Federal Court of Australia

EBD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 334

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s decision be quashed.

2.    The Applicant’s application be remitted to the Respondent for determination according to law.

3.    The Respondent pay the Applicant’s costs as agreed, or in default of agreement as may be assessed.

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

REASONS FOR JUDGMENT

KERR J:

1    The Applicant was born in Iraq. He is an Assyrian Iraqi Christian. He arrived in Australia in 1997, aged 7, as the holder of a Refugee and Humanitarian (Class XB) visa (Refugee and Humanitarian Visa).

2    From 2004 the Applicant began to acquire a criminal record. In his later youth the Applicant fell in with and became a member of the “Notorious” gang which was known to law enforcement agencies in Australia to be an Outlaw Motor Cycle Gang (OMCG).

3    On 5 October 2012, shortly before he was to turn 23, the Applicant was convicted in the District Court of New South Wales of a number of serious offences. Some of those offences dated back to 2010. Convictions were entered for the following:

(1)    Recklessly wounds other whilst in company (two counts);

(2)    Attempt to commit offence – aggravated break and enter with dangerous weapon; and

(3)    Use unauthorised prohibited firearm.

In respect of those offences, Judge Sides sentenced the Applicant to an aggregate of five years imprisonment with a non-parole period of 34 months.

4    The Applicant was released on parole on 1 August 2014. The conditions of his parole included supervision, regular reporting and drug tests. They also required him to not associate with a member of an organised crime network. It is uncontentious that that term comprehended members of any bikie gang. It appears uncontentious that he complied satisfactorily with the drug testing and reporting conditions.

5    While in the community after his release on parole the Applicant met his partner. He has remained in a committed relationship with his partner since that time. His partner has visited him on Christmas Island while he has been in detention. She provided documents in support of his release.

6    One matter that assumes some significance in this proceeding is that while in the community after the Applicant’s release on parole (the date of which is not ascertainable from the materials before the Court) the NSW Parole Authority was informed that the Applicant had met with a member of an OMCG at Star City Casino. The Applicant’s explanation was that he knew he was not permitted to associate with “bikies with colours” but rather, the person he had met with had been, but was no longer a gang member. His explanation appears to have been accepted at least to the degree that his parole was not revoked. Instead he was given a written warning by a letter dated 27 February 2015 that any additional breach of the parole order may result in its revocation and his incarceration.

7    The materials before the Court again do not enable precise identification of the date but it appears uncontentious that at some time after February 2015, the Applicant was charged with two further criminal matters. Whether or not it was in consequence of that circumstance his parole was revoked is unclear (see Tribunal reasons at [30]-[31]). However it is uncontentious that after his having been at liberty in the community for some 9 months the Applicant was returned to prison.

8    It is also uncontentious that the two further charges he was facing were dismissed at the committal stage and again later, after the Applicant had been proceeded against on indictment, were “no-billed”. Both charges were formally dismissed in October 2016.

9    However prior to the discharge of those proceedings on 6 July 2015, the Applicant’s Refugee and Humanitarian Visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). His legal status thereupon became that of an unlawful non-citizen. Accordingly, when the Applicant was later discharged from custody, he was immediately taken into immigration detention. He has remained in immigration detention from that time.

10    The Applicant made representations to the Minister for Home Affairs (the Minister) seeking revocation of the decision to revoke his visa. On 25 May 2017 the Minister made a decision not to revoke the cancellation of the Applicant’s Refugee and Humanitarian Visa. The Applicant did not seek review of that decision. Instead, on 15 June 2017, as he was eligible to do, notwithstanding the revocation of that visa, the Applicant applied for a Protection (Class XA) visa (Protection Visa).

11    On 19 October 2017, a Delegate of the Minister (the Delegate), refused the Applicant’s Protection Visa application on the basis that the criterion in s 36(1C)(b) of the Migration Act had not been met. The Delegate’s reasons reveal that he was satisfied that the Applicant was both a refugee within the meaning of s 5H of the Migration Act and a non-citizen in respect of whom Australia had protection obligations. However, refusing his application, the Delegate concluded that the Applicant had been convicted by a final judgment of a particularly serious crime. The Delegate found that there were reasonable grounds to consider the Applicant to be to be a danger to Australia.

12    The Applicant sought review of the Delegate’s decision. On 3 October 2018 for reasons published as JRJZ and Minister for Home Affairs [2018] AATA 3687, the Administrative Appeals Tribunal (the Tribunal) constituted by Deputy President Rayment QC decided the Applicant’s review in his favour. The Tribunal recorded its formal decision as follows (the Tribunal decision):

The reviewable decision is set aside and remitted to the respondent for reconsideration with the direction that the applicant is not a danger to Australia.

13    The materials before the Court are silent as to the process that then followed but it appears uncontentious that upon remittal, the Applicant’s application for a Protection Visa was neither allocated to the Delegate who had earlier made the decision that the AAT had set aside nor to any other delegate. Instead his remitted application was placed before the Minister for the Minister’s personal attention and decision.

14    On 5 March 2019, the Minister gave notice to the Applicant of his intention to consider refusing the Applicant’s application for a Protection Visa under s 501(1) of the Migration Act. The Applicant was invited to respond to that notice. He did so. His response included a letter dated 17 March 2019 wherein the Applicant stated that after he left school in year 9, he found himself “hanging around with the wrong crowd”. He acknowledged that he had been involved in gangs and that he “will be the first to admit that I broke and abused the law”. He wrote “I want to show the Australian community I am a changed man and given the chance that my visa is granted I will prove it”. On his behalf it was submitted that he had committed the relevant criminal offences

…in his early twenties and has expressed deep remorse for his actions. It has been three years since [he] last used drugs. [he] has been offered a full-time job…[he] plans to marry his partner…and start a family…all of these factors reduce the likelihood of [him] relapsing into crime.

15    It is not in dispute that the Applicant also referred to the Tribunal’s decision in his representations and to it having concluded that he was not a danger to Australia.

16    On 12 October 2020, the Applicant was notified that on 8 October 2020 the Minister had refused to grant him a Protection Visa under s 501(1) of the Migration Act (the refusal decision). The Minister had concluded that the Applicant did not pass the character test as he has a substantial criminal record (s 501(6)(a) of the Migration Act), having been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Migration Act) – a proposition not in dispute. The Minister’s reasons reveal that notwithstanding his consideration of the representations the Applicant had made to him, he was not satisfied that there was another reason for him to justify him to exercise his discretion to grant the Protection Visa that had been sought.

17    It is uncontentious that essential to the Minister’s reasoning was his finding that there was an ongoing risk that the Applicant “will reoffend”. The Minister concluded that the Applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the countervailing considerations in the Applicant’s favour he had been apprised of and had taken into account.

18    On 4 November 2020, the Applicant filed an originating application seeking judicial review of the Minister’s refusal decision. In his application the Applicant seeks orders quashing the Minister’s decision and restraining him his officers, servants and agents from taking action upon or giving effect to the decision. He also seeks costs.

THE APPLICANT’S GROUNDS OF REVIEW

19    The Applicant relies on two proposed grounds of review which are (omitting particulars) as follows:

1.    In light of the findings of the [Administrative Appeals] Tribunal (which are treated as findings of the Minister pursuant to s 46(6) of the Administrative Appeals Tribunal act 1975 (Cth) (AAT Act) and/or the direction of the Tribunal made pursuant to s 43(1)1 of the AAT Act, the Minister was obliged to conclude that the Applicant was not a danger and/or risk to the Australian community. In failing to so find, the Minister committed jurisdictional error.

