shae-Lee. It will be recalled that the father of these children was deceased by the time of the Minister’s decision, that Chase, Matthew and Nakita resided with their paternal grandmother and Shae-Lee with the Applicant’s mother. In these circumstances, especially given the young age of the children, it is likely that at some point in the future the children may require state care. In Shae-Lee’s case this appears more likely having regard to her age and to the evidence concerning the health issues affecting the Applicant’s mother.
58 I agree with the Applicant’s submissions that the Minister’s failure to consider the very real prospect that the younger children would end up in state care and the potential implications of that outcome for them, is an indicator of the Minister’s failure to give proper consideration to the interests of the four youngest children. The Minister does not expressly mention that possibility, though it was a real possibility on evidence available to the Minister. In my view this consequence is elided in the Minister’s Reasons, with emphasis instead given in [19]-[24] of the Reasons to the fact that the Applicant was not the primary carer of the children.
59 In the Minister’s written submissions at [36] it was submitted: “The Minister’s reasons at [22] (that removing the Applicant would not deprive these children of parental care) implicitly reject the Applicant’s submission that these children risked becoming wards of the State.” I do not agree with that construction. The last sentence of [22] of the Reasons is rather an observation that as the Applicant has not been the primary carer, the children “would not be deprived of parental care by her removal from Australia.”
60 With the father of the four younger children being deceased and the children living with their grandparents, if the Applicant is deported those four children will become, for all practical purposes, orphans. In my view, in those circumstances it was incumbent on the Minister to give express consideration to the likelihood that one or all of the younger children, especially Shae-Lee, would require state care at some point in the future. The Minister accepts at [24] that the Applicant’s mother may not be able to continue to provide parental care for Shae-Lee indefinitely and observes that “it will be important that another person is able to step into this role”. The Minister then finds on the available information that the most likely person to do so is the Applicant and concludes that it is in the best interests of Shae-Lee to revoke the cancellation of the Applicant’s visa.
61 The Minister is self-evidently correct that it will be important that another person is able to step into the parenting role. But as the most likely person to do that is the Applicant, in the absence of evidence that some other person, friend or relative, was able to provide primary parental care for Shae-Lee, the likely alternative of state care is highly probable, if not inevitable. And yet the Minister makes no express mention of that consequence and what it might mean for Shae-Lee and the other three younger children.
62 In my view the Minister’s failure to expressly address the likely consequence that the younger children would be placed in state care at some point in the future, or to give any express consideration to who else might care for them if and when their grandparents are no longer able to do so, is a further basis upon which I have concluded that he failed to properly consider the best interests of the children.
Sub-heading (4) – Inter generational trauma
63 The fourth and final matter referred to in the Applicant’s sub-headings in support of Ground 1 arises from a representation made on behalf of the Applicant concerning the aboriginal ancestry of Chase, Nakita, Matthew and Shae-Lee. The representation was that since the death of their father, Matthew West, “it has become apparent that Mr West’s family identified as aboriginal and as victims of the Stolen Generation … It is clear that the removal of Ms Webb from her children would only exacerbate the intergenerational trauma they already experience as a result of being descendants of the Stolen Generations. It is submitted that Ms Webb’s children, through their ancestry, have experienced historic injustices”.
64 The Minister referred to this representation at [21] in his Reasons, and said simply, “I have taken this into consideration.”
65 In the written submissions of the Minister at [41] it is submitted that: “When read in context, the Minister’s reasons at [21] can be taken to reject this submission as being a matter of any weight in the Minister’s decision.”
66 I agree it is open to construe the Reasons in this way, though it is an elliptical way of saying that the representation is rejected.
67 The Applicant in her written submissions referred to the critique by Allsop CJ in Hands at [3] quoted above concerning what is required if a matter is to be properly and genuinely taken into account.
68 Though the Minister was dismissive of the representation, the despatch with which he dealt with it was not a legal error in the present circumstances. The relevant facts here are very different to the relevant facts in Hands. Here, the Applicant does not make any claim to identify as an Aboriginal Australian, where as in Hands the appellant was an Aboriginal Australian and his removal would have an adverse effect on the Aboriginal community of which he was a member.
69 Most importantly, in my view, the representations concerning the connection between the deportation of the Applicant and the alleged consequences in relation to exacerbation of intergenerational trauma here are so tenuous and assertive as to be untenable. No evidence for this assertion was put before the Minister, merely the assertion itself. The making of such a representation does not impose any obligation upon the Minister to give it earnest consideration when the representation is without apparent evidentiary or analytical support.
