FEDERAL COURT OF AUSTRALIA

Walker v Minister for Home Affairs [2020] FCA 909

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the respondent made on 5 February 2020 to refuse to revoke the cancellation of the applicant’s visa be set aside.

2.    The applicant’s representation made under s 501CA(3)(b) of the Migration Act 1958 (Cth) that the cancellation of her visa be revoked be reconsidered by the respondent or his delegate according to law.

3.    The respondent pay the applicant’s costs of and incidental to this proceeding as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    The applicant, Ms Milan Walker, is a citizen of New Zealand. She is now 41 years of age. She has predominantly lived in Australia since she was 10 years of age, living and working on a special category temporary visa available under unique trans-Tasman arrangements reflective of the very close relationship between the two countries. All of her immediate family is in Australia, including her three adult children and one child who is still a minor. Her visa has been cancelled, and representations to have that cancellation revoked by the respondent, the Minister for Home Affairs, have not succeeded. Ms Walker challenges the Minister’s refusal to revoke her visa cancellation by way of judicial review.

Events leading to this proceeding

2    In September 2017, Ms Walker pleaded guilty in the Supreme Court of Queensland to charges of burglary, manslaughter and robbery in company. The offending conduct had taken place in October 2014. She was convicted and sentenced to imprisonment, taking into account time already spent in custody, with an overall non-parole period to expire in December 2018. In November 2017, her visa was cancelled under the mandatory cancellation provision in s 501(3A) of the Migration Act 1958 (Cth) (the Act). Upon being released on parole in December 2018, after serving a total of one year and nine months imprisonment, of which almost six months was time in custody pre-sentence, she went into immigration detention. She has remained there ever since. It is clear on the material accepted by the Minister that she was a model prisoner and has been a model detainee.

3    As required by s 501CA(3)(b) of the Act, Ms Walker was invited by the Minister to make representations about revocation of the visa cancellation decision. She made detailed representations to the Minister in accordance with that invitation. As a consequence, the Minister had a power under s 501CA(4), exercisable in person or by a delegate, to revoke the visa cancellation if he was satisfied either that Ms Walker passed the character test in s 501 of the Act, or there was “another reason” for doing so. It was never possible that she could pass the character test by reason of her September 2017 convictions and sentences.

4    On 5 February 2020, the Minister, making the decision in person, found that he was not satisfied that there was another reason to revoke the visa cancellation. As a consequence, Ms Walker’s visa remains cancelled, and she remains in immigration detention.

5    On 10 March 2020, Ms Walker filed an application for judicial review of the Minister’s decision. By leave granted, without objection by the Minister, she filed a further amended application, with three grounds as foreshadowed in written submissions. For the reasons that follow, the first of those grounds of review must succeed, but the other two grounds of review must fail.

The key relevant aspects of the Minister’s reasons

6    The aspects of the Minister’s reasons that give rise to the three judicial review issues raised in this Court substantially turn on the meaning to be given to the language used. In those circumstances, reproduction of key portions of those reasons, rather than a summary of them, is necessary in order understand and thereby resolve the competing interpretations.

7    Under the heading “Protecting the Australian Community”, the Minister’s reasons for his decision summarised Ms Walker’s October 2014 offending that gave rise to the September 2017 convictions and sentences as follows:

Criminal conduct

[62]    In considering the nature and seriousness of Ms WALKER's criminal offending, I note that violent offences are very serious.

[63]    Ms WALKER has been convicted of manslaughter. I have taken into account the circumstances of this violent offence as per the transcript of proceedings and sentencing remarks. The offence took place in October 2014 and led to the death of the victim, a Mr Gregory Hudson. Ms WALKER first met Mr Hudson on 21 October 2014 when he engaged her for sexual services at a brothel where she worked. On 22 October 2014, Mr Hudson returned to the brothel and again engaged the services of Ms WALKER. During this visit, he was observed to be ‘out of it’ apparently suffering from the effects of cocaine and/or alcohol. Later the same day, Mr Hudson told a business associate, Mr Grezlo, with whom he was staying, that he was arranging for Ms WALKER to visit the house and that he was going to pay for her services with cocaine. He ended up engaging the services of another sex worker, but continued to text Ms WALKER to arrange for her visit.