2.    The Minister failed to give proper, genuine and realistic consideration to the fact that the [Administrative Appeals] Tribunal had determined that the Applicant was not a danger and/or risk to the Australian community, and/or acted in a legally unreasonable way in failing to act consistently with and/or considering the Tribunal’s determination and/or failed to properly take into account a mandatory relevant consideration, and therefore committed jurisdictional error.

20    Those two grounds of review were not those the Applicant initially had advanced. At the hearing there was a preliminary skirmish about whether the Applicant ought to be granted leave to rely upon those grounds. Ultimately counsel for the Minister, Ms François, accepted that there was a sufficient explanation for their not having been originally advanced and the Minister was not prejudiced by their articulation in that form. Objection to their being relied upon was not pressed. On that basis I granted leave to the Applicant to rely on those two grounds and the application before the Court proceeded on that basis.

21    Omitting nuance, the contentions advanced by the Applicant were to the effect submitted for by his counsel, Mr Sullivan QC, at [3] of his written submissions:

The Minister’s decision was contrary to the direction and determination of the Tribunal, and therefore unlawful. The Minister was bound by the Tribunal’s direction and determination. In any event, even if the Minister was not formally bound by the Tribunal’s direction and determination, he failed to give the Tribunal’s decision the great weight which it undoubtedly deserved. As a result, the Minister’s decision should be quashed. As the Minister was bound by the finding that the applicant was not a risk to the Australian community, and that was the only basis upon which his Visa was refused by him, the only lawful outcome is that the application for a protection Visa be granted. A writ of mandamus must should therefore issue.

22    By contrast, again omitting nuance, Ms François submits that that analysis ought to be rejected as fundamentally unsound. Ms François submits that the sole binding effect of the Tribunal’s decision was to require the Minister to complete the task of determining the application which had been remitted to him by the Tribunal in conformity with the Tribunal’s directions – a duty which, she submits, the Minister had entirely and fully complied with simply by not putting in issue that the Applicant’s circumstances satisfied the criterion in s 36(1C).

23    Ms François submits that although their respective subject matters could be accepted to overlap, the tests provided for in s 36(1C) and s 501 of the Migration Act are legally distinct. For the purposes of s 501 neither the Tribunal’s reasons nor its direction were mandatory considerations. In so far as the Tribunal had made findings about the risk the Applicant might pose to the Australian community, once the Minister came to his consideration of s 501 the Tribunal’s decision and reasons were “just another piece of material before him” that the Minister was entitled to place such weight on as he thought fit. The Minister had given reasons at [43] explaining why he had discounted the Tribunal’s assessment: it was because, despite the Tribunal’s findings, the Minister had been of the view that the Applicant’s conduct “remains untested in the community”. No error was involved in that reasoning.

24    Additionally, Ms François submits that even if that analysis was wrong, the Court should proceed on the basis that the Tribunal had determined the Applicant’s review by applying a legally unsound and too strict test of what “danger” meant for the purposes of s 36(1C). For that reason the Minister had been entitled to determine the remitted application without having regard to or being bound by the Tribunal’s legally flawed reasoning.

THE STATUTORY AND FACTUAL CONTEXT IN WHICH THIS PROCEEDING IS TO BE DETERMINED

25    To facilitate analysis of the respective submissions advanced by the parties as I have referred to above it is appropriate first to set out the statutory provisions that as relevant to this proceeding and to identify in turn how in practice they were engaged with by the relevant decision makers.

26    It will be recalled that this proceeding involves an application for a Protection Visa that the Applicant had applied for on 15 June 2017. The criteria for the grant of such a visa are those provided for by s 36(1C) of the Migration Act as follows:

(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a) is a danger to Australia’s security; or

(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

27    It is uncontentious that upon the Applicant’s application being refused in reliance on the provisions of s 36(1C) the Applicant had a right to seek review of that decision in the Tribunal: see s 500(1)(c)(i) of the Migration Act.

28    Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides:

(1)     For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and:

(i) making a decision in substitution for the decision so set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

29    In undertaking its review the Tribunal was required to conduct a hearing. As the Delegate’s decision was reviewable pursuant to s 500(1)(c)(i) the ordinary procedural rules of the Tribunal were engaged. Counsel for the Minister had the right to test by cross-examination the evidence of the Applicant and the witnesses he called in support and to make submissions as to the law governing the determination of the proceeding.

30    There is no record before the Court beyond the reasons of the Tribunal as might reveal the detail of what transpired before the Tribunal but it is uncontentious that DP Rayment ultimately accepted the veracity and credit of the Applicant and the witnesses called on his behalf who had given evidence to the fact of his remorse and his fundamentally changed character. In consequence the Tribunal accepted that the Applicant no longer was the same person as had earlier committed the violent crimes he had been convicted for.

31    Notwithstanding that he applied the legal tests articulated by Deputy President Tamberlin QC in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 which on Ms François’s submission were too strict, DP Rayment concluded that the Applicant did not constitute a danger to Australia.

32    The Tribunal made a formal decision in terms set out at [11] above and published reasons for its decision.

33    Section 43(2B) of the AAT Act provided that the Tribunal’s written reasons were required to include its findings on material questions of fact and refer to the evidence or other material on which its findings are based.

34    In order that the parties submissions in this proceeding can be understood in context it is appropriate to set out in full the Tribunal’s reasoning as appears under the heading “IS THE APPLICANT A DANGER TO THE AUSTRALIAN COMMUNITY?”.

15.    On 30 November 2010, the applicant, then a relatively new member of an organised criminal network (‘the gang’), as part of a group of twelve persons, went to a Turkish café at Mount Druitt. Most of the twelve, including the applicant, were armed with baseball bats. Two victims were working there, one of whom was the treasurer of an outlaw motorcycle gang. That person was hit repeatedly with a baseball bat and punched by other members of the gang. The applicant hit him in the area of the ribs with his baseball bat. The offence at the café was committed by the gang for the purpose of retribution. The judge found that the injuries inflicted (which together did not amount to serious bodily harm, and could have been more serious) were quite calculated. The judge described the offences, involving as they did a joint criminal enterprise as mid-range offences. They carried a maximum penalty of ten years imprisonment (which the judge did not impose upon the applicant). The applicant did not plan or direct the offence, and participated as a follower rather than a leader.

16.    It was a serious crime, involving violence. Membership of an organised criminal network, and the following of the purposes of that network, and forming part of a group of twelve persons all armed with baseball bats, at the time of commission of the offence is a matter which in my opinion, elevates the seriousness of the offence, perhaps enough to turn the offence into a particularly serious crime.

17.    One matter which the statute leaves unclear is whether any distinction is intended between a very serious crime and a particularly serious crime. Is more than that the crime is very serious required? The consequence of failing to obtain a protection visa on complementary protection grounds follows if the decision-maker concludes both that the visa applicant has been convicted of a particularly serious crime and that he or she is a danger to the Australian community. Failing to obtain a protection visa, if complementary protection obligations are owed in respect of the applicant, it might have very serious consequences for the visa applicant. If the person is not (also) a danger to Australia, of course, the protection obligations will not be lost.

18.    I think that to ask whether something more than a very serious crime is involved, is an approach which may distract a decision-maker. Rather, I think, the decision-maker should simply ask himself or herself: was the crime one which was a particularly serious crime as one understands those words of ordinary English to be used? That question I would answer in the affirmative.