Conclusion – Ground 1
70 For the above reasons Ground 1 is established.
Ground 2
71 In the Applicant’s submissions to the Minister, she stated:
I have lived in Australia since I was 2 years old. I’m now 30. I have never been overseas my whole life has been in Australia. My mother was adopted & both her adopted parents are dead so I have no family, no friends, no housing I don’t even understand London’s currency. If I got sent to London I would simply die that’s being completely honest.
I just wouldn’t be able to survive in another country. I have no money whatsoever, I have no accommodation, no family ties, no job. I don’t even have efficient [sic] clothing for the weather. I’d end up in jail or dead because to live I’d have to steal as that’s all I know how to do to survive
72 In the above statement the Applicant expresses the dread she feels at the prospect of being deported to a country she knows nothing about, where she knows no one and no one knows her. Although an emotional plea, the Applicant’s statement also conveys the objective facts which make her dread what may become of her plausible.
73 The Minister was required to consider the Applicant’s representations concerning the consequences for her of deportation. The underlying question raised by Ground 2 and Ground 3 is whether he gave proper and genuine consideration to those representations. Ground 2 and Ground 3 are related, because Ground 2 concerns the factual bases for findings made by the Minister about matters relevant to those consequences, and Ground 3 concerns whether the Minister gave proper consideration to those consequences.
74 Though these grounds overlap, they are not necessarily mutually dependent in the sense that the answer to Ground 2 necessarily determines the answer to Ground 3. If the Minister had an adequate factual basis for conclusions he reached concerning matters relevant to the Applicant’s representations, it does not necessarily follow that he properly considered those representations. However, if the Minister did not have adequate evidentiary support for those findings, it may be more readily inferred that the Minister failed to give proper consideration to the representations.
75 The Minister’s written submissions at [45] correctly summarise, at a high level, the relevant substantive findings of the Minister challenged under Ground 2. “In effect, there are two findings: (1) the Applicant would have the same access to medical services and social welfare as other citizens of the United Kingdom; and (2) the standards of health care, social welfare and housing support in the United Kingdom would be “comparable” to those in Australia.”
76 In addition to the representations referred to above, the Applicant made representations concerning her health conditions, and to her treatment for drug addiction. Representations were also made on behalf of the Applicant by her legal representatives concerning her need for ongoing medical, psychological and family support.
77 In her Form, the Applicant stated in response to a question about impediments if she was returned to the United Kingdom that she has diagnosed medical and psychological conditions including anxiety, depression, post-traumatic stress disorder (PTSD), diabetes, high blood pressure and high cholesterol. She further stated that she requires medication for her conditions including methadone for her heroin addiction; efexor for her anxiety, depression and PTSD; and metphormin and novarapid insulin for her diabetes.
78 The Minister’s Reasons at [38] acknowledge the Applicant’s medical, mental health and social welfare needs, stating “She has advised that she suffers from anxiety, depression, post-traumatic stress disorder, diabetes, high blood pressure and high cholesterol and takes medication for all these conditions. She also takes methadone to assist with her heroin addiction. In her current submission her lawyers argues that her mental health would deteriorate if removed from Australia potentially to a degree whereby she may be of harm to herself...”
79 The contending submissions in relation to Ground 2 concerned the question of whether the Minister was required to have evidence for the findings broadly summarised above, or whether those findings may be founded upon common knowledge, sometimes referred to as general knowledge, of the relevant health and social welfare services available in the United Kingdom. The Applicant submitted that evidence was required, not only in relation to the high level summary of the findings referred to in the Minister’s submissions, but also for the specific representations made by the Applicant concerning her medical and social welfare needs.
80 In his written submissions at [46], the Minister accepted that finding (1) as defined above was a critical step in the Minister’s Reasons and was not merely a provisional finding that services “may” be available. The Minister submitted that the finding was capable of being supported as a matter of common knowledge.
81 This debate raises the question of when so called ‘common knowledge’ will suffice and when a more tutored opinion is required, including if necessary an investigation of the relevant facts. In her written submissions at [53], the Applicant submitted that there is no statutory provision, nor general rule that entitles the Minister to inform himself by reference to common knowledge.