[64]    On the morning of 23 October 2014, neighbours witnessed Ms WALKER fleeing from the house in a distressed state. Mr Hudson was later found by Mr Grezlo in his home – dead, naked, face down on the floor and loosely bound with his arms behind him with a cord, which was attached to a computer mouse. The examining pathologist found, in particular, that he had lethal levels of cocaine in his blood and an enlarged heart and that these factors, if subjected to a triggering mechanism, could give rise to the cardiac arrhythmia that led to Mr Hudson’s death. The pathologist stated that the triggering mechanism ‘could have been physical or psychological’.

[65]    In sentencing Ms WALKER, Judge Martin noted that ‘the circumstances of this case have a number of unusual features’. He took into account the comments of the pathologist in relation to the ‘combination of matters’ that resulted in Mr Hudson's death and ultimately noted:

‘The defendant, Walker, accepts responsibility for the killing of Mr Hudson.

It is accepted that she, in the context of consensual, fetishistic sexual acts being engaged in to distract Hudson, caused his death; the manner and context in which he was consensually bound caused the triggering stressor ...’

[66]    I note that Ms WALKER has highlighted her lawyer’s submission in court that the ‘consensual sexual-type stressor was a triggering event but that is really the limit to it’.

[67]    I note that on 27 September 2017, Ms WALKER was also convicted of enter dwelling with intent and robbery in company. Prior to her visiting Mr Hudson, Ms WALKER and two associates had:

‘... entered into a plan which required Walker to distract and occupy Hudson in Grezlo’s house while the others stole property from within that house. It [was] also agreed that the plan anticipated the use of physical restraint and/or violence to Hudson if he was encountered by the two men or if he attempted to prevent them from stealing property’.

[68]    The two associates ended up stealing two laptops, bank cards and loose change, however the court found that no acts of violence were committed in relation to the actual robbery. Judge Martin noted that WALKER ‘pleaded guilty to all counts on the indictment’ but also stated that she ‘did not take any property that was stolen from the house, and it was not suggested that she would profit from the robbery’.

[69]    I note that Ms WALKER was held solely responsible for the offence of manslaughter, and the other two (male) defendants pleaded guilty to the burglary and robbery in company charges that were committed during the course of events that led to Mr Hudson’s death.

8    The Minister’s reasons then summarised information provided by Ms Walker in relation to her convictions, and summarised her characterisation of her conduct as follows (omitting reference to prior lesser convictions that did not play any significant role in the decision):

[71]    I find that the sentence Ms WALKER received is a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the above offending as serious.

[72]    Ms WALKER has acknowledged that she was charged with ‘very serious offences’ with ‘the main charge being manslaughter.’ She considers her crime ‘to be that of a serious nature’ and although ‘no women or children were harmed by any of the acts that occurred’, she acknowledges that the victim’s estranged daughter and his mother would have been ‘largely impacted by his unfortunate death.’

[73]    Ms WALKER highlights that while her manslaughter crime is of a violent nature, it was not ‘premeditated’ or ‘planned’, and she has no prior convictions for ‘acts of violence’. She states that when she attended Mr Hudson’s home, she ‘had no intentions what so ever of anything other than performing the acts in which he hired me to do’. She further states that she did not participate in ‘any acts of out of the ordinary requests made by customers’, that all acts were ‘consensual and at his demand’, and that nothing she performed was ‘that of an intentional act to harm him’.

…

[76]    Having considered all available information, I agree with the sentencing judge that the circumstances of the manslaughter case are somewhat unusual. I note that there were several factors at play when the victim passed away and that Ms WALKER did not intend to physically harm the victim. Notwithstanding, I find that Ms WALKER’s conduct was serious as her actions contributed to the death of a person.

9    The Minister considered the issue of risk to the Australian community through reoffending by Ms Walker, having regard to mitigation or causal factors, remorse, rehabilitation efforts and conduct in and out of custody. On the topic of mitigating or causal factors, the Minister’s reasons summarised the information highlighted by her about her past. In doing so, the comments the Minister made about the October 2014 offending only specifically addressed the manslaughter offence, as follows:

[79]    I note that the sentencing judge took into account that Ms WALKER was 35 years of age at the time of the manslaughter offence and that her prior criminal history ‘mostly’ included offences of fraud and dishonesty, ‘but none of violence’.

[80]    He noted that she had been involved in ‘a number of violent relationships’, from which her four children had resulted. He noted that following the breakdown of two of the relationships, she was ‘forced’ into prostitution as she saw that as the only way to be able to support her children, and it was during this time that she commenced using drugs and came into contact with her co-defendants.