19.    The other crimes for which the applicant was sentenced by Judge Sides were committed on 21 February 2011, and included an offence of attempted specially aggravated break and enter with intent to intimidate, committed at a home with three others at Mount Druitt. The applicant was armed with a knife on this occasion, and one person with him was armed with a shotgun, and another with a revolver. The home invasion was unsuccessful, apparently because a gun was discharged, I gather by a person inside the home. In other words, the applicant, in fact, engaged in no acts of violence although he was armed with a knife. The other two persons were from the gang. The arms involved, and the presumed intention to use them also suggest to me that a particularly serious crime was involved, even though violence was not actually used.

20.    Judge Sides sentenced the applicant to a total of five years imprisonment, with an overall non-parole period of thirty-four months, expiring on 1 June 2014. He took into account that the applicant, then in his early twenties, was not of good character having previously been convicted of offences as a juvenile. A summary of his police record prior to the sentencing remarks of Judge Sides is set out at Annexure A of these reasons.

21.    Judge Sides found that the applicant was remorseful, and that his prospects of rehabilitation were good. He also found that he had been employed for a total of about 17 months, and that he intended to sever all links with the gang, whose instructions he had followed at the time of the offences.

22.    In each case, the question arises whether the applicant is a danger to the Australian community. I have had the advantage of seeing and hearing the applicant in the witness box and of hearing the evidence of those who gave evidence on his behalf. For reasons which follow, I have decided that the applicant does not constitute a danger to the Australian community. I agree with the Hon B Tamberlin QC, Deputy President who said in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 concerning Article 33 of the Refugees Convention, that the requirement of having committed one or more particularly serious crimes is a gateway provision, rather than something with a causal relation to the question of whether he or she is a danger to the Australian community. That proposition seems to me to be also true of s 36(1C) and s 36(2C).

23.    I also agree with DP Tamberlin that the question of whether the non-citizen is a danger to Australia is to be determined having regard to all the facts and circumstances of the non- citizen, whether or not related to the crimes of which he has been convicted, but including the facts and circumstances of those convictions.

Meaning of "danger to the Australian community"

24.    The first matter which I examine is the meaning of the expression, “danger to the Australian community”.

25. In WKCG and Minister for Immigration and Citizenship [2009] AATA 12 the Hon B Tamberlin QC, Deputy President, examined the meaning of Article 33(2) and said at [25], [26], [29]-[31]:

25.    The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.

26.    Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.

…

29.    As a matter of interpretation, in my view, the reference to the words "having been convicted" operate to limit the class of persons on whom the provision operates and that the question whether a person "constitutes a danger" is a separate additional matter to be independently established. The reference to "having been convicted" is analogous to a prerequisite to the exercise of the power independent of the other criterion. This conclusion is supported by extrinsic material including the Second Reading speech and the relevant Explanatory Memorandum. Therefore, once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community. Of course, the nature and circumstances of the conviction or convictions will generally be highly relevant to the question whether the person can be described as being a "danger". However, it is not conclusive. It is necessary to look at the person's conduct in the light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of the convictions. In other words, if a person is convicted for a crime of violence and it later transpires that he or she may constitute a danger to the community in another area, such as drug trafficking, such a person may come within the exception provided for in the Article. Accordingly, I agree with the submission made by the respondent Minister and reject the submission of the applicant that the particular offences for which the person has been convicted must always somehow be causally linked to the type of danger to the community.

30.    Counsel for the applicant also submits that, to constitute a danger there must be a substantial evidentiary basis to conclude that the refugee is presently, at the time of the decision, an actual danger and that it is a requirement that there is a "real probability" of harm being caused to the community.

31.     The language of the Article directs attention to the expression "danger". This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at 100) it involves an assessment of the applicant's level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression "danger" involves a lesser degree of satisfaction than that required by the expression "probable."

26.    In SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40, the Full Court of the Federal Court considered a case involving the meaning of Article 33. It did not directly involve the construction of the expression “danger to the [Australian] community” because both parties accepted that the remarks made by DP Tamberlin in WKCG were correct. Nevertheless, Jagot and Barker JJ said, with the agreement in this respect of Flick J:

52.     The problems with this argument are two fold. First, mere damage to property is insufficient. There must be "serious" damage to property before the offence may be classed as "particularly serious crime". Second, ss 197A and 197B of the Migration Act have a very limited scope. Section 197A makes it an offence to escape from immigration detention. Section 197B makes it an offence for a detainee to manufacture, possess, use or distribute a weapon. The plank in the appellant's argument which depends on "particularly serious crime" extending to relatively low-level offences is not supported by the terms of s 91U. Second, it is not enough that a refugee be finally convicted of a "particularly serious crime" before the refugee loses the protection against refoulement in Art 33(1). In addition, the relevant decision- maker must find that the refugee, having been so convicted, constitutes a danger to the community. The test for such danger, accepted in this case before the AAT, was that expressed in WKCG at [25] of "real or significant risk or possibility of harm to one or more members of the Australian community", it not being necessary to establish "a probability of a real and immediate danger of present harm". The correctness of that test was not in issue in the appeal. Whatever the correct test, the relevant point for present purposes is that the requirement exists and is additional to the finding of conviction of a particularly serious crime.

27.    The Full Court did not adopt the reasons of DP Tamberlin, but nor did they reject them. The most that may be said is that the Full Court failed to endorse the “real chance” test proposed by DP Tamberlin.

28.    The expression “danger to the Australian community” is to be construed in its context, but has no technical meaning. The phrase is used in both s 36 and s 501(6)(d) of the Act, albeit in slightly different contexts. The language is that of ordinary English. Whether it is satisfied involves a close consideration of the whole of the relevant facts and circumstances as they present today. I am not sure that there is any one test as such. The view that a person is a danger to the Australian community can be held in a variety of circumstances. Prior criminal conduct is obviously relevant. The degree of risk of recidivism is obviously relevant, and that requires attention to his motivation not to re- offend. What rehabilitation a person has undergone is obviously relevant. When his last offending occurred is relevant. The views of those who know him well can be relevant.

Consideration of the Applicant's facts and circumstances

29.    The applicant was released on parole in 2014 and was at liberty for nine months. In that period, his parole was threatened to be revoked because he was at the Sydney casino and he was seen to be drinking in the company of a former gang member whom he knew, and that led to him being warned that his parole would be revoked if he did such a thing again. The applicant said that he knew he was required to have no association with gang members as a condition of his parole. He said that he did not think that being in the company of the person in question was a breach of his parole conditions because that person no longer belonged to a gang, and the few hours spent in his company at the casino, including at its bar, were in public.

30.    He said that his parole was revoked in 2015 because he faced further charges which I was told were dismissed at the committal stage and were later, after the charges were laid on indictment, the subject of a no-bill which led to him being discharged by Judge McLennan in October 2016. He was then taken into immigration detention.

31.    He said that he was told that the fresh charges led to his parole being revoked, but after he was incarcerated, was given a paper stating that his parole was revoked for breach of parole conditions.

32.    The applicant said that the alleged victim was his cousin and that he has no idea why he was not available at the trial, which apparently led to him being no-billed. Beyond being asked whether he had had contact with the cousin, which he denied, no details were elicited from him about any circumstances relating to the charges on which he was no- billed. I am unable to form any view adverse to the applicant on this matter.

33.    Much has changed since his last offence of 2011, some seven years ago. He no longer has any connection with the gang or any of its members or former members.

34.    Importantly, he has formed a relationship with a young lady in good standing, who is employed by the Commonwealth Bank. He has been in detention at Christmas Island where she has visited him on three occasions. They intend to marry and want to have a family. She gave evidence before me. The applicant was cross-examined to suggest that their relationship was not genuine, and was put forward as a person whom the applicant intended to marry only in order to bolster his prospects of success on this review. Parallels were sought to be drawn with earlier girlfriends whom the applicant had previously put forward as intended partners. His girlfriend was cross-examined about the genuineness of their relationship.

35.    I reject the suggestion put to the applicant. On the contrary, both she and the applicant satisfied me that their relationship is genuine and affectionate. I accept that they intend to marry and that she is devoted to him.

36.    Travel to Christmas Island to be with the applicant has been expensive for his girlfriend. Twice, she spent several days there, from Tuesday to Saturday, and on the third occasion, she spent two weeks there. She went through passport control in Perth, before taking a three to four hour flight to and from Christmas Island. They spoke by telephone daily.

37.    She has also formed a friendship with the applicant’s family members in Sydney while the applicant has been in detention, and has been trying to go to his mother’s house at least weekly.

38.    When asked by me whether she would go with him if he were sent back to Iraq, the applicant said that she had offered to do so, but he had said he would not let her do so, because her life would be in danger there, and because of her close ties to Sydney, where she also has family of her own.

39.    As the delegate found in the reviewable decision, the applicant’s life would be at risk if he were returned to Iraq, because he would be identified both by his name and by other means as an Assyrian Christian, and his life would be at risk throughout that country.

40.    The applicant is now more mature than he was in 2010 and 2011. He recognises that he will remain at risk of visa cancellation and has now spent much of the last six years in correctional facilities and detention. He faces the loss of his intended wife, his family and all that he is familiar with in this country.

41.     He described his earlier life as “living a lie” and said that he put his family through hell and is ashamed of it.

42.     He took drugs from an early age, although they were not found to have influenced the commission of his offences of 2010 and 2011. He has been drug-free since 2011 or 2012.

43.     He has arranged what could turn out to be a permanent job with the brother of a school friend, who gave evidence before me. Subject to satisfactory performance, he will keep that job. The employer would train the applicant himself. It would be a full-time job starting at 7 am until 5 pm.

44.     The applicant gave evidence that he has severed all links with the gang. He said he has come to realise that they don’t care about him, and he firmly intends to have nothing to do with them. There were gang members in the correctional facilities, and he has had nothing to do with them. His involvement in the particularly serious crimes to which I have referred was gang-related. Separation from that gang is something that his girlfriend will encourage, as will his family members who gave evidence before me. I accept that the applicant firmly intends to have no further connection with organised criminal networks.

45.     His elder sister said she had observed a change in him. She said that the present procedures of the Minister had shaken him up.

46.     I heard from a forensic psychologist who examined the applicant by telephone over two and a half hours while he was in detention on Christmas Island in April this year. She assessed him as a low to moderate risk of re-offending, noting that the items which influenced his score were historical in nature, and that his prognosis was considered positive because of the high level of support he receives from his family and partner, his expressed remorse, and his motivation towards engaging in counselling in the future. She also spoke with his mother, elder sister and partner, and formed the view that they would all provide good support to him.

47.    I also heard from another sister of the applicant and a sister of the girlfriend, who confirmed some other evidence before me.

DECISION

48.    Putting the various findings I have made together as to the position of the applicant since his last offending in 2011, and having attempted to estimate him in the witness box, and having heard what was said about him by his intended wife and the family members, I do not think that there are reasonable grounds for considering him to be a danger to the Australian community. I think it is likely that the community will be safe from him. The reviewable decision will therefore be set aside and remitted to the respondent for reconsideration with the direction that the applicant is not a danger to Australia.

35    Section 43(6) of the AAT Act provides:

A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes ... be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

(emphasis added)

36    Notwithstanding the terms of s 43(6) of the AAT Act the brief provided to the Minister by his department which advised him that it was open to him to consider whether to refuse to grant the Applicant’s application for a Protection visa under s 501(1) of the Migration Act did not identify that there were or might be legal consequences flowing from the Tribunal’s decision as would or might constrain his decision-making in the application that had been remitted to him for re-consideration in accordance with the direction the Tribunal had made. The only references to the Tribunal’s decision in the department’s briefing are those to be found under the heading “Other Factors” and the sub-heading “International non-refoulement obligations”. The relevant passages are as follows:

59.    The Protection Visa Decision Record dated 19 October 2017 shows that the Department found that [the Applicant] is owed international non-refoulement obligations. The decision record also states that in consideration of his criminal offending, [the Applicant] was deemed not to meet criterion in s36{1C), thus his Protection visa application was refused Attachment II.

60.    On 3 October 2018, the Administrative Appeals Tribunal (AAT) remitted [the Applicant’s] application for reconsideration, with the direction that [the Applicant] satisfies criterion in s36(1C) and does not present a risk to the Australian community Attachment X.

61.     You may accept the conclusion drawn by the Department dated 19 October 2017, that [the Applicant] is a person in respect of whom Australia has international non-refoulement obligations, with country of reference being Iraq. This means that his removal to Iraq would breach these obligations. You may also accept that there is currently no known prospect of removing him to any other country.

37    Unsurprisingly, given the Minister had not been briefed to any other effect, the Minister’s reasons similarly do not identify or acknowledge that there were or might be legal consequences arising from the Tribunal’s decision as would or might constrain his decision making in addressing the application that had been remitted to him by the Tribunal for re-consideration in accordance with the direction it had made.

38    The provisions of s 501 of the Migration Act in respect of which the Minister was briefed are as follows:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

…

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

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

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

…

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

39    The only references to the Tribunal’s decision in the Minister’s reasons appear at [42] and [43]. Having regard to the circumstance that Ground 2 of this review raises legal unreasonableness in the manner in which the Minister dealt with the Tribunal’s decision it is appropriate to set out in full the Minister’s reasons as are set otu under the heading “Risk to the Australian Community” so that the approach of the Minister to the Tribunal’s decision and the parties respective submissions with respect to Ground 2 can be appreciated in context. The passages that refer to the Tribunal’s decision have been identified in bold:

22.    In making my decision I considered that Australia has a low tolerance of any criminal conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia.

23.    I have considered whether [the Applicant] poses a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps [the Applicant] has undertaken to reform and address his behavior (sic). I have also taken into account [the Applicant’s] overall conduct in the custodial and non-custodial environment, and his insight into the offending.

24.    I have considered the comments of the sentencing Judge on 5 October 2012 who noted [the Applicant’s] personal history taking into account that he was born in Iraq and arrived in Australia as a young child with his three older siblings, and raised by his mother who worked two unskilled jobs to provide for the children on her own. The Judge commented that [the Applicant] appears to harbor considerable resentment at the absence of the role of his real father in his life, and that [the Applicant] attributes his offending behavior (sic) to the lack of guidance as a consequence of his father's absence.

25.    I note the sentencing remarks on 5 October 2012 also state that [the Applicant] was about 20 years of age when he became associated with the 'Notorious gang', and he subsequently became a member of that gang some nine months later. It was disclosed to the court that he started abusing drugs at an early age, and although his drug and alcohol use is not suggestive of any significant problem, it is an ongoing one. Further, it was submitted to the court that [the Applicant] has difficulty controlling his emotions, especially anger, and although his non-verbal skills are adequate, his verbal skills are poor. Also that according to a psychologist there may be a link between his poor verbal skills and poor control of emotions, which in turn may also make him susceptible to adverse influences of negative peers.

26.     I have also taken into consideration that the sentencing Judge stated that although [the Applicant] may have problems controlling his emotions, there is no evidence that he engaged in his offending in the context of an inability to control anger. Whilst [the Applicant] claimed that he went along with the others in the gang, his actions in the cafe of hitting one of the victims once with a baseball bat are inconsistent with a problem of controlling anger. I note that the Judge stated that regarding his actions during the attempted home invasion, [the Applicant] resolved to not to be involved in shooting and waited behind a car when he saw an occupant in the home with a gun. The sentencing Judge stated that there was no evidence [the Applicant] was affected by drugs or liquor at the time of the offences, and the court was not persuaded that there is any reduction in his moral culpability as a result of intoxication or inability to control his mood or level of intellectual functioning.

27.     I have considered [the Applicant’s] representative's submission that mitigating circumstances which apply to [the Applicant] include his use of drugs at an early age, and that his first offence was committed as a minor. It is submitted that the absence of a father figure in his life is also a factor, as well as his exposure to criminal influences resulting from a lack of proper guidance.

28.     Although I take into account that [the Applicant’s] background circumstances may assist to explain some of what led to his offending behavior (sic), I also take into consideration that the court stated that there was no evidence [the Applicant] did not know at the time of the offences what he was doing, or the consequences of his offending.

29.     I have taken into account that [the Applicant] has expressed remorse over his criminal offending, and that he acknowledges the harm inflicted upon the victims and their families. I note his statements that he accepts he was deserving of the sentence imposed by the Judge.

30.     I have also taken into account that [the Applicant] acknowledges making terrible mistakes and regretful decisions, which he submits he made under peer pressure and in an attempt to please other people. He states that this is now in his past, and a lack of education and support were mitigating factors contributing to his past criminal conduct. I note his submissions that he is a generally shy person with no intention to cause anyone harm, and the absence of a father to properly guide him has led to him making mistakes that have caused considerable heartache to his family. I note his statements that he is resolved never to repeat such mistakes, that he has the support of his family, and that he has already sought employment so that he may contribute to the community.

31.    [The Applicant] also submits that he intends to take care of his ill mother, repay his siblings for their support and help with his legal fees, and to prove to everyone that he is now a better person. I have taken into account his statements that he will not associate with friends and people who present a bad influence, and he is seeking the opportunity to demonstrate the changes he has made as he focuses on improving his life with plans to get married, find a full time job and support his family.

32.     I acknowledge that [the Applicant] submits he was involved with criminal gangs between the ages of 18-20 years old, and that his gang membership ceased when he went to jail.

33.     I have considered [the Applicant’s] comment that he is no threat to the Australian community. I also note his comments that his ongoing detention leaves him feeling isolated, depressed and worthless.

34.     I have taken into account the number of course certificates and statements of achievement that [the Applicant] has submitted, as evidence of his efforts at rehabilitation.

35.     I have given consideration to the psychological assessment for [the Applicant] dated 26 April 2016, which states that given his history of migrating to Australia after fleeing war-torn Iraq as a child, it is likely that he had experienced post-traumatic symptoms in relation to those events, thus precipitating the development of anxiety and depressive symptoms during adolescence and early adulthood. In addition to his mental health issues, the report states [the Applicant] revealed a troubled childhood characterised by antisocial behaviours during adolescence, stemming from the absence of a father figure in his life and leading to him to seek approval and a sense of belonging with his peer group.

36.    I note the psychological assessment also states that [the Applicant] is assessed to be in the low to moderate range for risk of reoffending, noting that the items which inflated his score were historical in nature, and that he has not been convicted of any further serious offences since 2012. I have taken in consideration the psychological assessment states that though his risk for recidivism is in the low to moderate range, protective factors in his life include the high level of support from his family and partner, his expressed remorse, and intentions of engaging in future counselling.

37.     I have taken into account the letters and statements of support made by [the Applicant’s] family members, partner, and friends and Parish Priest who acknowledge he has made mistakes in his life, but is a changed man who wishes for the opportunity to prove himself as a contributing member of the Australian community. I have also taken into account [the Applicant’s] submission that he had previously helped at the local Assyrian Church and had played soccer since he was 10 years of age.

38.     I have considered the Probation and Parole Service, Immigration Report from Cooma Correctional Centre dated 27 February 2013, which refers to case notes from December 2011reporting that [the Applicant] complied with centre routine and was polite and compliant, although in late 2012 his behaviour deteriorated and he was moved to a different correctional facility.

39.    I acknowledge the Pre-Release Report from Wellington Correctional Centre dated 25 March 2014, which states that [the Applicant] expressed regret over his actions and understood that his offending would have had a long term impact on his victims. It is stated that he has participated in literacy and numeracy educational classes, and has received positive reports regarding his performance as a general hand in a cleaning crew.

40.    I have taken into account the Probation and Parole Service, Breach of Parole Report dated 16 February 2015, which states the following. [the Applicant] was released from prison to parole on 1 August 2014. He reported as directed and attended interventions, and urinalysis drug tests in September 2014 and February 2015 returned negative results. [The Applicant] attended five counselling sessions for drug relapse prevention and anger management counselling. Whilst I acknowledge that [the Applicant] displayed some compliant conduct whilst on parole, I also note the report states that on 16 January 2015, police pulled over a car containing [the Applicant] and two male associates, and found a replica pistol under the car seats, which [the Applicant] claimed was a child's toy.

41.    I also note with concern that on 6 February 2015, information was received that [the Applicant] had been associating with a member of an 'Organised Crime Network'. During an interview on 12 February 2015, [the Applicant] was questioned about this and he claimed he thought that he was not permitted to associate with 'bikies with colours' and the person he was associating with was a gang member before, but is no longer. The report stated that while [the Applicant’s] response to supervision has been satisfactory, his overall response appears to be superficial and his association was of great concern. I note that a recommendation of revoking his parole order was supported, and his parole was subsequently cancelled.

42.    I have considered the decision of the Administrative Appeals Tribunal (AAT) who found that [the Applicant’s] (2010) offending was a serious crime involving violence. His most recent offending (2011) involved no actual violence on [the Applicant’s] behalf though he was armed with a knife at the time. The AAT found that [the Applicant] does not constitute a danger to the Australian community.

43.    The AAT took into account that [the Applicant’s] circumstance are different now to what they were some seven years ago as he no longer has any connect ion with the gang or its members; he has formed a relationship with a young lady of good standing in the community and they intend to marry and start a family; he is more mature now and has been drug free since 2011or 2012. Furthermore, he has job prospects through a brother of a school friend and the support of his family. Despite the findings of the AAT, I am of the view that [the Applicant’s] conduct remains untested in the community.

44.    I acknowledge that there are a number of factors indicative of a lowering of the risk of [the Applicant] reoffending, including his expressions of remorse and that he submits that he no longer has ties to gangs, its members or former members. I note that [the Applicant] was generally compliant during his time in prison, on parole and in immigration detention. Also that his partner is said to be a strong source of support, along with other family members. However, I note that [the Applicant] had protective factors in the past being the support of his family and community yet he continued to offend.

45.    I also take into account that [the Applicant] displayed some compliant conduct in prison and whilst on parole in 2015. However, I also note that whilst in the community on parole he associated with a person said to have been a member of an organised crime network, and I find this of concern particularly given [the Applicant’s] violent offending conduct in 2010 was gang related.

46.    I have considered that the Australian Criminal Intelligence Commission (ACIC) designates OMCGs as one of the most high-profile manifestations of organised crime in Australia. I am aware that OMCGs remain the target of national law enforcement operations to reduce the criminal threat posed by OMCGs to the community.

47.    I also take into account the information contained in [the Applicant’s] criminal history certificates, the sentencing remarks of the District Court of New South Wales dated 5 October 2012, and various probation reports showing that [the Applicant] was a member of the Notorious OMCG until at least October 2012 when he was sentenced to prison.

48.    I find [the Applicant’s] past membership of the Notorious OMCG indicates his willingness to associate with anti-social and criminal elements in the community, and his willingness to engage in violent criminality as a gang member. Whilst I have taken into account [the Applicant’s] submission that he is no longer a member of the gang, I find that he subsequently associated with a person said to have been a gang member, whilst he was on parole in 2015 and that also in this instance such association was despite having family support and knowing the consequence of returning to prison which did not act as a motivational factor for him to fully disassociate himself from criminal elements whilst in the community. Such non -compliant conduct resulted in his parole being revoked.

49.    I note that after [the Applicant] returned to prison and was released, he went straight into immigration detention and has not sin ce returned to the general community.

50.    I find that [the Applicant] has not yet had the opportunity to test his ability to remain drug free in the community for any length of time and to refrain from associating with member/s of criminal gangs that may make him vulnerable to the negative influence of such associates, which he states was a major influence in his past offending.

51.    Overall, I find that there remains an ongoing risk that [the Applicant] will reoffend. Should [the Applicant] engage in further criminal conduct of a similar nature, it could result in dangerous and violent conduct that could cause significant physical harm and/or psychological injury to members of the Australian community.

THE MINISTER’S DECISION

40    Having concluded as above, the Minister then gave attention to whether to exercise his discretion to refuse to grant the Applicant a visa having regard to other representations the Applicant had made.

41    The Minister, while accepting that at least some of those considerations could be accepted to weigh in the Applicant’s favour, concluded that:

87.     I find that the Australian community could be exposed to significant harm should [the Applicant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the Applicant]. The Australian community should not tolerate any further risk of harm.

88.     I found the above consideration outweighed the countervailing considerations in [the Applicant’s] case, including the best interests of his nephew treated as a primary consideration, the impact on his partner, mother and other family members, and that he is owed international non-refoulement obligations.

89.     I am cognisant that where significant harm could be inflicted on the Australian community, even strong countervailing considerations are insufficient for me not to refuse the visa. This is the case even applying a higher tolerance of criminal conduct by [the Applicant], than I otherwise would, because he has lived in Australia from a very young age.

90.     In reaching my decision I concluded that [the Applicant] represents an unacceptable risk of harm to the Australian Community and that the protection of the Australian community outweighed any countervailing considerations above.

91.     Therefore, I decided to exercise my discretion to refuse to grant [the Applicant’s] application for a Protection (Class XA) visa under s 501(1) of the Act.

42    The Minister thus determined the application which had been remitted to him by the Tribunal by refusing, on that basis to grant the Applicant the Protection Visa he had been seeking.

43    It is convenient at this point to address Ms François’ submission that the Court should find that the Tribunal had determined the Applicant’s review by applying a legally unsound, too strict test, with respect to what “danger” meant for the purposes of s 36(1C) and in consequence the Minister had been entitled to determine the remitted application without regard to the Tribunal’s reasons.

44    I reject that submission. There is absolutely no indication in the Minister’s reasons as would suggest he proceeded on that basis. For that reason alone it is to be rejected as a straw man argument advanced only in retrospect. However there are further reasons for that proposition to be rejected.

45    First, it is inherently improbable that the Tribunal determined the proceeding then before it by applying a test that was more disadvantageous to the Applicant than that submitted for by counsel then representing the Minister. In the absence of any evidential base for such an unlikely proposition the submission now pressed is a surprising one for a model litigant to advance. It amounts to asserting that it was open for the Minister to contend in the Tribunal that the Applicant was required to hurdle a high bar to meet the test provided for in s 36(1C) but later was entitled to treat the Tribunal’s decision as a legal nullity because it had accepted that submission and had proceeded on that basis.

46    Second, Ms François fails to identify any binding authority requiring the conclusion that the Tribunal did, impermissibly and unlawfully, apply a legally unsound test. The highest Ms François was able to put her submission was on the basis that in DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18) Logan J in obiter remarks at [76]–[87] had queried whether, notwithstanding the respect due to the reasoning of DP Tamberlin QC and repeated citations with approval of DP Tamberlin’s reasoning, including by judges of this Court, of his analysis in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434; AATA 512 (WKCG) there were reasons to be sceptical of an uncritical acceptance of all that had been stated by the learned Deputy President. I accept that Logan J appears to have been strongly persuaded that DP Tamberlin may have, and perhaps had, set the bar too high in respect of what was sufficient for the purposes of s 36(1C) of the Migration Act for a person to constitute a danger to the Australian community. However as Ms François was compelled to concede neither Rares nor Robertson JJ said anything in their separate judgments in DOB18 to suggest that they joined with Logan J in doubting the correctness of the approach of DP Tamberlin in WKCG.

47    Ms Francois could not point to any subsequent case in which Logan J’s obiter had been applied. The Minister’s written submissions at [20] themselves note that the different approach suggested by Logan J had been noted in WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10 but without any necessity for expressing a concluded view.

48    That DP Tamberlin’s reasoning might be overruled in whole or in part in a future case is no more than the potential fate of any expression of a legal test. It cannot be open to the Minister to assert the right to treat as a nullity the decision of the Tribunal because of such a possibility.

49    I reject that in that circumstance (even if in other circumstances it might have been open to the Minister which I need not decide, but doubt) there is any sound basis for the submission that the Minister was entitled to treat as of no legal effect the outcome of a Tribunal decision premised on its application of the tests in WKCG it applied.

50    Ms François’ further submission advanced only in oral argument that because an appeal from the decision of the Tribunal was not effectively available (because while the Minister had failed in the Tribunal an appeal premised on a ground that the test it had applied should have been less strict and more in the Applicant’s favour would have been futile) the Minister was justified unilaterally to proceed on his own assessment of the invalidity of the Tribunal’s reasoning, is entirely unpersuasive.

51    This Court’s capacity to declare the law is not narrowly bounded. Thus in Association for Employees with a Disability v Commonwealth of Australia [2021] FCAFC 36 I took occasion to observe:

6.     Writing extra judicially (French, Justice Robert, “Declarations - Homer Simpson’s remedy - is there anything they cannot do?” (2007) FedJSchol 24) Justice French (as his Honour then was) expressed the view that the making of a declaration on the lawfulness of future conduct can be an exercise of power in federal jurisdiction provided that it arises out of a contemporary controversy in which a party’s freedom of action has been challenged in some way or a right threatened. His Honour noted at [25] that the want of a legal right or cause of action in the applicant is not a bar to the claim for declaratory relief. In the same paragraph his Honour identified that the substantive constraints upon the Federal Court’s power to grant a declaration were those that had been identified by Lockhart J in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; (1996) 139 ALR 663 (Aussie Airlines) as follows:

•    The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversy. The answer to the question must produce some real consequence to the parties.

•    The applicant for declaratory relief will not have sufficient status if relief is claimed in relation to circumstances that (have) not occurred and might never happen; or if the court’s declaration will produce no foreseeable consequence for the parties.

•    The party seeking declaratory relief must have a real interest to raise it.

•    Generally there must be a proper contradictor.

7.        I have identified nothing judicially determined since as would narrow the circumstances in which a declaration is open to be made. In Clarence City Council v Commonwealth of Australia [2020] FCAFC 134, a Full Court of this Court recently referred to and applied the principles expressed by Lockhart J. The High Court has granted special leave to appeal in that proceeding but subject to possible correction in that regard I regard those principles as settled.

52    Had the point now contended for by Ms François been identified by the Minister and perceived by him to be relevant at the time he came to make his decision, those principles do not appear to exclude the possibility that a declaration might have been available to have been sought. However, I reject that there is anything at all before this Court as would justify it finding that that apprehension was in fact held by the Minister.

53    As I have already noted there is nothing at all in the Minister’s reasons to suggest that when he made his decision he had any apprehension at all that the Tribunal had erred in the manner now contended for. Neither was there anything in the briefing supplied to him by his department to suggest that.

54    I therefore turn to the position that applied when the Applicants’ application for a Protection Visa came before the Minister on remittal from the Tribunal. I am satisfied that that position was one in which, following a contested hearing, the Tribunal had made findings of fact. It was on the basis of those findings that the Tribunal had remitted the Applicant’s application to the Minister for determination in accordance with the direction it made.

55    In Minister for Immigration and Border Protection v Makasa [2021] HCA 11 (Makasa) Keifel CJ, Gageler, Keane, Gordon and Edelman JJ referred to the effect of a decision made by the AAT as follows:

50.     Looking to the generic operation of the AAT Act, an intention not to allow further re-exercise of a power by a primary decision-maker after re-exercise of that power by the AAT under s 43(1)(b) or (c)(i) of the AAT Act on review of an earlier exercise of power by the primary decision-maker is inherent in the nature of the merits review function for which it is the design of s 43 of the AAT Act to make provision. The merits review function of the AAT is "to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review" The function of the AAT, in other words, is "to do over again" that which was done by the primary decision-maker. The function would be reduced to a mockery were the subject-matter of the decision made by the AAT on review able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the AAT in the conduct of the review.

51.     The object of s 43(6) of the AAT Act, in deeming a decision made by the AAT under s 43(1)(b) or (c)(i) in variation of or substitution for the decision under review to be a decision of the primary decision-maker, is to bring finality to the administrative decision-making process. Like any other legal fiction, the deeming effected by s 43(6) of the AAT Act cannot be taken to have a legal operation beyond that required to achieve the object of its enactment. Section 43(6) cannot be taken so far as to be read as requiring an exercise of power by the AAT to be treated as no more than an exercise of power by the primary decision-maker which the primary decision-maker is able by operation of s 33(1) of the AI Act simply to re-exercise.

(footnotes omitted)

56    No issue as to the scope of the limited exception to that principle established by s 501A of the Migration Act is engaged in this proceeding.

57    It is light of those principles that the parties’ respective submissions in support or opposition to Grounds 1 and 2 fall to be considered.

58    However there is a preliminary issue that perhaps first must be dealt with. On the basis of what was their understanding of what was determined by the Full Court in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (KDSP) both the Applicant and the Minister advanced their respective submissions on the understanding that the issues in the application the Tribunal had remitted to the Minister for redetermination according to law were not those confined to whether the Applicant satisfied the criteria in s 36(1C) for the grant of a Protection Visa. Both parties proceeded on the basis that the Applicant’s application for that visa was open to be refused by the Minister having regard to the provisions of s 501 of the Migration Act. I should explain why I am prepared to proceed on that basis.

59    In KDSP the Full Court unanimously held that Rares J had been in error in BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19) to have held that s 36(1C) of the Migration Act, being a specific criterion applicable only to an applicant for a protection visa, precluded the Minister using s 501 or its analogues as a basis to refuse to grant a protection visa. The plurality (O’Callaghan and Steward JJ) reasoned at [283]–[284] that, properly construed, the Migration Act did not provide for two alternative pathways to determine an application for a protection visa – rather s 36(1C) was simply one criterion that an applicant for a protection visa was required to satisfy. Sections 36(1C) and 501 operated as “cumulative requirements”. Even if an applicant satisfied the criteria in s 36(1C) he or she remained, alike with all visa applicants, subject to the potential exercise of the Minister’s discretionary exercise of power as provided for in s 501 of the Migration Act.

60    By contrast, while agreed in the outcome, Bromberg J held that, properly construed, the Migration Act provided for two distinct and alternative mechanisms, either of which permitted the Minister to determine an application for a protection visa. The Minister was free to choose which of those mechanisms to pursue and it was lawfully open to the Minister, rather than assessing the application by way of the criteria provided for in s 36(1C), to choose to assess the application by way of the alternative pathway provided for by s 501. At [99] his Honour reasoned:

There is no tension or conflict between s 36(1C) and s 501 if they are true alternatives – that is two paths through which the Minister may address the same subject…

(citation omitted)

61    Having regard to his Honour’s reference to the provisions of s 36(1C) and s 501 being capable of reconciliation if they were “true alternatives”, one reading of that passage leaves open the possibility that his Honour was of the opinion that adoption of one would preclude recourse to the other. Of course such a reading is not necessarily that which, had argument been directed to the point, would require acceptance. However the interesting question as to what the ratio in KDSP is and whether it extends to the particular circumstance of this case can be set aside in these proceedings.

62    That is because no submission is made on behalf of the Applicant that the Minister, because his Delegate had originally dealt with the application simply as one made pursuant to s 36(1C), perforce must have forsaken the alternative provided for in s 501. In oral argument Mr Sullivan expressly rejected that that the Applicant was advancing such a proposition. I am accordingly entitled to proceed on the basis that this application is to be decided on the premise that the plurality’s reasoning in KDSP: viz that s 36(1C) is simply one criterion that an applicant for a protection visa is required to satisfy, is to be applied.

63    Having perhaps too laboriously set the scene it is possible to address the grounds of appeal in these proceedings with more dispatch.

THE APPEAL

64    It will be recalled that the grounds of review advanced by the Applicant were as follows:

1.    In light of the findings of the [Administrative Appeals] Tribunal (which are treated as findings of the Minister pursuant to s 46(6) of the Administrative Appeals Tribunal act 1975 (Cth) (AAT Act) and/or the direction of the Tribunal made pursuant to s 43(1)1 of the AAT Act, the Minister was obliged to conclude that the Applicant was not a danger and/or risk to the Australian community. In failing to so find, the Minister committed jurisdictional error.

2.    The Minister failed to give proper, genuine and realistic consideration to the fact that the [Administrative Appeals] Tribunal had determined that the Applicant was not a danger and/or risk to the Australian community, and/or acted in a legally unreasonable way in failing to act consistently with and/or considering the Tribunal’s determination and/or failed to properly take into account a mandatory relevant consideration, and therefore committed jurisdictional error.

(Particulars omitted)

Ground 1

The Applicant’s submissions

65    The Applicant advances his contentions in relation to this ground of appeal as involving the question of whether:

16.     …the Minister has lawfully exercised his discretion pursuant to s 501(1) of the Migration Act to refuse the Applicant’s visa application on the grounds of the Applicant’s supposed risk to the Australian community, where the Tribunal (on the same factual basis as that before the Minister) had determined and directed the Minister that the Applicant did not pose a risk to the Australian community for the purposes of s 36(1C) of the Migration Act.

66    He submits that:

32.     …Because the supposed risk of the Applicant to the Australian community was the sole reason why the Minister refused the Applicant’s protection visa application, and because this question has been finally determined in the Applicant’s favour by the AAT, the only lawful outcome is that the protection visa now be granted…

The Minister’s submissions

67    The Minister submits that there is no dispute that the Applicant failed the character test. Accordingly the Minister’s broad discretion pursuant to s 501 to refuse the Protection Visa was enlivened. The Respondent submits that:

15.     The applicant’s argument… narrows to the proposition that a finding in relation to section 36(1C)(b) of the Act binds the Minister in the exercise of his broader discretion under section 501(1) of the Act.

68    On that basis the Minister submits:

16.    While the applicant refers to the Full Court’s decision in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (AS [31]) he fails, with respect, to give that judgment its full effect.

17.    In KDSP, Bromberg J accepted that the “Act treats the two provisions as independent of each other, each providing an alternative basis upon which a protection visa may be refused” (at [79] and see also [99]). His Honour also observed that section 36(1C) sets a “higher bar” for exclusion than section 501(1) (at [98]).

18.     O’Callaghan and Steward JJ observed that “ss. 36(1C) and 501(1) are cumulative requirements” (at [284]) and further explained at [295] that:

“… the key point is that s. 36(1C) expresses Australia’s interpretation of its right of refoulement under Art. 33(2) of the Convention. That is its purpose. It takes the form of a criterion to be satisfied. In contrast, s. 501 confers powers of refusal and cancellation for all applicants and visa holders, where there has been a failure of the character test. The purpose of this provision is different. It is an additional power designed to “strengthen”, to use the language of the 1998 Explanatory Memorandum, the Minister’s power to refuse any visa application on character grounds.”

Consideration

69    Ground 1 is premised on the proposition that in bringing finality to an issue in the Applicant’s remitted application – that is whether the criteria in s 36(1C)(b) had been met – the Minister became legally bound to apply the reasoning of the Tribunal (absent new circumstances having arisen) in that remitted application more broadly including in respect of his consideration of the Applicant’s representations advanced in reference to s 501.

70    Because the tests provided for in s 36(1C) and s 501, as KDSP recognises, and Ms François acknowledges, can be accepted to deal with the same overlapping subject matter, albeit in different statutory contexts, I would not reject that the contention of the Applicant is plausible having regard to the provisions of s 43(6) of the AAT Act as set out at [35] above. Section 43(6) refers to a decision made by the Tribunal in substitution for the decision of a person being for all purposes deemed to be that of the person it is substituting for (in this instance the Minister).

71    In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 McHugh, Gummow, Kirby and Hayne JJ said (at [78]):

… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. …

72    However despite the potential centrality of the constructional issue in these proceedings neither Mr Sullivan nor Ms François addressed any substantial submissions referrable to the meaning of the words in s 43(6) of the AAT Act “shall for all purposes…be deemed to be a decision of [the person whose decision it substitutes for]”. In my opinion the correct construction of those words as they appear in s 43(6) of the AAT Act is self-evidently important to resolve in the context of a decision made by the AAT that brings to finality only one part of an application in which other criteria yet to be determined involve overlapping subject matters in a remitted application.

73    It would be inappropriate to decide Ground 1 in the absence of having heard from the parties in respect of a critical issue which the Court regards as potentially determinative. If the soundness of Ground 1 was essential to the resolution of this application I would have regarded the Court as bound to permit reopening of argument on the constructional issue. However it is unnecessary to reach a concluded finding with respect to Ground 1. That is because I am satisfied, whatever the correct analysis might be, for the reasons I state below that Ground 2 must be accepted to be made out.

Ground 2

The Applicant’s submissions

74    The Applicant submits in relation to this ground that the Minister failed to give “proper, genuine or realistic consideration” to the Tribunal’s decision. The Applicant’s written submissions contend that the Minister:

35.     …was obliged to offer an intelligent and evident justification for departing from the AAT Decision. He was obliged to give proper consideration to it in making his decision, whether because the Applicant claimed reliance on it or because it was a mandatory relevant consideration of great importance…he failed to do so.

75    In his oral submissions Mr Sullivan clarified that the Applicant’s submissions embraced the proposition that even if the Minister had not been obliged as a matter of law to treat the Tribunal’s decision as a mandatory relevant consideration, he had had an obligation to engage with and give proper, genuine and realistic consideration to the Tribunal’s findings as had been relied upon by the Applicant in the representations he had made to the Minister. The representations that the Applicant had made to the Minister identified the Tribunal’s decision and reasoning as a critical integer relevant to his claim to be “a changed man”.

76    The Applicant submits that the failure of the Minister to give proper, genuine and realistic consideration to the Tribunal’s findings not only is evident from the derisory way in which the Minister dealt with its reasoning but also manifested in relation to the revocation of the Applicant’s parole in 2015. In that particular instance the Minister recorded a finding at [48] (see also [41]) that the Applicant’s parole had been revoked by reason of his having associated with a member of an “Organised Crime Network”. Mr Sullivan submits that that error (I accept it to have been such: see below at [80]) would not have been made had the Minister given any attention to the Tribunals’ reasons, in particular, those at [29]-[30].

The Minister’s Submissions

77    Ms François did not suggest that the Applicant’s submissions as referred to at [75] fell outside the terms of Ground 2.

78    Rather Ms François submits that the Tribunal’s decision and its reasons were not mandatory relevant considerations in respect of the matters the Minster was entitled to take into account in the exercise of his discretion under s 501. Insofar as they were referred to in the Applicant’s representations the Tribunal’s decision and its reasons were “just another piece of material before him” that the Minister was entitled to place such weight on as he thought fit.

79    The Minister had given adequate reasons at [43] to explain why he had discounted the Tribunal’s assessment: it was because, despite the Tribunal’s findings, the Minister was of the view that the Applicant’s conduct “remains untested in the community”. The Minister had departed from the Tribunal’s findings “because he quite clearly [did] not consider himself bound by it.” The Minister had been correct in that regard and no reviewable error was involved in that reasoning.

80    Ms François initially took issue with Mr Sullivan’s submission that the Minister had made a mistaken finding with respect to the revocation of the Applicant’s parole. However after her attention was drawn to what the Minister had stated at [48] and its inconsistency with the State Parole Authority letter dated 27 February 2015, Ms François ultimately conceded that what Mr Sullivan had submitted appeared to be the fact. The Court gave the Minister leave to identify any materials as would suggest otherwise. That opportunity was not taken advantage of. I proceed on the basis that the Ministers’ mistake ceased to be in dispute.

Consideration

81    It is uncontentious that in the exercise of his discretionary decision making pursuant to s 501 the Minister was obliged to have regard to the representations the Applicant had made to him in response to the invitation he had extended. The discharge of the Minister’s statutory task entailed the obligation on his part “to engage in an active intellectual process with reference to those representations”: Minister for Home Affairs v Omar [2019] FCAFC 188 at [36(d)].

82    However as the Full Court observed in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [48]:

…a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof…

83    Moreover as Carrascalao and other subsequent authorities have made clear it is the representations as a whole to which consideration must be given. The Minister has no duty to give discrete and specific attention to every proposition asserted in an applicant’s representation.

84    Those caveats acknowledged, I am satisfied that it is of no moment as to whether the Tribunal’s reasons are properly to be characterised as a mandatory relevant consideration (having regard to their legal status in having brought to legal finality the administrative decision-making process in respect of the criterion provided for in s 36(1C)(b) in the Applicant’s application), or as a critical element of the representations the Applicant made to the Minister. However characterised, as I explain below they bore on a critical question required to be determined by the Minister. For that reason the Minister was subject to a duty to give proper, genuine or realistic consideration to the Tribunal’s decision and reasoning.

85    The central and critical integer of the representations that the Applicant made to the Minister was that he had learnt by his mistakes and had matured such that he was a changed man and no longer the person who had committed the offences he had earlier been convicted of (as to the significance of such a representation see Anees v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 67).