82 In my view, whether common knowledge is sufficient is affected by a number of factors, including by the specificity of the asserted fact, or subject matter, imbedded in the representation. If, hypothetically, there were a representation about a particular town in the United Kingdom to the effect that it lacked adequate drug rehabilitation services, assuming such services were necessary for the person concerned, it would be doubtful that the common knowledge of the decision-maker would encompass such detail. While a minister’s, or other administrative decision-maker’s, knowledge may encompass an appreciation of certain characteristics of the United Kingdom, at the very least that it is a constitutional democracy with a highly developed economy, it could not be assumed to also encompass knowledge of the availability of drug rehabilitation services in a particular town.
83 The question of whether a minister, or other administrative decision-maker, should descend to a level of detail more specific than what may be objectively expected to be part of his or her common knowledge, is not susceptible to any general rule. In Navoto v Minister for Home Affairs [2019] FCAFC 135 the Full Court of this Court (at [78]) said:
… it is unlikely that a precise test may be formulated to prescribe the circumstances in which an administrative decision-maker may rely on general knowledge or accumulated specialist knowledge: see Dekker v Medical Board of Australia [2014] WASCA 216 at [63] per Martin CJ, Newnes and Murphy JJA. That issue, where it arises, is likely to be determined by reference to all the circumstances of the case, including, amongst other factors, the nature of the decision-maker, the extent and character of the decision-maker’s specialisation, and the form of the particular knowledge relied upon by the decision-maker.
It was unnecessary in Navoto for the Court to determine whether the decision-maker, the Assistant Minister, could rely upon common knowledge or his accumulated specialist knowledge about the availability and appropriate treatment for depression and anxiety in Fiji.
84 Whether a decision-maker should descend to such detail in order to properly consider the representations of an applicant, in my view, depends on all the relevant circumstances of the applicant, the nature and specificity of his or her representations and to what may reasonably be expected to be within the common knowledge of a reasonably well informed decision-maker in relation to the country concerned. I agree with the view expressed in Navoto that the question of when common knowledge may or may not be sufficient is not susceptible to a precise test or formulation. I also agree that the factors identified in Navoto extracted above may have a bearing on the question of whether common knowledge is sufficient.
85 Within the notion of common knowledge is its counterpart, ‘common sense’. Common sense teaches us that there are limits to common knowledge. Those limits are affected by the factual questions that emerge from the representations made by an applicant, especially in relation to the level of particularity, as well as, potentially, the nature of the subject matter. If the factual questions that emerge from the representations made by an applicant concern a matter that may only be understood with the benefit of some expertise in a specialist area, common knowledge may not suffice. Likewise, if the question concerns the particular, or perhaps even idiosyncratic, circumstances that apply in a particular place, or if it pertains to the unique practices of a particular ethnic group or religious sect, common knowledge may not suffice. Thus whether common knowledge is a sufficient foundation depends to a significant extent on the factual questions posed by the representation.
86 Whether common knowledge will suffice must also be affected by the quality of the common knowledge. If, for example, the so called common knowledge is not knowledge at all, but rather a common or shared prejudice about a particular matter – be it as to religious belief, ethnic origin, gender, whatever the object of the prejudice may be, that is not common knowledge. And if the so called common knowledge is not knowledge at all but the product of gossip or of vilification, that too is not common knowledge. In other words, the veracity of the common knowledge is relevant.
87 In a case such as the present, whether the imbedded factual questions may be adequately considered based upon common knowledge rather than any special knowledge, or particular investigations or inquiries, may also depend on the country to which the applicant is to be deported. In her written submissions at [54], the Applicant referred to a body of authority concerning what may be described as the assumed common knowledge of administrative decision-makers concerning the characteristics of the public health and social welfare system in New Zealand: Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [69] (Robertson J); McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [35]-[37] (McKerracher J); Hands v Minister for Immigration and Border Protection [2018] FCA 662 at [38] (Griffiths J); ZGWQ v Minister for Home Affairs [2019] FCA 1096 (Robertson J); Vaokakala v Minister for Home Affairs [2019] FCA 1979 at [34] (Burley J).
88 To varying degrees, those authorities accepted the veracity of common knowledge about relevant aspects of the New Zealand public health and social welfare system. The Applicant at [54] sought to distinguish those authorities on the basis that “[e]ach case concerned New Zealand specifically, and did not involve specific representations made about accessing specific services for particular needs.” In the Applicant’s submission the two distinguishing features in relation to what she described as “the New Zealand line of authority” were the country concerned and the level of particularity of the representations. The Applicant relied upon Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162 in which it was held at [36] to [39] that the Assistant Minister erred by finding that “the United States has a government welfare system that offers a level of support broadly comparable to that available in Australia.” There was no evidence that the two systems were comparable and the New Zealand line of authority was expressly rejected as not relevant.
