Federal Court of Australia

YVTG by his Litigation Representative AKI21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 655

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time limit within which the present application ought to have been commenced be extended to the extent required to permit it to proceed.

2.    The application be dismissed.

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

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant is a citizen of the United Kingdom. He has lived in Australia since the mid-1970s, when he was brought here as an infant. Prior to October 2017, he was the holder of a Class BF Transitional (Permanent) Visa (hereafter, the “Visa”) issued pursuant to the provisions of the Migration Act 1958 (Cth) (hereafter, the “Act”).

2    On 16 October 2015, the County Court of Victoria convicted the applicant of aggravated burglary and other offences, for which he was sentenced to a total of five years’ imprisonment. Those convictions were the most recent of a criminal history that had spanned nearly 30 years and comprised more than 400 offences.

3    On 16 October 2017—and in consequence of his criminal past—the applicant’s Visa was cancelled. That (hereafter, the “Cancellation”) was effected pursuant to s 501(3A) of the Act. On 8 November 2017—and in response to an invitation extended to him under s 501CA(4)(a) of the Act—the applicant made representations to a delegate of the first respondent (hereafter, the “Minister”), by which he sought to have the Cancellation revoked (hereafter, the “Revocation Request”). On 22 February 2019, a delegate of the Minister declined the applicant’s Revocation Request (that decision is referred to, hereafter, as the “Non-Revocation Decision”). The applicant subsequently applied to have the Non-Revocation Decision reviewed on its merits by the second respondent (hereafter, the “Tribunal”). That application (hereafter, the “Review Application”) did not succeed: on 17 May 2019, the Tribunal affirmed the Non-Revocation Decision (that decision of the Tribunal is referred to, hereafter, as the “Tribunal’s Decision”).

4    On 2 July 2019, the applicant filed in this court an application for judicial review of the Tribunal’s Decision. More accurately, he filed an application for an extension of time within which to apply for such a review, having missed the relevant statutory deadline by a short period. The application was made on the applicant’s behalf by his litigation representative, who was authorised to that end by reason of orders made by the Victorian Civil and Administrative Tribunal in respect of the applicant under the Guardianship and Administration Act 1986 (Vic).

5    Regrettably, the matter took some time to be brought to trial. The applicant’s litigation representative initially prosecuted the application in person. For health-related reasons, the matter could not be listed with the haste that would have been preferable. In 2020—when, in response to the covid-19 pandemic, drastic restrictions were imposed throughout Victoria on people’s freedom of movement—the applicant’s litigation representative (who is blind) indicated that he would not be able to conduct the trial by remote means. Ultimately, as government restrictions endured for as long as they did, the applicant’s litigation representative was able to secure legal representation, and the matter was heard by remote means in December 2020.

6    The applicant alleges that the Tribunal’s Decision was the product of jurisdictional error. Two grounds are advanced in that regard, which it is convenient to replicate in full:

1.    In exercising its discretion in s.501(6) of the Migration Act the Tribunal failed to take into account relevant considerations and/or exercised its discretion unreasonably.

Particulars

(a)    The Tribunal failed to take into account the following factors in its evaluative assessment of the applicant’s case:

a.    The breach of the duty of care owed to the applicant by the state when he was a young child; and/or

b.    The fact that the applicant was the subject of a guardianship and administration order and the practical and legal implications of this.

(b)    In undertaking its evaluative assessment of the applicant’s case the Tribunal was required to take into account these factors and in the circumstances of this case the failure to do so was unreasonable.

2.    The Tribunal’s finding in respect of impediments if the applicant were removed from Australia was affected by legal unreasonableness; or in the alternative, the Tribunal failed to take into account a relevant [consideration], being the impact of his intellectual disability and psychological conditions.

Particulars

a.    The Tribunal was required but failed to address the following matters to determine the nature and extent of any impediments faced by the applicant:-

i.    The nature and impact of the applicant’s intellectual disability; and/or

ii.    The nature and impact of his complex psychological issues and substance abuse problems.

b.    The failure to undertake this assessment in its consideration of this factor represented a failure to take into account relevant considerations and/or was unreasonable.

7    For the reasons that follow, I do not accept that any of the applicant’s contentions is made good. The application will be dismissed with the usual order as to costs.

The legislative scheme

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

501     Refusal or cancellation of visa on character grounds

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

…

    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))…

…

Substantial criminal record

(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…

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

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

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

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(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.