[81]    Ms WALKER submits that at the time of the manslaughter offence, she was addicted to ICE and was taking prescription medication (Xanax) which she hid from her family. She states that she ‘was not in the right frame of mind’.

[82]    I find that her difficult relationships, relationship breakdowns, substance abuse and financial hardship were mitigating factors in Ms WALKER’s offending.

10    On the topic of remorse, the Minister’s reasons were as follows:

[97]    In relation to the manslaughter offence, Ms WALKER highlights her lawyer’s submission in court that she was ‘deeply remorseful for her involvement which led to the tragic death’ and that the death had ‘upset her greatly’ as evident in her distressed state when she fled the house.

[98]    Ms WALKER submits that ‘the guilt and remorse’ that she feels in regards to the victim’s death will stay with her for the rest of her life, and has put her life and everything she cares about into perspective. She states:

‘The Forensic Reports blatantly indicate the excessive levels of basically every illegal and prescribed drug there is available in [Mr Hudson’s] blood. These levels also indicate consistent long-term drug abuse, which obviously contributed to Mr Hudson’s over consumption, and therefore led to his death.

I Milan Walker, was working in a legal establishment and was called upon by Gregory Hudson for my services, to participate in sexual fetishistic fantasy acts, not to participate in manslaughter. It was sad and very, very unfortunate that Mr Hudson died during these acts, and for that I am very sorry.’

[99]    Ms WALKER highlights the prosecutor’s comments who stated that while her guilty plea for manslaughter was not ‘early’, it was ‘timely’ as it had ‘utilitarian value to the community in avoiding the expense of … a (second) ... trial’ and ‘also... to the family of Mr Hudson to have someone acknowledge their responsibility for their loved one’s death’.

[100]    I find that Ms WALKER has shown remorse and regret for her offending.

11    On the topic of rehabilitation, including conduct in prison and immigration detention, largely positive observations were made. However the Minister concluded:

[111]    I have given weight to the mitigating circumstances detailed by Ms WALKER in her representations and in the sentencing remarks, her remorse, the steps she has taken towards rehabilitation, her plans for the future, her supportive family, and the other supports she has for her release. Notwithstanding, I find that Ms WALKER’s rehabilitation has not yet been sufficiently tested in the community. While she has demonstrated good behaviour in prison and detention, I find that this does not fully represent her potential conduct in the Australian community. I find that if released into the Australian community, it is possible that Ms WALKER may find herself in a comparable situation where she re-offends. As such, I find there is a risk, albeit low, that Mr WALKER will re-offend, and I consider that further offending of a violent nature by Ms WALKER could result in serious physical harm to members of the Australian community.

(Emphasis added)

The phrase that is emphasised above makes it clear that the Minister understood that Ms Walker had not just committed an offence which was of a violent nature, as she had stated in her representations in relation to the manslaughter offence, but that her conduct in committing that offence was itself violent so as to be “offending of a violent nature”. That phrase and its meaning, including the offence or offences being referred to, are addressed below.

12    On the issue of whether there was another reason to revoke the visa cancellation, the Minister concluded as follows:

[115]    In considering, in light of Ms WALKER’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Ms WALKER’s minor child, [name redacted]. I found that their best interests would be served by the revocation of the original decision.

[116]    In addition, I have considered the length of time Ms WALKER has made a positive contribution to the Australian community (some 20 years), the consequences of non-revocation of the original decision for her other family members, and the extent of impediments that Ms WALKER would face if she were removed to New Zealand.

[117]    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the manslaughter crime committed by Ms WALKER, which is of a violent nature.

[118]    Further, I find that the Australian community could be exposed to significant harm should Ms WALKER reoffend in a similar fashion. I could not rule out the possibility of further offending by Ms WALKER.

[119]    I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Ms WALKER, than I otherwise would, because she has lived in Australia for most of her life. I have also considered her claims that she will face harm including being physically harmed or killed by her ex-partner if she returns to New Zealand, but as noted earlier, I am unable to make any finding in this regard without further substantiation of those claims.

[120]    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Ms WALKER represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of her child and other minor family members, as a primary consideration, and any other considerations as described above. These include her lengthy residence and ties, employment, volunteer/charity and familial to Australia, and the hardship Ms WALKER, her family and social networks will endure in the event the original decision is not revoked.

[121]    I am also mindful that Australia has a low tolerance of criminal conduct by persons holding a limited stay visa, reflecting that there should be no expectation that such people remain in Australia.