89 The Applicant’s contentions in relation to the adequacy of common knowledge concerning the representations she made about the consequences for her of deportation to the United Kingdom are summarised in her written submissions at [57] and [58] as follows:
In the present case, the Minister was responding to representations about specific harms Ms Webb would face. The Minister’s finding that Ms Webb will or would have access to welfare services and that those services would be comparable to those in Australia were used as counterpoints to each of the representations Ms Webb made as to the impediments she would face if returned to the United Kingdom (see Reasons at [38], [39] and [41]). However, the Minister had no evidence about the actual availability of welfare services in the United Kingdom such as the type of benefit (or benefits), the amount of that benefit, the terms and conditions of that benefit, the eligibility criteria for that benefit or any waiting periods for benefits. Nor did he have evidence about the nature of the benefit in order to make a qualitative assessment as to the comparability of services between the United Kingdom and Australia. Indeed, the expression used by the Minister at [41] is almost identical in terms to the phrase found to have led the Assistant Minister into error in Schmidt.
The Minister was not entitled to rely on broad statements about the welfare system that may exist in the United Kingdom. These findings were critical to the exercise of the discretion under s 501CA(4). It is submitted that the Minister’s findings in the absence of evidence amounts to a jurisdictional error.
90 The Minister relied on the New Zealand line of authority, including Uelese at [24] and McLachlan at [34]-[35]. The Minister submitted (at [48] of his written submissions) that: “As a matter of principle, the result in these cases cannot be confined to New Zealand. Instead, the relevant question is whether the state of the country’s health and welfare system is legitimately a matter of common knowledge.” The Minister noted that it was not necessary to rule on this argument in Anaki v Minister for Immigration [2018] FCA 77 at [24]-[25] (Burley J) or in Navoto at [74]-[75].
91 The Minister also submitted (at [48] of his submissions) that an administrative decision-maker does not require evidence for matters of common knowledge, nor evidence for matters of common knowledge akin to matters to which judicial notice may be taken under s 144 of the Evidence Act 1995 (Cth): see, e.g. Secretary, Department of Family and Community Services v Verney [2000] FCA 570; 60 ALD 737 at [39] (Cooper J); Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304 at [125] (Payne JA, with Emmett AJA agreeing on this ground); Parramatta City Council v Hale (1982) 47 LGRA 319 at 346 (Moffit P); Republic of Nauru v WET040 (No 2) [2018] HCA 60 at [29] and [35]. The Minister referred to Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] where the Full Court concluded that the Minister had no legal duty to make inquiries about whether the appellant would not be entitled to social and housing welfare.
92 The Minister submitted that it is common knowledge that the United Kingdom is a first world country with a functioning health system. Accordingly, the Minister submitted that there was no error in finding (1) referred to above, namely that the Applicant would have the same access to medical services and social welfare as other citizens of the United Kingdom.
93 There is an anterior question as to whether the Minister is under a duty to inquire as to specific facts or matters arising from the representation, beyond the level of knowledge afforded by assumed common knowledge. This anterior question is likewise not susceptible to a rule of general application. Rather, in my view, it depends in part, at least, on the gravity of the consequences as represented and the veracity of the representations themselves. The Minister is required to give proper consideration to the representation, but as I have said above at [63]-[69] concerning the claims on behalf of the Applicant’s children in relation to intergenerational trauma, the Minister is not required to give credence to representations that are patently untenable. If, however, the representation is plausible and supported by the objective circumstances of the applicant, or by other credible evidence, a minister, or other decision-maker, may not be able to discharge his or her duty without ascertaining, by some credible means, the facts necessary to properly consider the representation, or to be satisfied when considering the representation at the level of understanding attained when common knowledge of the general subject matter is exhausted.