…

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

11    Section 496 of the Act permits the Minister to delegate his or her powers under the Act, including the power for which s 501CA(4) of the Act provides. Section 500(1) of the Act confers jurisdiction on the Tribunal to hear applications for the review of decisions made by delegates of the Minister under s 501CA(4). This court has jurisdiction to hear applications for judicial review of such decisions: the Act, s 476A(1)(b). Applications of that kind must be made within 35 days of the decision to which they relate: the Act, s 477A(1). This court is empowered to extend that deadline if satisfied that it is in the interests of the administration of justice to do so: the Act, s 477A(2).

Extension of time

12    The Tribunal’s Decision was handed down on 17 May 2019. The applicant had until 21 June 2019 to file an application in this court for judicial review. His application to that end was filed 11 days after that deadline expired, on 2 July 2019.

13    The Minister did not oppose the granting of the extension that was sought. The trial proceeded on the basis that it would be granted. In the circumstances, I am satisfied that it is in the interests of the administration of justice to extend, by order under s 477A(2) of the Act, the 35-day time limit for which s 477A(1) provides.

The case for revocation

14    By means of his Revocation Submissions, the applicant identified a suite of circumstances by which he contended that it was appropriate for the Cancellation to be revoked. Only some of those circumstances need to be recorded here.

15    The applicant placed considerable reliance upon the circumstances of his personal history. Those circumstances do not make for pleasant reading. Having come to Australia as an infant, the applicant was removed from his mother’s care after she experienced a mental breakdown following the death of her daughter (the applicant’s older sister) from a heroin overdose. Thereafter, the applicant became a ward of the state and was made the subject of various accommodation placements and foster care arrangements. When aged 10 or 11 years, the applicant was placed into the care of a foster parent who sexually abused him, and introduced him to alcohol and drugs. The applicant thereafter developed a serious drug problem. His foster carer was ultimately identified as a paedophile and was taken into custody; but not before waging an armed stand-off with police, during which a shotgun was held to the applicant’s neck.

16    The applicant also led some evidence concerning his health. He is intellectually impaired, and suffers from depression, post-traumatic stress disorder, and anti-social and borderline personality disorder. He is (or, at various times has been) a chronic substance abuser, which has (or may have) resulted in some form of brain injury, memory impact and other similar impairments. As has already been noted, the applicant was made the subject of orders under the Guardianship and Administration Act 1986 (Vic) (to which I shall refer, hereafter, as the “Guardianship Orders”).

17    By his Revocation Submissions, the applicant contended that his criminal history was, at least in part, a consequence of his regrettable personal history. He submitted that “another reason” why the Cancellation Decision ought to be revoked was that much of what he had been subjected to in his youth arose because he had been placed into the care of a paedophile who abused him and introduced him to drugs and alcohol.

18    Additionally, the applicant advanced submissions concerning the impediments that would confront him in the event that he were to return to the United Kingdom (and, in particular, to Scotland, from which he hails). He submitted that, given his intellectual and other impairments—and the fact that he requires the assistance of a legal guardian—he would endure extreme difficulty in navigating (if, indeed, he were at all able to navigate) Scottish social security systems upon which he would inevitably and at least partially be dependent.

The Tribunal’s Decision

19    The Tribunal’s Decision begins with a recitation of background facts peculiar to the applicant. It records that the applicant was brought to Australia in 1974 (then aged 11 months) with his mother, brother and sister; that he has not since travelled outside of Australia; that his mother, brother and sister have all since passed away; and that he has no family connections in Australia and “no meaningful family connections in Scotland”.

20    The Tribunal’s Decision then addresses the applicant’s “very significant history of offending”. It records his extensive history of violent, drug-based and property-based offending, including his convictions for assaulting police, assaulting with a weapon, and causing serious injury. The applicant’s most recent offending—and the convictions that appear to have led to the Cancellation—involved aggravated burglary, intentionally causing injury, theft and drug possession. As the Tribunal recorded in the written reasons supporting its decision, it arose when the applicant entered “…the home of a single mother and in the course of the offence punched the mother in the head several times in the presence of her young daughter”.

21    The Tribunal considered that the protection of the Australian community was a consideration that weighed “…heavily in favour of not revoking the mandatory cancellation of the applicant’s visa”. In turn, that was said to be so because of the applicant’s criminal tendencies, best evidenced by his extensive criminal history. The Tribunal considered that “…the risk of the applicant re-offending must be considered to be high”. En route to that conclusion, the Tribunal had occasion to consider the circumstances that underpinned the applicant’s offending. It made the following observations (errors original, including as to paragraph numbering):

29.    There was substantial evidence presented to the Tribunal regarding the applicant’s personal background as context for the applicant’s offending. The evidence was compelling. In the course of his evidence the applicant told the Tribunal that:

(a)    His sister died as a result of a heroin overdose at the age of 24 and when the applicant was around 8 years of age. Following this incident his mother experienced a mental break down and was placed in a psychiatric institution where she remained until her death in 2007;

(b)    As a result of his mother’s institutionalisation, the applicant was made a Ward of the State and was then the subject of a series of placements in various boys’ homes and foster care arrangements. The applicant gave evidence of the traumatic and unsettled nature of this period in his life. He described having no substantive loving relationship during this period other than with his older brother who he saw occasionally and his mother whom he rarely saw due to her institutionalisation and who was very troubled during this time as a result of her psychiatric illness;

(c)    Due to the chaotic nature of his living arrangements during this period of his life the applicant experienced a very interrupted and limited formal education. The applicant described having been bullied at school and also experiencing difficulty with learning when compared to his peers;

(d)    At approximately 10 or 11 years of age the applicant was placed into the care of a foster parent who was subsequently identified as a convicted paedophile. There was some inconsistency in the evidence regarding the age at which this occurred. Some of the psychiatric assessment materials suggest that the applicant may have been placed into the care of this particular foster parent at around 14 years of age.

(e)    During his time in this foster parent’s care the applicant was repeatedly sexually abused and also plied with alcohol and drugs. Following this, the applicant developed a dependency on drugs. After the police identified the foster parent as a convicted paedophile and while seeking to take the foster parent into custody, a siege took place during which a gun was placed at the head of the applicant. The applicant described in some detail the ongoing anguish he felt in his life which he continues to feel as a result of these events;

(f)    At approximately 14 years of age the applicant’s brother tragically committed suicide. Again, the applicant described the significant anguish this caused him particularly having regard to the special bond he felt towards his brother; and

(g)    He felt ongoing anguish as a result of his mother’s institutionalisation and his inability to have any normal engagement with her. He described loving his mother very much but that due to her psychiatric condition she had not been able to give him the love and attention that might reasonably be expected from a mother.

31.    The details of the applicant’s background as told by the applicant in his oral evidence were not challenged in any material respect by the respondent and the Tribunal accepts the truth of the applicant’s account.

32.    In addition, there was evidence before the Tribunal that the applicant has been diagnosed with:

(a)    a mild form of intellectual impairment;

(b)    a number of mental health conditions including depression, anxiety, post-traumatic stress disorder and anti-social and borderline personality disorder; and

(c)    chronic substance abuse.

33.    There was also some evidence suggesting brain injury, memory impact and other impairments resulting from his extensive use of drugs over his life.

34.    The Tribunal acknowledges that for the purposes of this decision it cannot contradict or go behind any of the applicant’s convictions and examine the facts upon which they were based. However, there is nothing that prevents an applicant from presenting to the Tribunal matters that give context to his convictions.

35.    The Tribunal accepts that the applicant’s personal life story is relevant context in properly understanding his prior criminal conduct. There is no question in the mind of the Tribunal that the applicant has suffered significant trauma and has been forced to deal with very difficult personal circumstances and ongoing health challenges. However the Tribunal notes that the Courts have not accepted these factors as an excuse for the applicant’s offending and notwithstanding these circumstances have, on more than one occasion, sentenced the applicant to very lengthy terms of imprisonment. In imposing significant terms of imprisonment the Courts have acknowledged both the applicant’s personal culpability for his offending and the very serious nature of his crimes. The Tribunal is also of the view that the applicant’s personal circumstances, as tragic and difficult as they are, cannot take away from the very serious nature of his offending.

22    Later, the Tribunal had occasion to refer to the significance of the Guardianship Orders:

41.    It is not possible to undertake a complete assessment of the risk of the applicant relapsing back into drug use and re-offending without making an assessment of the type and quality of support on offer from the [guardian]. The applicant certainly places great reliance on the support being offered by the [guardian]. Indeed, the [guardian] himself has strongly emphasised it in making representations on the applicant’s behalf.

...

44.    Both the applicant and the [guardian] emphasised that as the [guardian] is now an appointed Guardian and Administrator of the applicant he has the capacity to issue legally binding directions to the applicant subject to his obligation to act in the applicant’s best interest. They also emphasised that on this occasion there was a clearer commitment to ensure the applicant received the counselling necessary to address his mental health conditions and a better understanding of the challenges he faces as a result of his mental health conditions and his disabilities.

45.    The Tribunal acknowledges that as the applicant’s legally appointed Guardian and Administrator, the [guardian] is now in a better position to guide and direct the applicant including in respect of accommodation arrangements and medical and health care. However the Tribunal also notes that the [guardian] has provided a significant level of support for the applicant previously, albeit in the absence of a formal Guardianship, and yet despite that support the applicant relapsed back into drug use and reoffended.

23    The Tribunal also approached the question of revocation by reference to the expectations of the Australian community. It found that “…the expectations of the Australian community weigh[ ]in favour of not revoking the mandatory cancellation of the visa.” In doing so, the Tribunal “…had regard to the tragic personal circumstances experienced by the applicant over the course of his life including his difficult and chaotic upbringing, the loss of his sister and brother at an early age, the limited love and support he was able to secure from his mother, his drug dependency, the sexual abuse he suffered as a child, his mental health conditions and mild intellectual impairment.”

24    The Tribunal’s Decision also involved analysis of the “…significant impediments that the applicant is likely to face if he is returned to Scotland.” Amongst others, the Tribunal made the following observations on that score:

…The Tribunal accepts that in the absence of a scheme equal to Australia’s NDIS it is possible that the applicant may have greater difficulty in accessing some level of disability supports. However, the Tribunal is satisfied that the applicant would otherwise be entitled to social support and other health services in Scotland that are comparable to those available to him in Australia. While the Tribunal accepts that the support arrangements in the United Kingdom are complex and somewhat confusing, the Tribunal is not satisfied that the applicant would be denied assistance in navigating those arrangements at least to the degree that they would effectively be denied to him.

25    Ultimately, the Tribunal did not consider that there was “another reason” why the Cancellation ought to be revoked.

26    With that analysis complete, it is convenient to turn to the two grounds that the applicant advances in support of his contention that the Tribunal’s Decision was attended by jurisdictional error.

Ground one: failure to take account of certain matters

27    By the first ground that he advances by way of challenge to the Tribunal’s Decision, the applicant submits that the Tribunal failed to take account of certain, relevant considerations or otherwise exercised its discretion unreasonably. Two such considerations are identified. The first is that, having been placed into the care of a paedophile when he was young, the applicant was the victim of a “breach of the duty of care owed to [him] by the state”. The second is that he is the subject of the Guardianship Orders, which has various “practical and legal implications”.

28    In terms, the ground suggests two species of jurisdictional error. It is convenient to deal first with the allegation of legal unreasonableness. The contention that the applicant advances is that, having regard to the considerations that he lists, it was not legally reasonable for the Tribunal to exercise the discretion reposed in it to not revoke the Cancellation.

29    The principles of legal unreasonableness were conveniently summarised in DLJ18 v Minister for Home Affairs [2018] FCA 1650, [21] (Thawley J) as follows:

The principles with respect to “legal unreasonableness” are also well established:

(1)    The question of whether a decision is legally unreasonable is directed to whether or not the decision or action is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful having regard to the scope, purpose and objects of the statutory source of power:  Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 at [54]- [60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J).

(2)    A decision may be found to be legally unreasonable having regard to the scope, purpose and objects of the statutory source of power:

(a)    because it is “illogical”, but an inference of unreasonableness is not to be drawn only where a decision appears to be irrational:  SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li …(2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ).

(b)    if it “lacks an evident and intelligible justification”:  Li …(2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);

(c)    if it is arbitrary, capricious, lacking in common-sense or plainly unjust:  Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ).

Those observations were not disturbed on appeal.

30    I do not accept that the Tribunal’s conclusion can be impugned as legally unreasonable because of the considerations to which the applicant points. It appears to have been reached in an orthodox way: namely, by weighing competing considerations, the import of which was reasonably open to debate. It cannot be said that the decision not to revoke the Cancellation was illogical, or lacked an evident or intelligible basis, or was otherwise not a conclusion that could reasonably have been drawn.

31    The applicant’s more forceful submission was that the Tribunal’s Decision was jurisdictionally unsound because, in the course of making it, the Tribunal failed to take account of the considerations to which he adverts.

32    In Nguyen v Minister for Home Affairs [2021] FCA 155, [34]-[36] (Snaden J), I made the following observations about the Tribunal’s obligation to consider what is advanced by an applicant seeking to revoke the cancellation of a visa:

There is no doubt that the Tribunal was obliged to consider the submissions that the applicant advanced in support of revocation of the Cancellation: Minister for Home Affairs v Omar (2019) 272 FCR 589, 602-604 [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); DQM18 v Minister for Home Affairs [2020] FCAFC 110, [23]-[34] (Bromberg and Mortimer JJ), [153]-[158] (Snaden J); Navoto v Minister for Home Affairs [2019] FCAFC 135, [86]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Buadromo (2018) 267 FCR 320 (“Buadromo”), 332 [42] (Besanko, Barker and Bromwich JJ). Doing so required engagement in an active intellectual process directed at the representations that were advanced: CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 (“CAR15”), 149-150 [76]-[79] (Allsop CJ, Kenny and Snaden JJ); Buadromo, 332 [42]-[43] (Besanko, Barker and Bromwich JJ).

A finding that a 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”: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ); see also CAR15, 149-150 [76] (Allsop CJ, Kenny and Snaden JJ), GBV18 v Minister for Home Affairs (2020) 274 FCR 202, 219 [32] (Flick, Griffiths and Moshinsky JJ) and CTB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 166, [15] (McKerracher, Kerr and Wigney JJ). In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), the court held (at 604 [47]) that an:

…inference that the [decision maker—in that case, a tribunal] has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.

In assessing whether or not a court should infer that a decision-maker failed to consider a submission or evidence advanced by an applicant, regard must be had to “…the facts of each particular case and the…reasons as a whole[, and t]he reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error”: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [76] (Perram, Murphy and Lee JJ).

33    Determining whether or not an administrative decision-maker took account of something in the course of making a particular decision involves an evaluative judgment, which must be made taking into account the available evidence and reasonable inferences as to all of the facts and circumstances relevant to the decision: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [47] (Griffiths, White and Bromwich JJ). That judgment is formed as a function of impression, resting upon a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations that were made: Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643, 654 [45] (Rares and Robertson JJ, Flick J agreeing in the result).

34    Decision makers (including The Tribunal) are not obliged to recite (or make findings about) every issue that is put before them or considered in the course of making a decision. In Minister for Home Affairs v Buadromo (2018) 267 FCR 320 (Besanko, Barker and Bromwich JJ)—which, like this matter, was a case concerning the application of s 501CA(4) of the Act—the full court (at 332 [46]) made the following observations:

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

35    The applicant complains that the Tribunal did not squarely address that his placement into the care of a paedophile when he was a boy amounted to a breach of a duty of care owed to him by the state. His contention before the Tribunal was apparent enough: he submitted that “another reason” why the Cancellation ought to be revoked was that his criminal offending was the product of his troubled upbringing, which in turn was a function of bureaucratic negligence.

36    On any view, the Tribunal was alive to the fact that the applicant had been “placed into” the care of a paedophile when young. Its reasons record as much, as well as the fact that the applicant had been a “Ward of the State” (above, [21]). Although the Tribunal’s Decision does not, in terms, equate those events with the breach of a duty of care at law, there can be no doubt that the Tribunal was conscious of the relevant, underlying circumstances. I do not accept that there was anything that the applicant advanced as to those circumstances of which it might be said (or inferred) that the Tribunal failed to take account in the course of making its decision.

37    It was not—or, at least, not obviously—the applicant’s case before the Tribunal that “another reason” why the Cancellation ought to be revoked was that he had been the victim of a breach of a duty of care. Rather, it was put that “another reason” lay in the circumstances in which he came to have been placed into the care of a paedophile. Those circumstances were described, in summary form, as a “failure of duty of care by the state”; but it was the circumstances themselves, rather than the label that was conveniently attached to them, that were said to ground the applicant’s submission that his Cancellation ought to be revoked. The Tribunal was plainly alive to those circumstances. From its reasons, it is clear that it understood that the applicant had been placed (that is to say, placed by the state) into the care of a paedophile, and that that was a source of trauma or upheaval that later sounded in (or contributed to) his extensive criminal history. It cannot be inferred that its decision proceeded without consideration of those circumstances.

38    Likewise, it is apparent enough that the Tribunal was conscious of the fact that the applicant is the subject of the Guardianship Orders. Nonetheless, the applicant submitted that he:

…was in a unique position in that he had a disability and by virtue of that disability had been assessed as not being able to make reasonable judgments for himself and thus in need of a guardian. Failing to revoke the cancellation decision would necessarily deprive him of his guardian and would render him vulnerable to making unreasonable judgments for himself.

39    It was said that the Tribunal failed to take account of those implications. During her oral submissions, counsel for the applicant put the contention succinctly: namely that “nowhere in its decision [did the Tribunal] deal with…the fact that [the applicant] was a person who could not make reasonable decisions on his…own behalf”.

40    Again, I am not persuaded that the court should infer any want of consciousness, on the Tribunal’s part, of the contentions that the applicant put about his capacity to make decisions on his own behalf. As his counsel properly acknowledged, it was inherent in the nature of the Guardianship Orders that the applicant was somebody whose capacity to make such decisions was impaired. I do not accept that the court should infer, merely from the Tribunal’s failure to state it, that that obvious consequential reality went improperly unconsidered. All the more is that so given that the Tribunal did make reference (see, for example, above, [21]) to the impairments under which the applicant labours (both generally and in relation to the impediments that he will face in the event that he returns to Scotland).

41    The Tribunal cannot be said to have failed to consider any of the relevant representations that the applicant advanced in support of his campaign to have the Cancellation revoked. Likewise, it cannot be said that its decision not to revoke it was, under the light of those representations, legally unreasonable. The applicant’s first ground of challenge to the Tribunal’s Decision fails.

Ground two: consideration of impediments

42    The second ground advanced by way of challenge to the Tribunal’s Decision concerns the nature of the intellectual disabilities by which the applicant is afflicted. It is said that the Tribunal failed to take account of the nature and impact of his disabilities, and the nature and impact of his “psychological issues and substance abuse problems”. Again, the ground is advanced in two ways: it is said that the Tribunal’s Decision is beyond what it had jurisdiction to make because, first, it was made without consideration of matters that the applicant advanced; and, second, because it was, in light of those matters, legally unreasonable.

43    Again, the applicant’s contention that the Tribunal’s Decision was legally unreasonable on account of the matters that he advanced concerning the nature and impacts of the various impairments by which he is afflicted can be swiftly addressed. Before the Tribunal, the applicant noted that he suffered from various disabilities, ranging from poor literacy and numeracy skills to impaired memory and difficulty learning. Evidence was led about his limited capacity to organise himself, his various anxieties, his low IQ and his developmental disability. It was put that, because of those burdens, the impediments that the applicant will face if he is returned to Scotland will be insurmountable (or otherwise of a nature sufficient to constitute “another reason” justifying the revocation of the Cancellation).

44    The Tribunal was not satisfied that there was “another reason” to revoke the Cancellation. It reached that view having regard to (amongst other things) its assessment of the need to protect the community form the possibility of further offending by the applicant and of the expectations of the community. For reasons equivalent to those identified in respect of the first ground (above, [29]), it cannot be said that, by reason of the matters to which the applicant adverted, the Tribunal’s Decision not to revoke the Cancellation was illogical, that it lacked an evident or intelligible justification, or that it was legally unreasonable in any of the other ways that the authorities recognise. The Tribunal was at pains to explain why it reached the decision that it reached notwithstanding the various disabilities to which the applicant is subject (the ramifications of which it did not doubt). Its reasoning was orthodox.

45    Again, the applicant’s more significant point concerns the extent to which the matters that he identifies factored as considerations of which the Tribunal took account in making its decision. He submits that the Tribunal’s Decision was beyond jurisdiction because it was made without consideration of the realities by which he is daily confronted.

46    As has already been explored, whether that is so or not is a question of fact. The answer depends on whether or not there is an evidential basis upon which the court might properly infer that the Tribunal, when making its decision, did so without considering something that the proper exercise of its jurisdiction obliged it to consider.

47    I am not persuaded that there was anything that the applicant advanced that the Tribunal failed to consider. Again, the Tribunal was not obliged to state in its reasons every contention that the applicant put, nor every snippet of evidence touching upon them: Buadromo, 333 [48] (Besanko, Barker and Bromwich JJ). It is apparent from its reasons that the Tribunal was very much alive to the significant impairments by which the applicant is affected; and, more to the point, that it accepted that they would present significant difficulties for him in the event that he were to return to Scotland. It simply didn’t accept that that was sufficient to qualify as “another reason” to revoke the Cancellation, principally in light of other considerations (including the applicant’s extensive criminal history).

48    Reading the Tribunal’s reasons fairly and as a whole, the court cannot safely infer that any of what the applicant advanced in relation to “the impact of his intellectual disability and psychological conditions” went relevantly unconsidered. Likewise, the decision was not attended by legal unreasonableness as alleged. The second ground of challenge therefore fails.

Conclusions

49    Neither of the applicant’s grounds is made good. The application must (and will), for that reason, be dismissed with the usual order as to costs.

Associate:

Dated:    18 June 2021