[122]    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 Ms WALKER’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 Ms WALKER’s Class TY Subclass 444 Special Category (Temporary) visa remains cancelled.

13    The Minister’s reasons contained no reference to the burglary and robbery in company offences to which Ms Walker pleaded guilty apart from the quote from the sentencing remarks at [65], [67] and [68], reproduced above at paragraph 7, and perhaps the general reference to remorse and regret at [100], reproduced above at paragraph 10. That is hardly surprising. While she facilitated those offences and was a party to planning them, and was thereby made criminally responsible for them, she did not carry out any acts in their furtherance beyond perhaps distracting the deceased to enable the burglary and robbery by her co-offenders. The aspect of the plan anticipating the use of physical restraint and/or violence to the deceased, apparently by the two co-accused, if the deceased encountered the two men or if he attempted to prevent them from stealing property, never arose.

Ground 1

14    This ground attacks the basis for the finding by the Minister at [120] of his reasons that Ms Walker represented an unacceptable risk of harm to the Australian community that outweighed the considerations found to favour revocation. The applicant submits that this risk assessment conclusion flowed from the findings made at [117] and [118], referring to her “manslaughter crime” as being of a “violent nature”, the significant harm to which the Australian community could be exposed should she “reoffend in a similar fashion”, and the finding that the Minister could not rule out the possibility of “further offending”, in turn being a reference to the finding at [111] of the possibility of “further offending of a violent nature”. For the reasons developed below, the language of the Minister’s reasons can be seen to shift subtly from the past manslaughter offence being violent in the sense of its outcome, to the feared future conduct – that is, future offending – being itself violent and such violence being the cause of a violent outcome.

15    At first blush, the Minister’s reasons might be seen to have a degree of inconsistency in language between [111], which refers to the possibility of Ms Walker finding herself in a “comparable situation”, and [117]-[118], which refer to the manslaughter offence and the possibility of her reoffending in a “similar fashion”. However, there is no such inconsistency once it is appreciated that the former is referring to a situation that might arise in the future comparable to that leading to the October 2014 offending, and the latter is referring to similar conduct occurring as a result of such a situation arising. The parties disagree on what the Minister should be understood to be referring to as a “comparable situation”, and a “similar fashion”, and thus the basis upon which the risk assessment described was carried out. It is necessary to resolve that dispute first in order to progress the resolution of the competing positions.

16    Ms Walker contends that the Minister’s risk assessment was conducted by reference only to the manslaughter offence. She argues that the way this assessment was done upon that basis was irrational and thereby legally unreasonable for the reasons discussed below. The Minister submits to the contrary that the Minister’s risk assessment was not confined to consideration of the manslaughter offence, but rather was conducted by reference to the overall offending, including the plan between Ms Walker and her co-offenders which had led to all three offences taking place in October 2014. The Minister therefore contends that the more natural reading of his reasons is that he found that there was a low risk that Ms Walker may find herself in a situation in which she again turns to drugs, comes into contact with people like her co-offenders, and therefore might reoffend in similar fashion involving theft and a plan which contemplated violence being inflicted upon the victim if such a theft was disturbed. On that argument, the manslaughter offence was almost irrelevant to the Minister’s risk assessment, implicitly acknowledging that the manslaughter offence was not carried out by any act of violence.

17    I am unable to accept the Minister’s interpretation of his reasons at this first critical threshold as to the basis of the risk assessment. As the extracts from the Minister’s reasons reproduced above make tolerably clear, his risk assessment was based on the manslaughter offence, not on the pre-existing plan of burglary and robbery which was mentioned only in passing and formed no part of the reasoning. Had the contingency aspect of the plan been acted upon, it might have resulted in force and or even violence in connection with the robbery. Restricting the risk assessment to the manslaughter offence was both sensible and appropriate because this contingency did not arise. Having regard to the unexecuted part of the plan would have involved predicting the future by reference to something that did not happen. Moreover, there was nothing to suggest that any such contemplated act of restraint or even violence would have been carried out by Ms Walker, whatever criminal responsibility she might have had on a common purpose basis for any such conduct by her co-offenders. There was simply nothing to suggest that Ms Walker herself had any history of, or propensity for, committing any act of violence.