94 The Applicant did not put Ground 2 on the basis that it was legally unreasonable for the Minister to refuse her application without considering her representations beyond a level informed by common knowledge alone. Accordingly I have not considered Ground 2 on that basis. However, I note that the concept of legal unreasonableness has an inherent bearing on the question of when a Minister may be required to go beyond the limits of common knowledge and address representations more substantively than common knowledge allows. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1; 329 ALR 491 at [9]-[13] Allsop CJ (with whom Wigney J agreed) said:
The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
This concept of legal unreasonableness is not amenable to minute and rigidly‑defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of [Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332] in the judgment of Hayne, Kiefel and Bell JJ contained two (different) “tests”: (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality’s discussion of unreasonableness at [63]‑[76] in Li should be read as a whole – as a discussion of the sources and lineage of the concept: [64]‑[65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68]‑[71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76].
The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
(Emphasis added)
95 It is unnecessary to say anything further about the concept of legal unreasonableness in relation to Ground 2, but the passage quoted above is relevant to Ground 4 and to the inescapable overlap between each of the Grounds. I shall return to the inter relationship between each of the grounds relied upon by the Applicant below.
96 A further element to the question of whether common knowledge may suffice concerns the object of the common knowledge. When the matter for decision concerns the deportation of an applicant, common knowledge about the country to which the applicant is to be deported may put some countries in a different position to others so far as reliance upon common knowledge is concerned. In this respect it is important to distinguish between common knowledge and what is often described as ‘country information’. The latter is a body of special knowledge about particular attributes or circumstances prevailing in a particular country. Reliance on country information is a separate matter that does not arise in the present application.
97 It is conceivable that common knowledge about one country compared to another is more “common” or widely understood. There are a range of possible reasons for this, including differing geographic or regional proximity, historical ties, cultural, religious and ethnic ties, political systems and so on.
98 Given the historic ties between Australia and the United Kingdom, if common knowledge is a sufficient basis for findings concerning the availability of public health and welfare in New Zealand, it would be surprising if common knowledge would not be equally valid for like characteristics in relation to the United Kingdom.
99 I agree with the Minister’s submission that common knowledge is a sufficient basis for the Minister’s finding (1) as referred to above, namely that the Applicant would have the same access to medical services and social welfare as other citizens of the United Kingdom.
100 I also agree that common knowledge is a sufficient basis for finding (2), namely that the standards of health care, education, social welfare and housing support in the United Kingdom would be “comparable” to those in Australia. Given that conclusion it is unnecessary for me to decide whether finding (2) was a critical step in the Minister’s Reasons, whether the Minister is required to make a comparison between Australia’s health and welfare system and the health and welfare system in the country to which the person is to be removed, or to the effect of Direction No 79. See ZGWQ v Minister for Home Affairs [2019] FCA 1096 at [11].
Conclusion – Ground 2
101 For the above reasons Ground 2 is not established.
Ground 3
102 While common knowledge in this case provides an adequate basis for findings (1) and (2) as defined in the Minister’s submissions, in my view, the Minister’s satisfaction with reaching such high level conclusions was not sufficient, without more, to have properly considered the Applicant’s representations concerning her particular vulnerabilities if removed to the United Kingdom.
103 In circumstances where the Applicant’s representations concerning her health and social welfare needs were objectively plausible and where the consequences of her removal to the United Kingdom are extremely serious, the Applicant’s representations were not properly considered on the basis of common knowledge alone and at the relatively abstract level defined in the Minister’s submissions or his Reasons.
104 The particulars to Ground 3 are in effect the consequences that the Applicant alleges follow from the failure of the Minister to seek information for the purpose of considering her representations, beyond that which was available at an abstract level on the basis of common knowledge. The Applicant particularises the respects in which the Minister failed to properly consider her representations. To a significant degree, those particulars are counterparts to the particulars under Ground 2 concerning the specific information that the Applicant claims the Minister should have sought.
105 When considering whether the Minister gave proper consideration to the representations it is not necessary to posit a prescriptive counterfactual concerning the matters the Minister should have considered and the information he should have obtained. That is not to say that in applications of this nature the Applicant should not posit such a counterfactual. Rather, it is simply to say that the question of whether the Minister properly considered the Applicant’s representations does not depend upon whether the Applicant’s posited inquiries or evaluations are accepted. For these reasons it is unnecessary to say anything further about the contending submissions as to the particular matters the Minister should have considered. However, I have concluded that the Minister has not demonstrated in his Reasons that he has properly and genuinely engaged with the Applicant's representations, nor demonstrated that he has properly considered those representations against the objective background that the applicant came to Australia at two years of age and in the context of her vulnerability encapsulated in her representations extracted at paragraph [71] above. In my view, in all of the circumstances more was required of the Minister beyond finding at a relatively abstract level that the Applicant would have access to medical and social welfare services consistent with the access to such services by citizens of the United Kingdom and that such services are comparable to similar services available in Australia.
