Federal Court of Australia

EZA20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1775

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Minister for Home Affairs dated 4 August 2020 not to revoke the mandatory cancellation of the applicant’s visa is quashed.

2.    A writ of mandamus is directed to the respondent requiring the respondent to determine whether to revoke the mandatory cancellation of the applicant’s visa according to law.

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

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The applicant seeks judicial review of a decision of the Minister for Home Affairs made on 4 August 2020. On that date, acting pursuant to s 501CA(4) of the Migration Act 1958 (Cth), the Minister declined to revoke an earlier decision of a delegate of the Minister (made pursuant to s 501(3A) of the Act) to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return visa.

2    The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was cited as the respondent to the application. The reason for this was not canvassed or explained. Nor was any issue taken with it. On that basis the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs is assumed to have accepted responsibility for the decision of the Minister of Home Affairs that is the subject of judicial review.

3    The applicant was assigned a pseudonym in order to protect the identity of his daughter against whom he committed sexual offences when she was a minor.

Background

4    The applicant was born in 1951 in Ireland. He is an Irish citizen. He arrived in Australia in 1971, aged 19 years. That means that he is presently 69 years of age and he has lived in Australia for 50 years. He said in his representations to the Minister to revoke the cancellation of his visa that he had intended to apply for Australian citizenship but never got around to it.

5    The applicant married his wife in 1998. His daughter, the victim of his offending, was born a few years later.

6    The applicant’s offending occurred between 2008 and 2013. He has no other criminal history.

7    The applicant was sentenced in the District Court of New South Wales in August 2018 after pleading guilty to a single charge of persistent sexual abuse of a child – an offence which carries a maximum penalty of 25 years imprisonment. He pleaded guilty and was sentenced on the basis of five “incidents” of sexual abuse of his daughter, noting that each “incident” involved many separate occasions of sexual conduct over differing periods of time. At the time of the offending, the applicant’s daughter was aged between 6 and 10 years.

8    The applicant was sentenced to an overall sentence of six years imprisonment with a non-parole period of three years and six months. His appeal against sentence was subsequently dismissed.

9    In December 2019, the applicant was advised that a delegate of the Minister had cancelled his visa pursuant to s 501(3A) of the Act on the basis that he had a substantial criminal record.

10    The applicant was invited to make representations to the Minister for consideration for revocation of the cancellation decision. The applicant made representations in January 2020.

11    On 4 August 2020, the Minister decided that he was not satisfied that the applicant passed the character test, and that he was not satisfied that there was another reason why the original decision should be revoked.

The statutory scheme

12    Section 501CA of the Act is relevantly in the following terms:

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

…

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

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

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

(ii)     particulars of the relevant information; and

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

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

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

(b)    the Minister is satisfied:

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

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

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

13    The criterion for the exercise of the Minister’s power to revoke a visa cancellation expressed in s 501CA(4)(a) of the Act, i.e., that the person makes representations in accordance with the invitation, is an objective jurisdictional fact: Ali v Minister for Home Affairs [2020] FCAFC 109; 380 ALR 393 at [40] per Collier, Reeves and Derrington JJ. That is to say, “the satisfaction of [the criterion] enlivens the exercise of the statutory power or discretion in question” and “[i]f the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker”: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; 236 CLR 120 at [43] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

14    In contrast, the matters in s 501CA(4)(b)(i) and (ii) are subjective jurisdictional facts. The question for a court on review is not whether they existed, but whether the Minister (or delegate) was satisfied that either existed: Ali at [41].

15    Finally in relation to the statutory scheme, s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 338 at [38] per North ACJ.

16    It was not in issue before the Minister that s 501CA(4)(a) was satisfied and that s 501CA(4)(b)(i) was not satisfied. The Minister’s decision accordingly focused on whether or not he was satisfied as to s 501CA(4)(b)(ii), i.e., whether there was another reason why the original decision should be revoked. The application for judicial review of the Minister’s decision was also directed to this issue.

The Minister’s decision

17    Having received a submission from the Department of Home Affairs on 9 July 2020, the Minister personally made the decision in question by signing the submission on 4 August 2020. There were a number of attachments to the Department’s submission to the Minister containing various forms of background information and a draft statement of reasons for the Minister. The Minister signed the draft statement of reasons without amending them.

18    The reasons state that the Minister considered the applicant’s representations and the documents that he submitted in support of his representations regarding why the original mandatory cancellation decision should be revoked. The reasons summarise those representations as including the following:

(1)    The applicant states that his offending was caused by “stupidity, selfishness, brain-dead madness.”

(2)    He acknowledges that he has committed a “shameful crime” which has had a devastating impact on his marriage, his family, and particularly his daughter.

(3)    He is seeking a chance for redemption and will die with the words “I am so sorry” on his lips.

(4)    He has very poor, and failing, eyesight as well as nerve pain in his back and legs.

(5)    He has completed various courses whilst in prison.

(6)    He has resided in Australia for some 50 years, and considers Australia to be his home.

(7)    He has been in productive employment for 45 years.

(8)    He has no ties to Ireland and would have no support there.

19    The Minister’s reasons canvass three principal considerations, namely the extent of impediments if the applicant is removed from Australia, the strength, nature and duration of the applicant’s ties in Australia, and the protection of the Australian community.

20    In respect of the extent of impediments if the applicant is removed from Australia, the reasons include the following:

(1)    The applicant’s health issues together with his age make it very unlikely that he would be able to find employment in Ireland.

(2)    Although the applicant submitted that he has “no home, no friends, no support” in Ireland and would be homeless, the sentencing remarks by the judge of the District Court stated that the applicant still had some support from his sisters in Ireland who were aware of his offending. On that basis, it is at least possible that the applicant will have some support should he return to live in Ireland.

(3)    The applicant’s removal from Australia will cause him emotional hardship due to separation from his daughter, his first ex-wife and his friends and the lack of family support in Ireland, although it is at least possible that the applicant would be able to renew his relationships with his siblings still living in Ireland. It is accepted that the applicant will experience hardship and difficulties, at least initially, in establishing himself in Ireland.

21    The reasons then contain the following two paragraphs, which are necessary to quote in their entirety because they form the subject of the applicant’s second ground of judicial review:

18.     Furthermore, I accept that he will undergo a period of adjustment due to his absence from Ireland for 50 years. However, as [the applicant] was born and raised in Ireland, and spend [sic] his formative years there, he would be familiar with the language and culture of his home country. Also, as Ireland is linguistically and culturally similar to Australia, and has comparable standards of health care, social and economic support, I consider that [the applicant] would be entitled to the same level of services as other citizens of Ireland in a similar position. Additionally, as Ireland is a member of the European Union (EU), he may also be entitled to an EU passport, and would have freedom of movement to reside and/or work in any other country that is member state of the EU.

19.     I find that [the applicant] would be able to settle in his home country without undue practical impediments, though I acknowledge that he will suffer some emotional hardship from the separation from his family.

22    In relation to the strength, nature and duration of the applicant’s ties to Australia, the reasons include the following:

(1)    The applicant has spent some 45 years in Australia contributing positively to the community by his employment and business activities.

(2)    The applicant’s immediate family in Australia consists only of his adult daughter whom he has not seen since his conviction and, accordingly, little weight is placed on the applicant’s family ties.

(3)    It is accepted that the applicant has other social ties in Australia evidenced by letters of support provided from his first ex-wife, several friends and the Catholic Prison Chaplaincy. The letters attest to the applicant’s otherwise good character prior to the commission of his offences, his commitment to change and reparations and the writers’ wish to continue to associate with him and support him in the full knowledge of his offending.

(4)    The applicant’s friends in Australia may experience some emotional hardship if he is removed to Ireland.

23    With regard to protection of the Australian community, the reasons first canvass the applicant’s criminal conduct and then the risk to the Australian community.

24    In respect of the applicant’s criminal conduct, the reasons include the following:

(1)    The circumstances of the offending were noted and then that, after many years, the applicant stopped offending against his daughter of his own accord, explaining that he did not want to pervert his daughter. The applicant told her, “We can’t do that anymore.” The applicant also apologised to his daughter for his actions.

(2)    Some months later, his daughter told her mother that she had been sexually abused by her father, which caused her mother to call the police.

(3)    It is noted that the sentence that the applicant received is an indication of the seriousness of the offending and that the crimes were committed against a vulnerable child victim in breach of parental trust. Accordingly, the offending was found to be “very serious”.

25    In relation to risk to the Australian community, the reasons include the following:

(1)    The applicant’s remorse and the recognition by him of the extreme foolishness of his behaviour are positive signs of his rehabilitation.

(2)    A psychological report referred to in the remarks on sentencing concludes that the applicant does not now suffer from any paedophilic disorder, probably partly as a result of his own experience of prosecution.

26    It is necessary to set out three paragraphs of the reasons because they form the basis for the first and third sub-grounds of the first ground of judicial review:

38.     The Judge also remarked that ‘there are no factors in his background he could identify as in any way being causally connected to the commission of these offences’ other than [the applicant] having a ‘disadvantaged background to some extent.’ Further, that [the applicant] never knew his father and his mother had other partners who were alcoholic and violent towards her in his presence. His mother was also frequently absent due to physical and mental health treatments and the report found that this experience might have been an underlying factor in [the applicant]’s taste for sadism and masochism. However, having made those observations the Court did not draw a direct link between them and [the applicant]’s criminal behaviour and I accept the court’s findings in this regard.

39.     I have had regard to [the applicant]’s statement that he has completed the ‘Mood Management Cognitive Behavioural Therapy Group’ whilst in prison and various other vocational and personal development courses. Whilst I acknowledge that a therapeutic course and personal development courses can assist [the applicant] on his path to rehabilitation, I do not regard these courses alone as being sufficient to address the causes of his offending, particularly without external therapeutic intervention and professional counselling.

40.     I note the remarks of the Court on [redacted] 2018, that [the applicant], prior to the commission of these offences, had no criminal history and could be regarded as a ‘person of prior good character.’ In addition, the fact that [the applicant] voluntarily ceased his offending in 2013 indicated that he has ‘good prospects of rehabilitation’. Whilst I agree that [the applicant]’s future prospects are good, I note that his rehabilitation is yet to be tested in the community.

27    Still in respect of the risk to the Australian community, the reasons go on to include the following:

(1)    The applicant’s remorse is acknowledged and it is considered that his contrition demonstrates insight into his offending.

(2)    It is accepted that the applicant’s offending was not of a violent nature, but it was of a sexual nature against a minor child. Therefore the non-violent nature of the offending does not in any way lessen the seriousness of the crime.

(3)    It is considered that remorse on its own, without therapeutic treatment, does not prevent recidivism.

(4)    Agreement is expressed with the psychological assessments that the applicant’s risk of reoffending is relatively low, but it cannot be concluded that there is no risk, particularly as the applicant still has unmet treatment needs.

(5)    It is noted that the court agreed that the applicant’s risk was “low” and his voluntary cessation of offending demonstrated his “desire” not to commit any further criminal offences, but they express a lack of satisfaction that the applicant poses no further risk to the community, particularly as one of the experts gave a more guarded assessment of “medium/low risk” of reoffending.

28    The reasons then contains the following paragraph:

47.     My concern remains that the factors that led to [the applicant]’s offending were not only unable to be clearly identified, but have not been fully addressed. If there were no underlying factors present, such as alcohol or substance abuse, and the foundation for [the applicant]’s offending appears to be his ‘long history of interest in bondage and discipline and sadism and macho sadism from a young age’ as noted by the Court, then I am not satisfied that these issues have been adequately addressed. Especially since the other possible causes mentioned by the Court, being his problematic upbringing, will not change in the future. None of these underlying causes of [the applicant]’s offending appear to have been sufficiently addressed at this stage.

29    The reasons conclude that there “is a risk, albeit a low risk, that [the applicant] will reoffend,” and that “even a low risk of this type of offending is not acceptable”.

30    Ultimately, the reasons conclude that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs any other considerations. On that basis, they express a lack of satisfaction that there is another reason why the original decision should be revoked.

The grounds of review

31    With the Minister’s consent, the applicant was given leave to file and rely on a further amended originating application which pleads the following grounds of review:

1.    The Respondent fell into jurisdictional error by acting unreasonably, or irrationally and/or illogically, when concluding that there was a “risk, albeit a low risk, that [the Applicant] will reoffend”.

Particulars:

(a)    The Respondent:

    a.    accepted that there were no direct causes of the offending;

b.    noted that the factors that led to the Applicant’s offending were not able to be clearly identified; and

c.    nonetheless, concluded that the Applicant’s failure to address his long history of interest in bondage and discipline and sadism and macho sadism from a young [age] meant that these issues had not been adequately addressed.

(b)    The Respondent did not consider the nature of the Applicant’s reoffending when concluding that there was a likelihood of reoffending;

   (c)    The Respondent accepted that:

a.    the Applicant’s offending had ceased in 2013; and

b.    there was no subsequent offending between that time and the Applicant’s imprisonment in 2016.

(d)    Notwithstanding, the Respondent concluded that the Applicant’s “rehabilitation is yet to be tested in the community”.

(e)    In the premises, the Respondent acted irrationally and/or illogically.

2.    The Respondent fell into jurisdictional error by making a finding, based on no evidence, that the Applicant would be entitled to comparable levels of health care, social and economic support in Ireland as he is in Australia.

Ground 1

32    As will become apparent, the outcome on ground 1 does not turn on any fine or nuanced view of illogicality or irrationality as a species of jurisdictional error. It is nevertheless just as well to identify the leading expression of this type of jurisdictional error by the High Court in order to provide an appropriate legal context for the discussion that follows.

33    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, Crennan and Bell JJ (at [130] and [135]) explained that the required level of illogicality or irrationality for it to amount to jurisdictional error must mean the decision is one at which no rational or logical decision maker could arrive on the same evidence; a decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. See also the judgment of Heydon J at [78] and [86] which is to similar effect.

34    Crennan and Bell JJ (at [131]) identified that the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

35    The applicant’s counsel identified three distinct elements of the pleaded irrationality of the Minister in review ground 1. They are that the Minister:

(1)    accepted that there were no direct causes of the offending, but nevertheless concluded that the applicant had not satisfactorily addressed the causes of his offending;

(2)    did not pay any regard to the specific nature of the applicant’s offending when concluding that there was a likelihood of reoffending; and

(3)    considered that the applicant had not tested his rehabilitation in the community, despite the applicant having been in the community for about three years after his last offending.

Element 1: the causes of offending

36    With respect to the first matter, it was submitted on behalf of the applicant that the Minister made two important observations. First, he accepted the findings of the District Court that there was no direct link between the applicant’s offending and his taste for sadism and masochism. Secondly, he noted that the factors that led to the applicant’s offending were not able to be clearly identified. Notwithstanding those findings, the Minister said that “if there were no underlying factors present, such as alcohol or substance abuse, and the foundation for [the applicant]’s offending appears to be his ‘long history of interest in bondage and discipline and sadism and macho sadism from a young age’ as noted by the Court, then I am not satisfied that these issues have been adequately addressed”.

37    The applicant’s criticisms arise principally from paragraphs [38] and [47] of the Minister’s reasons. Those paragraphs are quoted at [26] and [28] above. Relevant background to those paragraphs are the following remarks on sentence:

He has no underlying mental health, alcohol or drug factors that would impact upon his capacity to commit this type of offence. The foundation for it appears to be in the long history of interest in bondage and discipline and sadism and macho sadism from a young age. This would appear to be an underlying factor as set out in the facts in respect of these offences.

38    It is clear from the remarks on sentence that the sentencing judge regarded the applicant’s interest in what I will refer to as BDSM, i.e., bondage and discipline, dominance and submission, sadism and masochism, to be “an underlying factor” to his offending. The reference by the sentencing judge to “the facts in respect of these offences” shows that. It is unnecessary for present purposes to go into the details. The short point is that aspects of the offending included clearly identifiable elements of BDSM.

39    In those circumstances there was no illogicality or irrationality in the Minister saying that although the factors that led to the offending were not able to be “clearly identified”, the “foundation” for them appears to be the applicant’s long history of interest in BDSM and that those issues do not appear to have been adequately addressed. It cannot be said that a logical or rational or reasonable mind could not have come to that conclusion.

Element 2: the nature of the offending

40    As to the second matter, the applicant submitted that the Minister did not grapple with the specific circumstances behind the offending before considering the risk of reoffending – that is, the applicant’s offending was against his young daughter when she was in his care. It was submitted that the Minister did not consider that the context, circumstances and opportunity for the applicant to reoffend no longer existed in that his daughter had grown up and did not live with him. Also, it was submitted that the Minister did not make a finding that the applicant’s offending was likely to happen to any other person in the Australian community (for example, that there was a risk of the applicant committing similar offences against someone other than his daughter).

41    This criticism of the Minister’s reasoning essentially goes to his conclusion at [50] of his reasons that “there is a risk, albeit a low risk, that [the applicant] will reoffend” and that “Even a low risk of this type of offending is not acceptable”. The applicant’s point depends upon the characterisation of his offending as being sexual offending against his young daughter in his care, the opportunity for which no longer exists since his daughter has grown up and she is not in his care, rather than a broader characterisation such as sexual offending against minor girls. There is no reason why the narrower characterisation is the only rationally or logically available characterisation, and on the broader characterisation the Minister’s conclusion was open to him.

42    In the circumstances, the Minister’s conclusion with regard to the risk of the applicant reoffending cannot be characterised as illogical or irrational.

Element 3: the testing of rehabilitation

43    With respect to the third matter, the Minister considered that the applicant’s “rehabilitation is yet to be tested in the community”. It was submitted that that conclusion was made despite the Minister’s earlier findings that the applicant has not offended prior to or after the relevant offending, and an acceptance that the offending ceased in 2013 and the applicant was not arrested until 2016. There was accordingly a three-year period between the date of the applicant’s last offending and his detention in criminal custody. In that time, in which the applicant did not reoffend, the applicant remained in the community.

44    The submission by the applicant arises principally from paragraph [40] of the Minister’s reasons which is quoted at [26] above. That paragraph requires to be understood as following paragraph [39], also quoted above. In paragraph [39] the Minister refers to therapeutic and development courses undertaken by the applicant when he was serving his sentence and referred to by him in his representations to the Minister as assisting him on his path to rehabilitation. In my view, it is that rehabilitation that is referred to in paragraph [40]. That is, the Minister is to be understood as saying that the success of the courses, which took place after the applicant was taken into custody, in rehabilitating him has not been tested in the community. That is in any event a logically available reading of what the Minister is saying. In context, the reference is not necessarily to rehabilitation before the applicant was taken into custody, particularly given that earlier in his reasons (at [31]-[32]) the Minister acknowledged that there was a period of three years between 2013 and 2016 when the applicant was free in the community and did not offend.

45    In the circumstances, there is no illogicality or irrationality in the Minister’s statement that the applicant’s rehabilitation is yet to be tested in the community.

Conclusion on ground 1

46    It was submitted that, taken together, the above factors demonstrate that the Minister’s consideration of the risk of reoffending was tainted by irrationality and/or illogicality so as to constitute jurisdictional error. For the reasons that I have given, the submission cannot be accepted. Appeal ground 1 accordingly fails.

Ground 2

47    In respect of ground 2, the applicant contends that the Minister fell into jurisdictional error by making a critical finding, based on no evidence, that Ireland has comparable standards of healthcare, social and economic support, and that the applicant “would be entitled to the same level of services as other citizens of Ireland in a similar position”.

48    Counsel for the Minister quite correctly, and consistent with the Minister’s obligations as a model litigant, drew attention to a letter given in support of the applicant by one of his friends in which it was stated that if he is returned to Ireland the applicant “will not receive the Irish pension due to not working over there for long enough”. That is the closest that the applicant made a case in his submissions to the Minister that he would not receive social support, or adequate social support, in Ireland.

49    Ground 2 arises in relation to paragraphs [18] and [19] of the Minister’s reasons which are quoted at [21] above. In particular, it is this statement by the Minister that is said to not be supported by any evidence:

…, as Ireland is linguistically and culturally similar to Australia, and has comparable standards of healthcare, social and economic support, I consider that [the applicant] would be entitled to the same level of services as other citizens of Ireland in a similar position.

50    Read literally, the statement makes no sense because the second part of the statement which is said to flow from the first cannot logically flow from the first. That is to say, the fact (if it be a fact) that Ireland is linguistically and culturally similar to Australia and has comparable standards of healthcare and social and economic support does not support the conclusion in the second part of the statement that the applicant would be entitled to the same level of services as other citizens of Ireland in a similar position. Further, there is no indication of what is meant by “a similar position”. Does that refer to an unemployed 69-year-old, or an unemployed 69-year-old who has lived the last 50 years of his life in another country and not contributed to Irish social security, or some other combination of characteristics?

51    Read fairly, what the sentence can only be intended to convey is (1) that Ireland has comparable standards of healthcare and social and economic support as Australia, and (2) that the applicant will have the benefit of those services and support if returned to Ireland. It is only that reading of the statement which could support the Minister’s conclusion in the next paragraph that the applicant “would be able to settle in his home country without undue practical impediments.”

52    There was no evidence in the documents that served before the Minister to support either the finding in relation to comparable services or that the applicant would enjoy those services in Ireland. Indeed, in respect of the latter, as the Minister’s counsel rightly acknowledged, there was a statement in a letter submitted in support of the applicant that the applicant will not receive a pension in Ireland because he has not worked there “for long enough”. Whether or not that is correct as a matter of Irish law or practical reality was not canvassed in any of the documents before the Minister, with the result that the letter is the only “evidence” that was apparently available to the Minister on the subject. Certainly, given that the applicant has not lived in Ireland for some 50 years, it does not appear to be beyond the realm of reasonable possibility that the applicant will not receive a pension if he is returned to Ireland. Further, since he is in poor health and 69 years of age, and the Minister found that he will not be able to find work if he is returned to Ireland, whether or not he will receive a pension there is necessarily an important if not critical consideration in the assessment of what impediments he will face if he is returned to Ireland.

53    It was also part of the applicant’s submissions to the Minister that he would be rendered homeless if he was returned to Ireland where he would have “no home, no friends and no support”, as opposed to if he remained in Australia where he and a lifelong friend would establish a home together in a rural setting. The Minister’s findings with regard to comparable health care and social and economic support in Ireland are directly relevant to these submissions.

54    The Minister’s submission that the finding in relation to the social benefits that the applicant would receive in Ireland was not a substantial aspect of the Minister’s reasons and was not critical to his ultimate conclusion must be rejected. As identified above, there were three principal considerations to the Minister’s ultimate conclusion that there is no “other reason” to revoke the cancellation of the applicant’s visa. They were the extent of the impediments that would be faced by the applicant if he was removed to Ireland (no “undue practical impediments” although “some emotional hardship”), the strength, nature and duration of the applicant’s ties in Australia (45 years of positive contribution, little weight on family ties but several supporting friends who “may experience some emotional hardship”) and the protection of the Australian community (a low risk of reoffending which in respect of this type of offending is “not acceptable”).

55    In the concluding part of the Minister’s reasons, each of those considerations was taken into account and ultimately it was concluded that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs the other considerations which include “his lengthy residence and employment, and the hardship [he] and his social networks will endure in the event the original decision is not revoked”.

56    Understood in that way, the conclusion with regard to there being no “undue practical impediments” to the applicant returning to and living in Ireland was undoubtedly a central tenant of the Minister’s reasoning.

57    On behalf of the Minister, it was submitted that Parliament envisaged that the Minister would build up a body of knowledge relevant to the exercise of the decision vested in him and that that body of knowledge can reasonably be expected to include conditions in countries to which persons whose visas are cancelled may be returned. It was submitted that the Minister in this case, the Hon Peter Dutton MP, has been the Minister responsible for this portfolio since 2014, and there is good reason to think that he has developed experience from previous decisions involving returning former visa holders to Ireland.

58    There is authority to the effect that specialist decision makers or tribunals are entitled to rely on their expertise and accumulated knowledge garnered through repetitive decision making. For example, in Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 the relevant applicant in the High Court’s original jurisdiction sought judicial review of a decision of the Refugee Review Tribunal which in turn had conducted merits review of a decision of a delegate of the Minister. The particular factual issue at hand was whether the Indonesian authorities were willing and able to provide protection for Indonesians of ethnic Chinese background. Gleeson CJ observed (at [7]) that both the delegate and the Tribunal member were likely to have considered many cases involving conditions in, say, Indonesia and will have had access to official and other sources of information bearing upon political and social circumstances in an applicant’s country of origin. The Chief Justice further observed, “As is often the case with administrative decision-makers, they are likely to accumulate knowledge from the repetitive nature of the matters with which they deal”. His Honour later observed (at [12]) that the repetitive nature of the work of delegates and Tribunal members, the accumulation by them of a store of knowledge and experience, the availability to them of a kind of reference library, and the need to disclose their sources of information explain the identification of documents relied on by them in a broad and non-technical approach as “documents relevant to the position in Indonesia of Indonesian nationals of ethnic Chinese background and, also, to the ability and willingness of the Indonesian authorities to provide for their protection.”

59    McHugh J (at [112]) also identified that the Tribunal would have had available to it the same computer databases or libraries that the delegate had had access to. Hayne J (at [263]) observed that the Tribunal members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come. It may be that Tribunal members had heard accounts given to them by a series of applicants for protection visas who came from a particular country, and as those Tribunal members read more widely about the country concerned they developed body of knowledge upon which their views about the country was formed. As they become more knowledgeable their capacity comprehensively to identify the particular sources of their knowledge would ordinarily diminish.

60    Callinan J (at [300]) referred to a specialist tribunal accumulating specialist knowledge in the carrying out of its functions.

61    In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, Hayne J (at [180]) observed that a body like the Refugee Review Tribunal will bring to the task of deciding an individual’s application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. Such a body, unlike a court, is expected to build up “expertise” in matters such as country information. Often information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of pre-judgment.

62    As indicated, it was submitted on behalf of the Minister that “there is good reason to think that he has developed experience from previous decisions involving former visa holders to Ireland”. Three cases were cited as examples in support of the submission, namely Pennie v Minister for Home Affairs [2019] FCAFC 129; Minister for Immigration and Border Protection v Egan [2018] FCAFC 169; 261 FCR 451 and Hempenstall v Minister for Home Affairs [2020] FCA 686. It is not apparent from these cases that they concern decisions by the same person as Minister and there is no evidence before me to show that they do. Moreover, none of the cases shows that the Minister concerned had information before him or her with respect to the level and availability of social benefits in Ireland.

63    In Pennie the appellant’s complaint was that the Minister had not made findings on the appellant’s submissions with regard to his fears of homelessness, financial devastation, lack of medical care and unemployment if he was returned to Ireland: at [10]. That was rejected by the primary judge whose judgment was upheld by the Full Court on the basis that the appellant had not put forward evidence on these matters and the Minister had no obligation to research them himself: at [11]-[12]. All that the Minister had said on these matters was to note that Ireland has comparable standards of healthcare, social welfare and housing support to Australia: at [10]. There is nothing to indicate that the Minister had before him, or that he accessed, any information about social services in Ireland. The case therefore offers no support for the proposition that the Minister has knowledge about the entitlement to social benefits in Ireland beyond the broad statement that he made with regard to standards here and there being comparable.

64    Egan concerns the revocation of Australian citizenship. There is nothing in the judgment to indicate that the standard or availability of social benefits or services in Ireland was a matter for consideration. The issue at hand was whether it was contrary to the public interest for the respondent naturalised citizen to remain an Australian citizen. Although consideration was given to the person’s circumstances if they were returned to Ireland, that principally concerned the risk of them reoffending against children in Ireland as opposed to in Australia where they would be under the supervision of their bishop. The Tribunal’s error was in assuming that revocation of citizenship would necessarily entail being returned to Ireland. None of that is supportive of the Minister’s case before me.

65    Subsequent to the hearing in the present case judgment was delivered dismissing an appeal from the judgment in Hempenstall, viz. Hempenstall v Minister for Home Affairs [2020] FCAFC 216. The judgment at first instance reveals that there was contradictory information with regard to whether the applicant was from Ireland or the United Kingdom. It records that the Minister had found that on return to the United Kingdom the applicant would be able to access the same levels of medical, employment and social services available to other United Kingdom citizens: at [26]. Neither judgment indicates that the Minister had cause to give any consideration to the applicant’s entitlement to social services in Ireland.

66    Returning to the present case, there is also nothing in the Minister’s reasons or in the material that served before him, being the departmental submission and the attachments to the submission, which indicates that the Minister drew on accumulated knowledge in making the finding that he did about the applicant’s entitlement to social services in Ireland.

67    Finally on this aspect, I do not consider that the Minister is in an analogous position to the specialist tribunals gathering accumulated knowledge and developing a reference library as referred to in Muin and Jia Legeng discussed above. He is not a specialist of that nature and his decision making responsibilities cover a wide variety of matters.

68    In those circumstances, the Minister had before him no evidence and no discernible accumulated knowledge in relation to the important question on which he made a finding that was central to his ultimate reasoning. The question is then whether that amounts to jurisdictional error.

69    It is important to distinguish cases such as Pennie where it has been recognised that it is up to the applicant for revocation to put forward evidence in support of any submission that they make, including with regard to the difficulties that they will face if they are returned to another country. That principle certainly applies in the present case. However, the Minister did not reject the applicant’s submissions and that of his friend that he would face particular hardship if returned to Ireland in relation to homelessness and lack of access to a pension on the basis that they were unsupported by evidence. Instead, the Minister made a positive finding the effect of which is that the applicant will be entitled to the same level of healthcare and social and economic support in Ireland as would be available to him in Australia. There is no basis in the evidence before the Minister upon which that finding could have been made.

70    On behalf of the Minister, it was submitted that in order to demonstrate jurisdictional error, the applicant bears the onus of proving that the Minister did not have the specialist accumulated knowledge to permit him to make the findings. Reference was made to Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561 at 565 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 246 CLR 421 at [46]. It was submitted that the applicant had not discharged the burden, but I disagree. There is nothing inherent in the position of the Minister from which one would infer that he does have the requisite specialist accumulated knowledge in relation to the criteria for entitlement to social services in Ireland, and there is nothing before me to indicate that he does. Moreover, just what specialist accumulated knowledge the Minister has or relied on is peculiarly within his knowledge and he has failed to identify it. I therefore infer that he does not have the relevant accumulated knowledge.

71    It is important to draw a distinction between the two components to the Minister’s impugned finding. I do not consider there to be any difficulty for the Minister to make the general statement, or finding, that Ireland and Australia have comparable standards of healthcare and social and economic support. That statement can be made in relation to Australia and many western democracies based on general knowledge and, possibly, the Minister’s long experience in government including, I am prepared to assume, in dealing with other countries. It is the second component to the statement, namely that the applicant will be entitled to the same level of services as other citizens of Ireland that is the problematic one. The specific criteria for entitlement to social services can be technical and nuanced, and can certainly differ in material respects from one country to the next even where the standards of benefits or services are more generally comparable. As I have said, there was simply nothing before the Minister, or apparently available to him, on which he could make the finding that he did, and what was before him was to the contrary.

72    The parties identified that there are two views in the authorities as to the circumstances in which the making of a finding without evidence in support of it will amount to jurisdictional error. The one view is that a finding made with no evidence will only amount to jurisdictional error where the relevant finding is a “precondition to the exercise of jurisdiction”. The Minister favoured that approach. The other view is that a finding made with no evidence will amount to jurisdictional error where the finding is a “critical step” in the ultimate conclusion of the decision maker. The applicant favoured that approach. It does not appear that there is High Court authority that is determinative on this point. Certainly, none was drawn to my attention.

73    The different approaches were identified by the Full Court in Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 at [16] per Besanko J, [47] per Jessup J and [108] per Bromberg J. As in the present case, a state of satisfaction was required as a precondition to the exercise of the power in question. The requisite state of satisfaction was that the Full Bench of the Fair Work Commission be satisfied that it is in the public interest to grant permission to appeal from a decision of the Commission: at [33]. The finding for which it was contended that there was no evidence was that there was a particular “emerging trend” in decided cases of the Commission: at [42].

74    Besanko J held (at [16]) that the finding in respect of which it was said that there was no evidence was a precondition to the exercise of the power in question and that it was thus not necessary to choose between the two different approaches – the “precondition to the exercise of jurisdiction” approach being more stringent than the “critical step” approach. Jessup J identified (at [66]) existing Full Court authority that had recently held that to make a “critical” finding in the absence of evidence “may” amount to jurisdictional error, namely SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97; 187 FCR 109 at [125], Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85; 203 FCR 389 at [92] and Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 at [23]. Although his Honour (at [67]) entertained some reservations about both the reasoning and the outcomes in earlier authorities on which those authorities relied, namely SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 213; 77 ALD 402 at [19] and Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] and [13], on the basis that the Court had not been invited to consider the correctness of those judgments his Honour took the view that the Court was obliged to decide the case consistently with them. Bromberg J expressed (at [117]) the same reservations as Jessup J and reached the same conclusion that the case had to be decided consistently with the prior authorities.

75    Save for a first instance decision which apparently applied the “precondition to jurisdiction” approach, namely ZGWQ v Minister for Home Affairs [2019] FCA 1096 at [11] per Robertson J, the Minister did not refer to authority in support of that approach. I was not referred to any authority in support of any argument that the Full Court decisions referred to in Australian Postal are no longer good law, and Australian Postal did not itself reach that conclusion. It follows that I consider that I am bound to apply the “critical step” approach. Since, as I have explained, the finding in question for which there was no evidence was a critical step in the Minister’s reasoning to his ultimate conclusion, the Minister’s error amounts to jurisdictional error.

76    Counsel for the Minister drew attention to authorities of this Court that have held that the Minister does not always require specific evidence in order to make comparative assessments as to the availability of health and welfare services in foreign countries: Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [69] (in relation to a finding that “in New Zealand Mr Uelese would have access to government benefits similar to those available to him in Australia”); McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37] (in relation to a finding that “New Zealand … has comparable standards of health care, education and social welfare support [to Australia]” and “Mr McLachlan will have equal access to these as do other New Zealand citizens”); Webb v Minister for Home Affairs [2020] FCA 831 at [99]-[100] (in relation to findings that (1) Ms Webb 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”).

77    Counsel for the Minister nevertheless drew attention to the fact that in other cases the absence of specific evidence to support a finding has been held to involve error: Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144 at [42]-[46] (in relation to a finding that some welfare and healthcare services exist in American Samoa and Samoa and that Mr Viane and his family “will have equal access to welfare, healthcare and educational services as do American Samoans and Samoans in a similar position”); Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162; 162 ALD 495 at [34] (in relation to a finding that the United States has a government welfare system that offers a level of support “broadly comparable to that in Australia”). It follows that ground 2 should be allowed.

78    The apparently different conclusions in the different cases can be explained with reference to the differing facts and circumstances, and in particular what issues had been raised by the person seeking revocation of the cancellation of their visa and the specificity of the findings made. As I have indicated, it is the highly specific finding by the Minister that the applicant would be entitled to social services in Ireland in the same way as any other Irish citizen where exactly the contrary had been submitted to him that is the distinguishing feature of the present case.

Conclusion and costs

79    For the above reasons, the Minister’s decision should be quashed and a writ of mandamus should issue requiring the Minister to determine afresh whether to revoke the mandatory cancellation of the applicant’s visa according to law.

80    The parties were agreed that the costs should follow the result. Therefore, the Minister should pay the applicant’s costs.

Associate:

Dated:    11 December 2020