18    The central burden of Ms Walker’s case, as refined and developed during the course of the hearing, is that it was not reasonably open to the Minister to hold that she had, by her prior conduct in committing the manslaughter offence, any propensity to engage in the future in “further offending of a violent nature”. She had not done so in the past, so that the use of the word “further” involved a fundamental misunderstanding or mischaracterisation of what had occurred. That is, the past violent outcome inadvertently produced by her conscious and deliberate, but non-violent, acts was not a rational or legally reasonable basis for predicting future violent conduct by her.

19    Put another way, the substance of Ms Walker’s argument is that her deliberate but non-violent conduct resulting in an inadvertent and violent outcome could not rationally support a finding of a risk of violent conduct by her leading to a future violent outcome, given that she had never engaged in violent conduct before. On this argument, the vice in the Minister’s reasons was the way in which use of the phrase “violent nature” changed in character from describing the violent outcome of Ms Walker’s conduct in accordance with her representation, to describing the nature of her conduct leading to that outcome as also being violent, which was not what she was saying and was not what she had done.

20    The distinction that Ms Walker seeks to draw is semantic, but it is not pedantic. That is because the careful characterisation of both acts and states of mind are vitally important parts of the criminal law in Australia. It is important for both criminal liability, and for sentencing. For sentencing, the proper assessment of the conduct and the state of mind is important to assess both the seriousness of the offence, and the risk of its recurrence. Differences in the nature of the act by which an offence is committed are often subtle and therefore can be difficult to understand, but they are fundamental. Such subtlety is well understood in the criminal law, especially the law of manslaughter which focuses on the outcome that took place and criminal liability for that outcome, rather than the outcome that was intended, as is the focus for murder. Manslaughter by definition is concerned with criminal responsibility for a death that was neither intended, nor the product of an alternative state of mind that would constitute murder, such as reckless indifference to human life.

21    All acts causing death are serious, but the criminal law must place them in a spectrum of both objective seriousness and risk of recurrence for the purpose of sentencing. Both murder and manslaughter constitute violent outcomes, but they can each result from a violent or a non-violent act. Sometimes a manslaughter committed by an act of violence will be more serious, and warrant a more severe sentence, than a murder committed without any act of violence.

22    The distinction between violent and non-violent acts is especially important for sentencing for the inherently violent offence of manslaughter. For obvious enough reasons, non-violent offending – that is, non-violent conduct leading to death – is ordinarily less serious and usually has a lower risk of recurring, and is therefore of less concern than violent offending. Violent offending causing death is not only usually a more serious manslaughter offence, often with a greater risk of recurrence, but may also cross the line into murder. Indeed a charge of murder gives the tribunal of fact, be it a judge or a jury, the option of a verdict of not guilty of murder, but guilty of manslaughter, most obviously applicable when violent conduct has taken place.

23    The manslaughter offence committed by Ms Walker was of an inherently violent nature because of the outcome of a premature death. But the conduct was not itself violent because the death was triggered at least in part by non-violent consensual sexual and related acts, including being loosely bound. The death did not occur because of any actual act of violence inflicted upon the deceased by Ms Walker. This was reflected in the relatively lenient sentences imposed following a very late guilty plea to this and the other two offences on what was to have been the first day of a jury trial.

24    The representation made by Ms Walker, reproduced in the Minister’s reasons at [73] (see paragraph 8 above), that the manslaughter offence was of a violent nature is therefore to be understood as referring to the nature of the outcome as being violent, rather than the nature of the conduct which led to that outcome as being violent. Put another way, her manslaughter offence was of a violent nature because of the resulting death, but her offending conduct leading to that result was not itself violent. It was an offence of a violent nature because of the outcome, but it was not offending of a violent nature. This also means that the Minister’s reference at [111] of his reasons to “further offending of a violent nature” (emphasis added) was erroneous in that it relied upon a recurrence of violent offending when that had never previously taken place.

25    I am satisfied that no amount of beneficial reading of the Minister’s reasons can avoid the conclusion that past non-violent conduct and its violent outcome has been used in error to find a risk of a repetition of violent conduct, when such violent conduct had not happened before. The error was caused by a confusion between the nature of the conduct and the nature of the outcome in the manslaughter offence. The reasoning of predicting the risk of a future event based upon a past event that did not occur is unavoidably irrational, and the decision made upon that basis is thereby legally unreasonable: see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [72]. Had a correct appreciation of what had happened been applied to the risk assessment, it readily could have made a difference. At the very least, a different factual foundation had to be relied upon to make a finding of a risk of future offending of a similar kind. The legally unreasonable decision therefore constitutes a jurisdictional error. It follows that ground 1 must be upheld.

Ground 2

26    Strictly speaking, consideration of this and the next ground is not necessary because of Ms Walker’s success on ground 1. However, as this judgment may not be the end of the litigation on this decision by the Minister, it is best to address briefly both ground 2 and ground 3.

27    Ground 2 turns on the reference at [121] of the Minister’s reasons to Ms Walker having held a “limited stay visa”. She contends that her temporary visa, which, absent cancellation, entitled her to remain in Australia indefinitely, rendered that description a jurisdictional error. The Minister counters by cascading submissions that the “limited stay visa” description was:

(1)    correct; or

(2)    if incorrect, was no more than a factual error; or

(3)    if a legal error, was an error within jurisdiction; or

(4)    if it was an error going to jurisdiction, the error was not material and could not realistically have produced a different result so as to be a jurisdictional error.

28    For the reasons that follow, the “limited stay visa” description was incorrect, and was a legal error, but was an error within jurisdiction. Even if it had been an error going to jurisdiction, it was not material in that it could not have made any difference to the result, so would not have amounted to a jurisdictional error.

29    In ordinary usage the phrase ‘limited stay visa’ refers to a visa that, at the outset, designates a limited period of time for which the bearer may remain in the issuing country. Thus, a visa granted for a period of 90 days is a limited stay visa because the duration of the stay that is authorised is limited to that duration. The description of Ms Walker’s temporary visa as a limited stay visa was incorrect. That is because so long as she remained in Australia, as she had for many years, and so long as she remained a New Zealand citizen, there being no suggestion of any basis for that to change, she was entitled to remain in Australia indefinitely. There was no limit on the duration of her stay. Her temporary visa was therefore not a limited stay visa.

30    The Minister argues that any error in this description was merely factual and did not involve any legal error. I disagree. A visa bestows a particular legal status on the person to whom it has been granted. To describe Ms Walker’s visa as only entitling her to remain in Australia for a limited period of time while holding the visa is a legally incorrect way to describe the entitlement bestowed. It incorrectly characterised her legal right to be in Australia as being for a limited duration, when she was legally entitled to be here for an unlimited duration so long as she held the visa. It is not to the point that the visa would cease to be held at all if she voluntarily left.

31    The Minister argues that any legal error in the description given to Ms Walker’s visa was an error within jurisdiction because it did not go to the basis of the power being exercised. I agree. I am unable to see how this legal error in the description of her visa went to the power being exercised, and thus the jurisdiction to exercise it. It had nothing to do with any aspect of the power in s 501CA(4) of the Migration Act. The erroneous and otiose words “limited stay” before the word “visa” made no difference that I can see to the power being exercised, or considered for exercise. It was a legal error in the exercise of jurisdiction, but it did not of itself go to jurisdiction. The legal error was therefore within jurisdiction.

32    Alternatively, even if the erroneous description of the temporary visa as a limited stay visa did in some way go to jurisdiction, I am unable to see how this error could possibly be material in the sense of realistically producing a different result. Had the Minister considered, correctly, that Ms Walker’s visa was not inherently time-limited in nature, but rather was temporary and of indefinite duration, the most that this might have done would be to remove from the Minister’s mind his stated consciousness of Australia’s low tolerance of criminal conduct by persons who were only allowed to stay here for a finite duration. This went to the evaluation of an aspect of protecting the Australian community, namely the Minister’s assessment of what the community would expect in terms of visa holders remaining in this country after engaging in criminal conduct. It affected that factual assessment, but in the context of the entirety of the Minister’s reasons for his decision and the basis of the power being exercised, the absence of such a consciousness could not have risen to the level of positively satisfying the Minister that there was another reason why the original decision should be revoked. It was no more than an additional reason for the conclusion already reached. There is no sound basis for concluding that the absence of the reference to the “limited stay visa” at [121] of the Minister’s reasons could possibly have made any difference, or that its presence in any way tipped the balance, or infected the balance that was otherwise reached.

33    It follows that this ground of review must fail.

Ground 3

34    This ground requires further parts of the Minister’s reasons to be reproduced and considered. As part of Ms Walker’s representations to the Minister, she wrote a number of letters and submissions. They relevantly included the following, with minor typographical errors corrected:

(1)    As part of a letter to the Minster, she stated:

I fell into a relationship with a gang member which led to me being hospitalised in Hamilton as he bashed me with a bat and I had to be hospitalised, he went to jail for this and I moved back to my family in Australia to get away from him as I thought he would kill me, I am still afraid to go back as he is out of jail and sending me back to New Zealand would put me in danger as I am afraid that he will harm me again.

(2)    As part of a further submission to the Minister she stated:

Also my family back in New Zealand is gang related and I am scared I will be harmed and fall back into the life of drugs and domestic relationships.

Also my ex boyfriend who lives there was jailed and I am afraid he will harm me also.

35    The Minister’s reasons said of those representations:

[24]    Ms WALKER states that she fears returning to New Zealand as it would put her in danger of being harmed, and possibly killed, by her ex-partner (a gang member) who had previously violently attacked her.

[25]    I have considered Ms WALKER’s claims about the danger she would face in New Zealand. However, without further substantiation of the claims I am unable to make any finding about the nature and seriousness of the harm and the likelihood of it eventuating should Ms WALKER return to New Zealand.

36    The Minister’s reasons then returned to those claims under the heading “International non-refoulement obligations” as follows:

[34]    As part of her representations seeking revocation of the original decision to cancel her visa, Ms WALKER submits that she will face harm if returned to New Zealand due to the risk of being physically harmed again by her ex-partner.

[35]    In so far as Ms WALKER’s claims may be characterised as giving rise to non-refoulement obligations, I note that Ms WALKER is able to make a valid application for a Protection visa. A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Any claim by Ms WALKER that she would be physically harmed by her ex-partner could be fully considered through the making of a Protection visa application.

[36]    Further, I am aware that the Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, a Ministerial direction has been given under s499 of the Act (Direction 75) which, among other things, requires that decision-makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referring the application for consideration under s501 of the Act.

[37]    I have also considered and taken into account the possibility that it may be the case that a Minister at that time personally considers Ms WALKER’s Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of Ms WALKER. However, such a situation would only arise in the unlikely event that a Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.

[38]    Moreover, I am mindful that Australia’s international non-refoulement obligations, which may potentially be engaged in the case of Ms WALKER, may not be fully encompassed by the protection obligations reflected in the visa criteria in s36(2). I am also mindful that the consideration of any non-refoulement obligations that may be owed to a person, as a relevant consideration in the exercise of the discretionary power in s501CA, is qualitatively different from the consideration of protection obligations in determining whether the person satisfies a Protection visa criterion.

[39]    Further, I am cognisant of the possibility that Ms WALKER may be refused a Protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria.

37    Those claims were also referred to in the Minister’s reasons at [119], reproduced above at paragraph 12. It is convenient to repeat the relevant sentence:

I have also considered her claims that she will face harm including being physically harmed or killed by her ex-partner if she returns to New Zealand, but as noted earlier, I am unable to make any finding in this regard without further substantiation of those claims.

38    In context, the Minister was saying that he could not make a finding in Ms Walker’s favour without her claims having been substantiated beyond assertion. Ms Walker contends that the Minister failed to make a finding on a significant representation.

39    The problem for Ms Walker is that I am unable to accept that the representation that she made meets the description of a “clearly articulated and substantial or significant representation”: see Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 at [39]. It had to have the qualities of being both clearly articulated, and either substantial or significant. It fell short of having that character because it was no more than a collateral or additional representation by bare assertion, evidently made to sound an alarm as to a possible consequence if the cancellation of her visa was not revoked. But it was not advanced in a way that was, of itself, clearly articulated, nor substantial or significant, in the sense of lending itself to any meaningful process of assessment or evaluation, notwithstanding the seriousness of the possible consequences adverted to.

40    Given the sparseness of this additional and collateral claim, and its lack of any detail or other substantiation, the Minister was entitled not to make any finding on this claim in Ms Walker’s favour. He could have simply dismissed the claim upon that basis. However, he chose instead to identify it as a possible basis for a protection visa application, implicitly upon the claims made being developed and established, not merely asserted, and noting, correctly, that this would not necessarily address Australia’s non-refoulement obligations. I can see no proper basis for requiring the Minister to do more in relation to the representation by reason of the way in which it was advanced.

41    It follows that this review ground must also fail.

Conclusion

42    As the jurisdictional error raised by ground 1 has been made good, the Minister’s decision must be set aside with costs. Ms Walker’s request to revoke her visa cancellation must be considered afresh, according to law.

Associate:

Dated:    30 June 2020