Conclusion – Ground 3
106 For the above reasons, Ground 3 is established.
Ground 4
107 By Ground 4 the Applicant contended that the Minister’s assessment of the risk of harm the Applicant posed to the Australian community was legally unreasonable. The Applicant relied in support on the principles set out in Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Stretton. In particular, the Applicant submitted, per Stretton, that the Minister’s decision was sufficiently lacking rational foundation. Allsop CJ said in Stretton at [11]:
… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.
108 The Applicant submitted that the reasoning process adopted by the Minister in reaching his decision does not bear rational connection to the evidentiary materials upon which he relied relying upon Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [70] (Mortimer J, with whom Moshinsky J agreed) and at [131] (Wheelahan J); Muggeridge at [36] and [55]; Nguyen v Minister for Immigration and Border Protection [2019] FCAFC 128.
109 Ground 4 was supported by particulars A to J as extracted above at [13]. Each particularises an integer of the Minister’s analysis relevant to his conclusion that the Applicant posed an unacceptable risk, which the Applicant contended was irrational, illogical and unreasonable in the legal sense. I set out below a summary of the Applicant’s and Minister’s submissions concerning the particulars to Ground 4.
Particulars A, B, C and J to Ground 4 – Seriousness of criminal history
110 Particulars A, B, C and J concerned the Minister’s conclusions regarding the seriousness of the Applicant’s criminal history. In essence, the Applicant submitted that the Minister unreasonably placed too much weight on her past violent offending as the basis for concluding that she was an unacceptable risk to the Australian community.
111 More specifically, the Applicant submitted that the Minister put undue weight on her conviction for manslaughter in 2002 and aggravated burglary and assault with a weapon in 2015 in coming to certain conclusions about her risk of re-offending. The Applicant contended that based on those crimes there was no rational foundation for the Minister to conclude that she had a “recidivistic nature” in respect of violent offences, that “the Australian community can’t be exposed to significant harm should Ms Webb reoffend in a similar fashion” and that she “must be considered to remain at risk of further offending … [which] could cause physical and/or psychological harm to a member or members of the Australian community.”
112 In his written submissions, the Minister submitted that:
In assessing the risk of this harm occurring, the Minister took into account the seriousness of her criminal history and its recidivistic nature in finding she remained at risk of future offending (Reasons [65]). This serious criminal history includes not only the Applicant’s violent offences (manslaughter in 2002 and aggravated burglary and assault in 2015), but all her other offences, including dishonesty offences. As noted, the Minister expressly took account of her entire offending in describing it as “very serious” (Reasons [51]).
113 The Minister submitted that he was not required to assess the risk of harm in a particular way or engage in a detailed evaluation of each individual aspect of a person's criminal history and balance the seriousness of each offence against factors supporting revocation. Further, the Minister submitted that he had considered the Applicant's criminal offending in its entirety and there is no error in that approach: BSJ16 v Minister for Immigration (2017) 252 FCR 82.
114 In BSJ16, Collier, Murphy And Burley JJ at [43]-[45] held:
The Minister is not under an obligation to evaluate in any particular way the risk of harm to the Australian community of the appellant reoffending…
…
In exercising the power conferred by s 501CA(4) the Minister was under no duty to evaluate the risk of harm to the Australian community in any particular way or to ascribe any particular characterisation to the quality of the risk: Moana 230 FCR 367 at [71]; Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 at [41]; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [44].
In this case, it is evident that the Minister concluded the appellant was a repeat offender, that the appellant’s offences were – at the very least – serious, and that there was a likelihood that the appellant would offend again causing harm to members of the Australian community. It was open to the Minister on the available material to form these views. In our view the criticisms of the appellant are not only without foundation, they invite the Court to construe the decision of the Minister with an eye keenly attuned to the perception of error. This is an invitation the Court should resist: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]-[31]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [23].
115 In relation to the manslaughter conviction, the Minister submitted (at [74]):
…the Minister was entitled to form his own view of the seriousness of the offence, on the facts as found by the courts. Specifically, the fact that the court sentenced the Applicant to a good behaviour bond did not prevent the Minister from concluding that the crime of killing a person is necessarily “very serious” (Reasons [46]). The Minister made that finding, fully cognisant of the exculpatory circumstances of the crime, and aware that the Applicant was not given a custodial sentence (Reasons [47], [48]). The Minister considered that the act of stabbing was unlawful, and a reasonable person would have realised that these acts expose a person the victim to the risk of death or serious bodily injury (Reasons [47]). That finding was open to the Minister.
…
The Minister could therefore have regard to this crime in assessing the seriousness of the Applicant’s criminal history in its entirety.
Particular D to Ground 4 – Non-compliance with judicial orders
116 Particular D concerned the Minister’s reliance on the Applicant’s convictions for breaches of judicial orders and non-custodial dispositions, where he had not considered material before him that explained why some of those breaches had occurred, and, in relation to other breaches, where there was no information about their nature and circumstance. In particular, the Minister did not refer to a Pre-sentence Report prepared by the Victorian Department of Justice, which explained that the Applicant was suffering grief and loss after experiencing being raped and the death of her partner, which “impacted her ability to comply with the conditions of the Community Corrections Order”.
117 The Minister submitted that the fact of a conviction for non-compliance with a court order is probative to an extent, even if there were reasons for non-compliance. He submitted, while there may be argument about the weight to be given to the Applicant’s non-compliance, it forms part of her entire criminal history and cannot be said to be entirely irrelevant. The Minister further submitted that the consideration of the non-compliance with the orders was secondary in nature and not dispositive to the decision and therefore any error would be immaterial.
Particulars E and F – The Applicant’s attitude to her offences
118 Particulars E and F concerned the Minister’s characterisation of the Applicant’s attitude about her offences. The Applicant submitted that by ignoring comments she made which explicitly accepted responsibility for her conduct it was unreasonable of the Minister to conclude that she blamed others and had not developed full insight into her offending behaviour.
119 The Minister submitted that:
This argument does no more than express emphatic disagreement with the Minister’s reasons, and does not suggest legal unreasonableness. The fact that the Applicant had elsewhere stated that she took full responsibility does not gainsay that she made a representation (at CB 128), attempting to explain why she had reoffended, which the Minister took as her blaming others for the reoffending: contra AS [101]. The Minister’s interpretation is certainly open.
Particulars G and H – The Applicant’s rehabilitation
120 Particulars G and H concerned the Minister’s findings that the Applicant “posed a risk to the community because her rehabilitative efforts in the past had not been effective and that she had not been able to test her rehabilitative efforts in the community” and that “the absence of opportunity to prove rehabilitation in the community could not provide a probative basis for the finding of unacceptable risk.” The Applicant submitted that her drug relapse and shop-stealing could not support a rational foundation for a conclusion that there is a probability she will reoffend in a manner that may cause physical or psychological harm and, further, that she was unable to demonstrate her rehabilitative efforts in the community as she was confined to immigration detention.
121 The Minister submitted that it was open to conclude that any drug related offending in the future may include crimes of violence in light of the Applicant’s criminal history as a whole, her violent crime in 2015 which the sentencing judge attributed to her drug dependency, and the fact that rehabilitation attempts following that offence had not stopped her from again using drugs and reoffending in 2018.
Particular I – Immigration Detention incident
122 Particular I concerned the Minister’s reliance on a statement given by an unnamed detention centre representative claiming the Applicant had pushed and verbally abused a detention centre officer to conclude that the conduct was “not consistent with her claimed rehabilitation”. The interview notes about the incident were not before the Minister, and the Applicant was not charged. The Minister conceded that his consideration of the incident was based solely on a report by the representative, but submitted that he was entitled to have regard to it and the violent nature of the claim. The Minister further submitted that, when reading the Reasons as a whole, it is evident this was a secondary matter and not material to the Minister’s decision.
Consideration – Ground 4
123 The ultimate question for the Minister was whether he should exercise his power under s 501CA(4) of the Act on the grounds that there was another reason why the original decision to cancel the Applicant’s visa should be revoked. The power given to the Minister under s 501CA is plainly discretionary. He may refuse to exercise his discretion in favour of an applicant for reasons which others, including the Court, may disagree. Such disagreement, however compelling the contending views may be, does not warrant the exercise of judicial power to quash the decision. In Stretton, Allsop CJ (at [21]) said:
The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion.
124 The exercise of discretion under s 501CA invariably requires an evaluation of competing factors weighing for and against its exercise in favour of an applicant. The Minister was faced with the evaluative task of deciding whether the respective weight to be given to competing considerations led to a conclusion in favour of the Applicant, or to the opposite. The balance may be excruciatingly fine, as was the case in Stretton and is the case in the present application. In the present case it is apt to describe the balance, in the words of Rohinton Mistry, as: “a fine balance between hope and despair.” (See Rohinton Mistry: A Fine Balance, Faber & Faber 1995).
125 The Minister was faced with an invidious choice between allowing the Applicant to be deported to the United Kingdom while her five children remain in Australia, against the background of the Applicant not having left Australia since she arrived here as a small child at two years of age, or revoking the cancellation of her visa, thus allowing her to remain in Australia against a background of the Applicant having committed a number of serious criminal offences and having been the beneficiary of the first revocation. It is not for the Court to make an evaluation between these competing forces. It is for the Minister to determine what is necessary for the protection of the Australian community, not for the Court to do so.
126 I say with respect to counsel for both parties that having reflected on their submissions concerning Ground 4, in my opinion the question of whether the Minister’s decision was legally unreasonable does not depend upon a textual dissection of his Reasons to the level of granularity advanced in submissions. Further, it is difficult when considering the critique of the Minister’s Reasons at the level advanced in submissions not to fall into the error of arrogating to the Court the evaluative task of considering the various factors, alone, in combination, or as counterpoints, in the ultimate balancing exercise. For these reasons, taking into account the submissions on Ground 4, I propose instead to express my own reasons for concluding that this Ground is established, rather than considering seriatim the contending submissions of the Applicant and Minister.
127 As I have said, it is not for the Court to make its own evaluation of the competing factors that weigh in the balance when determining if the Applicant posed an unacceptable risk of harm to the Australian community. But the Court is entitled, and required, to consider whether the Minister could reasonably come to the conclusion he did concerning the risk of harm to the Australian community balanced against the considerations in favour of granting the application to revoke the cancellation.
128 I have concluded that each of Grounds 1 and 3 are established for the reasons I have given and need not be repeated. As I have also said, in my opinion those Grounds are not independent of each other. Nor are they jointly or severally independent of Ground 4.
129 The evaluation by the Minister of risk of harm to the Australian community posed by the Applicant was not undertaken by him in a vacuum as to the countervailing considerations of the best interests of the children and the consequences for the Applicant were she to be removed to the United Kingdom. The Minister gave explicit consideration to those countervailing interests when considering the risk posed by the Applicant to the Australian community.
130 Needless to say, the interests of the children and the Applicant’s interests could not be rationally ignored in any credible and bona fide analysis of the risks of harm to the Australian community weighed in the balance against those interests. Although the Minister did not ignore the countervailing interests of the children and of the Applicant, it follows from what I have said concerning the Minister’s failure to explain properly his appreciation of what was encompassed by his conclusion about the best interests of the children, explained above in relation to Ground 1, that the question arises as to whether the Minister gave proper weight to the interests of the Applicant’s children. The same conclusion applies in relation to the weight the Minister gave to the consequences of deportation for the Applicant, for the reasons I have explained above in relation to Ground 3.
131 In my view it follows from the Minister’s failure to evaluate the interests of the children and the consequences for the Applicant, that the balancing exercise inherent in an evaluation of the risk of harm to the Australian community posed by the Applicant, and explicitly undertaken by the Minister, was not a rational and cogent balancing of risks to the Australian community against the likely consequences for the children and the Applicant, or at the very least, it is not clear from the Minister’s Reasons that the balancing analysis was rational and cogent.
132 In other words, a consequence of the Minister’s failure to give proper and genuine consideration to the best interests of the children and to the adverse consequences for the Applicant of being removed to the United Kingdom, undermined analytically his capacity to weigh those factors in favour of revoking the cancellation against his assessment of the risk posed by the Applicant to the Australian community. This consequence rendered the balancing exercise inherent in the Minister’s exercise of discretion analytically flawed. For this reason, I have concluded that the Minister could not reasonably come to the conclusion he did and accordingly his decision not to revoke the cancellation of the Applicant’s visa was legally unreasonable.
Conclusion – Ground 4
133 For the above reasons, Ground 4 is established.
Disposition
134 The application will be allowed with costs. The decision of the Minister made on 28 August 2019 will be set aside, and in lieu it will be ordered that constitutional writs in the nature of certiorari and mandamus be issued to the Minister.
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I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anastassiou. |
Associate:
