Federal Court of Australia

WCJS v Minister for Home Affairs [2021] FCA 1093

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s decision dated 5 February 2020 be set aside.

2.    The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

STEWART J:

INTRODUCTION AND BACKGROUND

1    The applicant seeks judicial review under s 476A of the Migration Act 1958 (Cth) of a decision of the Minister for Home Affairs who refused to grant a visa to the applicant pursuant to s 501A(2) of the Act. The Minister personally exercised powers to set aside a decision of the Administrative Appeals Tribunal which had revoked a decision of a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s visa under s 501(1) of the Act.

2    The applicant came to Australia from Bangladesh in 2007 at the age of 26. He arrived on a student visa and settled in Sydney. He studied Accounting and Hotel Management at TAFE and subsequently obtained a Master’s degree in Commerce and Business. He established himself in the security business, and was employed by a large department store in Sydney as a Deputy Security Manager. He has also had other employment, mainly on the weekends, as a security guard at various events, including at nightclubs.

3    In early 2014, the applicant entered into a domestic relationship with his current partner, a New Zealand citizen. At the time of his visa application, he held a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa.

4    The applicant’s partner subsequently applied for a Skilled – Independent (Permanent) (Class SI) subclass 189 visa, which the applicant joined as a dependant applicant.

5    In October 2016, the Department of Immigration and Border Protection sent to the applicant a notice of intention to consider refusal of his visa application under s 501(1) of the Act. Such a refusal would be on the basis that the applicant “does not satisfy the Minister [or the Minister’s delegate] that the person passes the character test”. The delegate refused the visa in February 2017 and decided that the applicant had failed the character test on the basis that there “is a risk that the person would engage in criminal conduct in Australia” (s 501(6)(d)(i) of the Act).

6    The delegate relied on, amongst other things, the applicant’s criminal record. That record, as reflected in a National Police Certificate dated 9 November 2015 was the following:

(1)    29 October 2010, Downing Centre Local Court, Common Assault (Domestic Violence), without conviction, bond to be of good behaviour for 12 months.

(2)    7 December 2011, Penrith Local Court, Contravene Prohibition/Restriction in Apprehended Violence Order (Domestic), without conviction, no further penalty imposed.

(3)    24 November 2015, Downing Centre Local Court, Common Assault, pending matter.

7    Also before the delegate was a subsequent National Police Certificate, dated 4 May 2016, which did not reflect the third of those matters, indicating that that matter had been finalised without a conviction against the applicant. The evidence is that that matter arose from a road rage-type incident in November 2014 which was ultimately disposed of on 9 March 2016 under the Mental Health (Forensic Provisions) Act 1990 (NSW) (no longer in force) without a conviction being entered against the applicant.

8    In February 2017, the applicant sought merits review of the decision of the delegate in the Tribunal. The Tribunal set aside the delegate’s decision in May 2017 and decided that the applicant’s visa should not be refused on character grounds, and in any event, the discretion to refuse the applicant’s visa should not be exercised against the applicant had a contrary view on the character test been reached.

9    The Tribunal considered that the applicant had sought to create a life for himself in Australia, had established himself in the security business, was partway through a second master’s degree with aspirations of working for a national security organisation, was in a stable domestic relationship, and had plans to marry his partner and have a family. His partner gave evidence in the proceeding, and the Tribunal found that she presented as a stable and solid person and was well-presented, articulate and very supportive of the applicant. His partner has a bachelor of Medical Laboratory Science and has approximately 12 years of employment experience that is relevant to the current position as a Medical Laboratory Scientist at a private hospital in Sydney.

10    Although the Tribunal found that the applicant has had some problems in the past with managing anger and his ability to control his emotions, it accepted that the applicant had an appreciation of his mental health issues and had been engaging in treatment.

11    The Tribunal did not accept the applicant’s claim that Australia’s international non-refoulement obligations, namely the obligation to protect him from being subjected to degrading or inhumane treatment on the basis of his mental health issues if returned to Bangladesh, was a significant consideration. However, it did take into account that his partner would, if necessary, accompany the applicant back to Bangladesh, which would have a severe effect on her in terms of assimilating and being accepted into the culture.

12    On the whole of the evidence, the Tribunal found that the applicant’s visa should not be refused on character grounds, and in any event, the discretion should be exercised in a way that would not refuse the applicant’s visa had a contrary view on the character test been reached.

THE STATUTORY FRAMEWORK

13    Section 501A of the Act provides that:

501A    Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister—natural justice applies

(2)     The Minister may set aside the original decision and:

(a)     refuse to grant a visa to the person; or

(b)     cancel a visa that has been granted to the person;

if:

(c)     the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)     the person does not satisfy the Minister that the person passes the character test; and

(e)     the Minister is satisfied that the refusal or cancellation is in the national interest.

…

(5)     The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)     The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

14    The character test is defined by s 501(6) of the Act. Relevantly, a person does not pass the character test on the grounds of s 501(6)(d)(i) if, in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.

15    By reason of the Minister’s decision pursuant to s 501A(2) of the Act, s 501F was invoked. Section 501F(3) provides that if the applicant holds another visa, and that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of the subsection, the Minister is taken to have decided to cancel that other visa.

16    Consequently, the applicant’s New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa was cancelled upon the Minister’s decision on 5 February 2020.

THE MINISTER’S DECISION

17    The Minister decided that the applicant did not pass the character test (on the grounds of s 501(6)(d)(i)), and that it was in the national interest to refuse his visa.

18    The Minister’s statement of reasons cover a range of considerations. Relevantly for this appeal, the Minister considered that the applicant’s assault conviction in October 2010 (which was subsequently appealed with the result that no conviction was recorded), the contravention of an apprehended violence order in December 2011, a road rage incident in November 2014 and “some 21 or so entries” regarding the applicant recorded by New South Wales police in its Computerised Operational Policing System (COPS) report supported the Tribunal’s finding that there is “something of a tendency that the applicant has displayed in the past with regard to his reactions to situations against a background of perhaps some mental health problems, in particular, depression”.

19    The Minister then concluded that the applicant was at risk of reoffending because the applicant had not undertaken any “significant treatment” of the mental health issues that have been the primary cause of his criminal offences. The Minister further noted that “the instances where he has undertaken treatment have been in the context of his visa application, giving little confidence in the sincerity of this commitment to addressing these issues.”

20    Whilst the Minister accepted that the applicant’s current relationship was a significant stabilising influence – as were his personal social networks, employment, study and future ambitions – the Minister considered that the applicant’s unaddressed mental health issues, lack of insight or remorse into his behaviour, and lack of regard for the laws of Australia amounted to a “real risk” that he would engage in further criminal conduct.

THE GROUNDS OF REVIEW

21    In February 2021, the applicant brought the present application to quash the Minister’s decision. The applicant sought to rely on an amended application. There was no objection to the amendment by the Minister. I therefore granted leave to the applicant to rely upon the amended application.

22    The applicant relies on four grounds of review in the amended originating application.

23    Ground 1 contends that the Minister failed to give proper, genuine and realistic consideration to the evidence before him, and ground 2 contends that the Minister’s decision was legally unreasonable. Both grounds are particularised as follows:

a)     The Minister failed to identify the nature of the criminal conduct that the Applicant was supposedly at risk of committing.

b)     The Minister’s conclusion in relation to the Applicant’s supposed failure to take medication to address his mental illness lacked any proper basis.

c)     The Minister’s conclusion in relation to the Applicant’s supposed insincerity in treating his mental illness lacked any proper basis.

d)     The Minister’s reasons were drafted more than a year before the Minister made his decision, resulting in the Minister failing to consider and/or take into account events subsequent to the drafting of his reasons but prior to his decision.

e)     The Minister failed to adequately take into account the Applicant’s change in character since the date of his convictions.

f)     The Minister took into account the Applicant’s charge with common assault in 2014 contrary to the Applicant’s entitlement to the presumption of innocence.

24    Ground 3 contends that the Minister made determinations contrary to the applicant in the absence of evidence and relies on particulars (b) and (c) above.

25    Ground 4 contends that the Minister exceeded his statutory power in s 501A(2) of the Act by relying on facts and matters that could have been made to or put before the Tribunal, but were not. The particulars to ground 4 are the following:

(a)    The Minister relied in his decision on the fact of the Applicant’s charge with the offence of common assault in 2014, but this was not relied on in the Minister’s submissions to the Tribunal.

(b)    The Minister relied in his decision on the Applicant’s supposed failure to comply with treatment recommendations for his mental health issues as set out in the letter from Adrian Hall dated 15 February 2017, but this was not relied on in the Minister’s submissions to the Tribunal.

(c)    The Minister relied in his decision on the suggestion that the opinion of Sam Borenstein dated 6 February 2017 would have been different had Mr Borenstein been aware of the Applicant’s supposed failure to comply with treatment recommendations for his mental health issues as set out in the letter from Adrian Hall dated 15 February 2017, but this was not relied on in the Minister’s submissions to the Tribunal.

26    Since there is significant overlap in the particulars to grounds 1 to 3, it is convenient to consider those grounds together.

REVIEW GROUNDS 1 TO 3

Particular (a)

27    Contrary to the conclusion of the Tribunal, the Minister concluded that there was a risk that the applicant would engage in criminal conduct in the future. The applicant submits that the Minister committed jurisdictional error by not identifying what criminal conduct there was a risk of the applicant engaging in.

28    The Minister concluded that there was a risk that the applicant would engage in criminal conduct in the future on the basis that the applicant’s previous offending had been caused by his mental health issues, and that his mental health issues had not been addressed.

29    The applicant relies on Anees v Minister for Immigration & Border Protection (No 2) [2020] FCAFC 28 at [10] per Bromberg, Kerr and Anastassiou JJ:

However where, as here, it is implicitly accepted that the actuality is that the visa holder does not pose a threat and would do so only if an identified contingency were to be realised, for such reasoning to be analytically sound it behoves the decision-maker to assess the likelihood that the condition may be realised. Without an assessment of that likelihood, the apprehension of risk founded upon the supposed contingency is no more than an acknowledgement that it is possible that the contingency may arise again in the future. The question for the Tribunal was not to conceive of what might happen on the basis that “anything is possible”, but to consider whether the Appellant posed a risk of reoffending. Given that the Tribunal’s reasoning in this regard was predicted on the realisation of the contingency, it could not rationally arrive at a conclusion about that risk without considering and assessing the risk the contingency would arise.

30    The applicant submits that there is nothing in the Minister’s decision to indicate that the Minister give any consideration at all to how likely it was that the applicant would find himself in a similar situation to that which pertained in 2009. The applicant submits that the evidence, which the Minister accepted, was that the applicant was in a stable, long-term relationship, which would suggest that no risk of the applicant being in such a situation again. On this basis the applicant submits that the contingency which might give rise to the realisation of the risk of reoffending will not arise, or in any event the risk of it arising was not assessed by the Minister, with the result that the finding that there was a risk of the applicant reoffending was not adequately considered or was legally unreasonable.

31    The Minister, however, dealt expressly with the submission that the applicant’s offences had taken place in the context of a volatile relationship with his former partner which ended in 2013. The Minister reasoned as follows:

51.     I accept that [the applicant’s] recorded offences occurred in the context of what was described by the AAT as a “turbulent relationship”. I consider it was open to [the applicant] to respond to difficulties in his intimate relationship in any number of ways that did not involve domestic violence. As such, I do not accept that the relationship itself was a cause of [the applicant’s] offending. I find instead that this relationship was one instance of a stressful situation to which [the applicant] has responded in an aggressive manner. While the relationship may have ended, I find it likely that [the applicant] will face other stressful situations in his life, and consider that there remains a risk he will respond to these situations in an aggressive or abusive manner.

32    It was thus not the relationship, but rather stressful situations, that the Minister regarded as being the “contingency” (being the word used in Anees) to him reoffending. This is also apparent from other reasoning of the Minister:

74.     I acknowledge that [the applicant] has made a positive impact on the people who know him personally, and he has been observed to remain calm in potentially violent situations in the course of his security employment. I also acknowledge that he has made a positive impression on his general medical practitioner, then of two months duration. Nevertheless, his criminal and other serious conduct evidence a history of violent and aggressive behaviour, which mental health professionals have linked to hypervigilance and extreme sensitivity to interpersonal interactions as a result of PTSD, and depression leading to psychotic episodes.

33    In Anees the identified “contingency” which was regarded as giving rise to more than a minimal or remote chance that the visa applicant in that case would reoffend was if he was put in a situation where he formed the view that someone or something requires attention above all else and regardless of the consequences to others (at [7]-[9]). Since the Tribunal, whose decision was subject to review in that case, had not considered the likelihood of that situation arising again it was held that the Tribunal’s reasoning to the conclusion that there was a risk of the visa applicant reoffending was analytically unsound – “it could not rationally arrive at a conclusion about that risk without considering and assessing the risk that the contingency may arise” (at [10]).

34    The present case is quite different because the Minister expressly identified that he considered it likely that the applicant would face other comparable stressful situations in his life. Such a finding could legitimately be based on human experience. The applicant criticises the Minister’s reasoning on the basis that the future stressful situations were not precisely identified and that the reasoning simply does not provide a logical basis for the ultimate finding about a risk of criminal conduct. However, I do not consider that it was necessary for the Minister to go to those lengths or to that detail. The applicant’s criticism, in my assessment, invites the Court to stray impermissibly into merits review.

35    In the circumstances, I am not satisfied that particular (a) is made out.

Particulars (b) and (c)

36    Particulars (b) and (c) concern the Minister’s conclusions that the applicant had “not undertaken any significant treatment of his mental health issues that have been the primary cause of his criminal offences” and that he had little confidence in the sincerity of the applicant’s commitment to addressing these issues. Because of the overlap between these particulars it is convenient to consider them together.

37    To consider these complaints it is necessary to identify the evidence of the applicant’s mental health issues and treatment in some detail. It is convenient to do that chronologically.

Original diagnosis

38    The applicant was diagnosed with depression in 2009, and has been in and out of treatment for mental health issues since then. That is apparent from a report of Sam Borenstein, a clinical psychologist, in February 2017, to which I will return. That report also states that the applicant’s psychological health was at its worst in 2013 when the relationship with his then-partner broke down. The applicant made an attempt on his life and was admitted to hospital, but he has had no contact with that former partner since 2013.

Associate Professor Woods, forensic psychologist

39    In November and December 2015 and in January 2016, Associate Professor Stephen J Woods, a forensic psychologist, had consultations with the applicant. Professor Woods produced a detailed report, dated 17 February 2016, to be tendered as evidence in response to the applicant’s Common Assault charge arising from the incident in November 2014 which was ultimately dealt with under mental health legislation. The report subsequently formed part of the applicant’s visa application.

40    Professor Woods noted that the applicant’s medical records reveal that he was diagnosed with depression in 2009 and that he was continuing to be treated, albeit inconsistently due to poor compliance and reluctance to take medication at the time of the offence, i.e. November 2014. Professor Woods was of the opinion that the applicant suffered from post-traumatic stress disorder (PTSD), secondary to physical and emotional abuse inflicted from early childhood with co-morbid dysthymic disorder which had progressed to major depressive disorder with suspected psychotic episodes.

41    Professor Woods noted correspondence from Dr Cai of the UTS Health Service, dated 4 September 2013, which stated that the applicant had been a patient of his for the last five years during which time he was suffering from depression which was managed with antidepressants. Professor Woods also noted correspondence from Dr Ma, dated 8 May 2014, which stated that the applicant was under his treatment and guidance for deep depression and anxiety.

42    A detailed treatment plan was attached to Professor Woods’s report, which recommended that the applicant be referred to a psychiatrist to provide ongoing treatment and monitor medication compliance, as well as a psychologist. The report also noted that Professor Woods had asked the applicant to attend for consultation and monitoring with his referring general practitioner, Dr Ma, which the applicant had done and had been referred by Dr Ma to a mental health provider. That was consistent with Professor Woods’s opinion on beneficial treatment.

Mr Borenstein, clinical psychologist

43    On 6 February 2017, Sam Borenstein, the clinical psychologist mentioned above, prepared a report in the context of the applicant’s visa application. Mr Borenstein was of the opinion that the applicant suffers from major depression (recurrent type) and complex PTSD, and was experiencing a severe depressive episode with symptoms of severe anxiety. However, Mr Borenstein did not believe that the applicant poses any risk to society, and the likelihood of the applicant coming to the attention of police and the courts was “extremely low”.

44    Mr Borenstein noted that at the time of his consultation with the applicant, namely 2 February 2017, the applicant had recently consulted Adrian Hall, a psychologist, but that he was not currently taking antidepressant medications as he did not feel their benefit. Mr Borenstein further noted that the applicant was undertaking psychological treatment and learning more effective ways of responding to the circumstances surrounding his previous offending behaviours.

45    Mr Borenstein concluded that the applicant would benefit from ongoing psychological treatment of the sort that he was currently engaged in with Mr Adrian Hall. He expressed the opinion that psychological treatment would allow the applicant to manage the propensity to relapse into major depression, and assist in the management of anxiety symptoms and breakthrough PTSD symptoms.

Mr A Hall, psychologist

46    The applicant also submitted a letter to the Department dated 15 February 2017 from Adrian Hall, a psychologist. Mr A Hall recorded that the applicant had been referred to him by a general practitioner under a Medicare Mental Health Treatment Plan and that he had seen the applicant for the first time on 30 August 2016. The applicant had missed his following appointment (in September 2016) but reappeared for an appointment on 26 October 2016. At that appointment, Mr A Hall had urged the applicant to attend therapy on a consistent basis in order to maximise its usefulness, but that the applicant had not returned until 14 February 2017 when the same symptoms were in evidence.

47    Mr A Hall expressed the opinion that the applicant suffers from extremely severe depression and anxiety and had previously been prescribed medication to assist with his mood disorder and sleep. Mr A Hall noted that it was unclear whether the applicant intended to take the medication and that he had stressed to the applicant that “he should reconsider his decision not to take previously prescribed medication or at least seek the opinion of a psychiatrist if previous medication was ineffective”. Mr A Hall also stressed that the applicant should be attending therapy consistently.

48    Mr A Hall further noted that detention would be a cruel and inhumane option given the events of the applicant’s childhood and the likelihood of the aggravation of his PTSD, anxiety and depression. Mr A Hall said that he did not regard the applicant as a violent person or a threat to society.

February to August 2017

49    The Minister’s reasons (at [57]) acknowledge that the applicant was held in immigration detention between 20 February 2017 (because his visa had been cancelled by the delegate a few days earlier) and 11 May 2017 (when the Tribunal reversed the decision of the delegate). The Tribunal’s hearing took place when the applicant was in detention. The Tribunal noted (at [29]) that the applicant had been undergoing psychological counselling and taking prescription medication for depression while in detention.

50    The evidence before the Minister, which is acknowledged in his reasons, was also that the applicant was out of Australia from 10 June 2017 to 24 August 2017.

51    Thus, aside from when he was in detention, there was little opportunity between the middle of February and the end of August 2017 for the applicant to undergo psychological treatment.

Mr A Hall’s second letter

52    On 25 February 2018, Mr A Hall wrote a subsequent letter addressed to “To whom it may concern” which noted that he had lost contact with the applicant since his previous report but that the applicant had “recently returned and his symptoms, if anything, appeared worse”. The applicant had told Mr A Hall that he had returned to Bangladesh after learning of the death of his mother and that he had been in immigration detention for a period of three months which he described as “hell”. It was thus well explained why Mr A Hall had “lost touch” with the applicant in that period.

Dr W Hall, general practitioner

53    On 25 April 2018, Dr W Hall, general practitioner, wrote a letter in support of the applicant’s “appeal against deportation”. Dr W Hall reported that he had first seen the applicant in February 2018 and that he had got to know him from seeing him in follow-up appointments. Dr W Hall reported that the applicant “has just started treatment for depression this week, and has had his first appointment with a psychologist to plan for treatment of his anxiety and posttraumatic stress.” Dr W Hall said that from his knowledge and experience of caring for the applicant over the preceding two months, he could see no reason for suspecting that it is any more likely that the applicant would engage in criminal conduct than any other person, and that he had always found him to be polite and respectful, even when under considerable stress.

The Minister’s reasons

54    I turn now to the Minister’s reasons on this issue. For the most part they are to be found in the section headed “Rehabilitation”. It is well to emphasise at the outset that the Minister’s reasons for decision are to be read fairly and not with an eye keenly attuned to the detection of error.

55    The Minister noted (at [55]) that at the time of the AAT finding in May 2017, the applicant had attended for therapy on only three occasions over a period of some five months, which was “sporadic at best, and not in line with the recommendations of the treating psychologist, Mr A Hall.” That was a reference to the three sessions with Mr A Hall between 30 August 2016 and 14 February 2017.

56    The Minister said (at [56]) that “[i]n addition to his failure to attend therapy consistently on the advice of his psychologist”, he considered the applicant’s decision not to take prescribed medication to address his mental health issues “to be further evidence of his failure to comply with all aspects of treatment, as recommended by Associate Professor Woods.” It is to be observed that Professor Woods’s “treatment plan” back in February 2015 was proposed on the basis of being a plan that the court might require the applicant to follow. There is nothing to indicate that the court in fact adopted that approach.

57    The Minister noted (at [57]) that the Tribunal had observed that the applicant “has been engaging in treatment whilst at Villawood”. The Minister acknowledged (at [58]) that the applicant had “engaged in some form of treatment over the three months he was in detention” and added that he did not have any reports before him. Significantly to the applicant’s case, the Minister appears to have overlooked that the Tribunal found (at [29]) that whilst in detention the applicant had been “undergoing psychological counselling and taking prescription medication for depression.” I return to this below.

58    After noting that the Tribunal took the psychological reports into consideration and found them to suggest that the risk of the applicant reoffending would not exist or, if it did, only to a very slight degree, the Minister noted (at [59]) that Mr Borenstein “provided an opinion on the likelihood of [the applicant] reoffending in his report”. The Minister went on to say (at [60]) that he considers that Mr Borenstein’s opinion was based in part on his belief that the applicant had engaged in psychological treatment, and “he may have formed a different view had he been aware that [the applicant’s] engagement in treatment had been sporadic, and he was not following the recommendations of Mr Hall”.

59    There is, however, nothing in Mr Borenstein’s 10 page report to indicate that he thought that the applicant had been attending on Mr A Hall regularly, or other than sporadically. His report mentions Mr A Hall only twice, once saying that the applicant had “recently consulted” Mr A Hall (which was perfectly accurate) and later saying that the applicant “would benefit from ongoing psychological treatment of the sort he is currently engaged with Mr Adrian Hall psychologist in Miranda”. The Minister’s conclusion as to the unreliability of Mr Borenstein’s opinion is accordingly nothing more than speculation.

60    The Minister concluded (at [66]) that the applicant had not been undertaking regular treatment for his mental health issues since his release from immigration detention in May 2017. He noted that the applicant did not resume treatment following the trauma he experienced in relation to the death of his mother for at least six months after returning to Australia, and his return to treatment appears to have been in the context of his visa application.

61    Overall, the Minister did not find there to be any indication that the applicant had undertaken any significant treatment of the mental health issues that had been the primary cause of the criminal offences (at [67]). Furthermore, he noted the instances where the applicant had undertaken treatment had been in the context of his visa application, “giving little confidence in the sincerity of his commitment to addressing these issues.”

62    The Minister’s suspicion of the applicant’s sincerity in his stated commitment to addressing his mental health issues on the basis that he had returned to treatment only in the context of his visa application is, in at least one respect, unfair. That is that the Minister appears to have overlooked that the letter of Dr W Hall dated 25 April 2018 records that the applicant began seeing Dr W Hall in February 2018 for severe acute lower back pain. It was through the process of treating him for that, that he got to know the applicant and got him to re-commence his treatment for depression including seeing a psychologist, Mr A Hall, again. On the evidence before the Minister, that is the context of the applicant resuming treatment, rather than the fact of his visa application.

63    As the Minister acknowledges in his reasons (at [62]), the Department’s notice of intention to consider setting aside the decision of the Tribunal and refusing the applicant’s visa was dated 26 March 2018 which post-dated the applicant’s resumption of treatment with Dr W Hall and Mr A Hall. The Minister pointed to the reference in Mr A Hall’s second letter, dated 25 February 2018, to the applicant’s “appeal” from which he inferred that Mr A Hall’s letter had been prepared in the context of the applicant’s visa application. It is not apparent what Mr A Hall was referring to, but it could not have been the visa cancellation process of which the applicant was at that time apparently unaware.

64    Also weighing against the Minister’s suspicion that the applicant is not sincere in dealing with his mental health issues is the fact, apparently overlooked by the Minister, that the applicant commenced treatment back in 2009, and regularly consulted medical professionals throughout the period from then until he was taken into detention in February 2017.

65    The Minister noted (at [69]) that the letters from Mr A Hall indicate that the applicant “has not complied with recommended treatment for his mental health issues, such as consistent attendance at counselling or taking prescribed medications.” As such, the Minister did not accept “the finding that he is not a risk of reoffending.”

66    In his second letter dated 25 February 2018, Mr A Hall made no reference to the applicant not taking his medication. In light of the fact that this matter had been addressed in the previous letter and that the second letter was evidently modelled on the earlier letter, counsel for the applicant submits that it should be inferred that the applicant was taking his medication as he had done while in immigration detention.

67    Counsel for the applicant submits that not only was there was no evidence that the applicant had not followed Mr A Hall’s recommendation regarding medication or that the application was not actually taking his medication after February 2017, but that the AAT finding and second letter of Mr A Hall are actually evidence to the contrary, which the Minister appeared to overlook.

68    I accept that the decision of the Tribunal which recorded that the applicant had been taking antidepressant medication whilst in detention is evidence apparently overlooked by the Minister, but I do not accept that it can be inferred from the fact that Mr A Hall in his second letter did not refer to the applicant not taking his medication, that he was taking his medication. However, equally, and perhaps more so, it cannot be inferred from Mr A Hall’s second letter that the applicant was not taking antidepressant medication. The letter notes, as the first letter had done, that Dr Rajan had advised Mr A Hall that he had prescribed medication to assist with mood disorder and sleep. The first letter stated that it was unclear to Mr A Hall whether the applicant intended to take the medication. The second letter said nothing on that point. I do not see a reasonable basis to infer from that that the applicant was not taking medication.

69    In summary, the errors in the Minister’s reasons on the issues raised by particulars (b) and (c) are the following.

70    First, the Minister appears to have regarded Professor Woods’s treatment plan in February 2015 as advice to the applicant that should be followed by him, whereas in fact it was a proposal to the court. The Minister thus criticised the applicant for not following a treatment plan that was not shown to have been adopted by the Local Court or advised to the applicant.

71    Secondly, although the Minister acknowledged that the applicant “had engaged in some form of treatment” when he was in detention, the Minister did not credit the applicant with having undergone psychological counselling and having taken prescription medication for depression when he was in detention. On that basis, the Minister wrongly criticised the applicant for not having undertaken psychological counselling and not having taken prescription medication. The Minister also made the finding (at [67]) that there is no indication that the applicant had “undertaken any significant treatment of the mental health issues that have been the primary cause of his committal offences” and the finding (at [127]) that the applicant had “not engaged with treatment for the mental health issues that have contributed to his offending being behaviour and aggressive conduct”. Those are critical factual findings without foundation in the evidence.

72    Thirdly, the Minister discounted the opinion of Mr Borenstein that the applicant does not pose a risk to society and the likelihood of him coming to the attention of the police and the courts was “extremely low” on the basis that Mr Borenstein may have come to a different opinion if he had known that the applicant’s engagement in treatment had been sporadic and that he was not following the recommendations of Mr A Hall, where that was mere speculation without any foundation in Mr Borenstein’s report. The Minister’s factual finding that Mr Borenstein may have come to a different opinion is without foundation in the evidence.

73    Fourthly, the Minister was suspicious of the applicant’s sincerity in his treatment but appears to have overlooked years of early treatment apparently sought and received by the applicant and concluded that the applicant had returned to treatment only in the context of his visa application when there was no proper justification for that.

74    Fifthly, the Minister erred in concluding that the second letter from Mr A Hall indicated that the applicant was not complying with recommended treatment such as consistent attendance at counselling or taking prescribed medications.

75    Whether or not these identified errors by the Minister might amount to jurisdictional error may depend on any other errors also made by the Minister. For that reason I will consider the other particulars before considering the effect of these errors on the Minister’s decision.

Particular (d)

76    Particular (d) focuses on the delay between the drafting of the Minister’s reasons and the Minister’s decision. In particular, it draws attention to the statement that the applicant “has not been found guilty of an offence since 7 December 2011, a period of approximately seven years”, when, in fact, the period between the applicant’s last conviction and the Minister’s decision was eight years and two months.

77    Related to that, the draft decision that was provided to the Minister was pre-dated “2019” at the place provided for the Minister to sign, but that was crossed out and changed to “2020” in manuscript. The applicant submits that that is suggestive of the decision being drafted one year prior to it being issued. As a consequence, the applicant submits, the Minister will necessarily not have taken into account any relevant matter occurring between early 2019 and early 2020, including the material facts that the applicant had continued to avoid any criminal conduct, and the continuation of a stable and supportive relationship of six years.

78    The Minister submits that the applicant knew that he had received no decision and if he wanted to provide any further evidence or submissions he could have done so, and that the Minister appears to have accepted or assumed that the applicant’s criminal record remained unaltered and that the applicant continued to have a stable relationship with his partner. The Minister also submits that he clearly appreciated that he was making the decision in 2020 since that is the date that is given in manuscript on the decision record.

79    The Minister’s submissions on this issue are not to the point. First, there was no further evidence for the applicant to give with regard to no further criminal offences and his ongoing stable relationship – what he complains of is that those factors were not given their true worth in the assessment process because they were assessed as ongoing for a year less than they in truth were.

80    Secondly, I accept, and it is apparent from his reasons, that the Minister accepted that the applicant had no criminal convictions after December 2011 and that he understood that the applicant continued in a stable relationship with his partner. The Minister also acknowledged (at [127]) that the applicant had committed no further offences since the decision of the Tribunal in May 2017. The point, though, is whether the periods of time for each of those significant factors were properly assessed and therefore given their true value. The Minister stated that it was “a period of approximately seven years” since the applicant had last been found guilty of an offence, whereas it was in fact more than eight years. It does not appear that that mistake with regard to the period of time was also attached by the Minister to the assessment of the period of the applicant being in a stable relationship.

81    I accept the Minister’s submission that the error of more than a year with respect to the period of time since the last conviction is not shown on its own to be material to the decision. However, it is something which is required to be considered in combination with other errors in the Minister’s reasons.

Particulars (e)-(f)

The submissions

82    Particulars (e)-(f) assert that the Minister failed to adequately take into account the applicant’s change in character since the date of his convictions, and failed to take into account the presumption of innocence. In particular, the applicant submits as follows:

(1)    The applicant had not committed any further offences; by the time of the Minister’s decision, nine years had passed without any further offences being committed (noting that the conviction in December 2011 was in respect of conduct in April 2010).

(2)    The applicant had entered into a long-term, stable relationship, which the applicant submits is a particularly significant factor in circumstances where the offences in 2009 and 2010 occurred in the context of a volatile previous relationship.

(3)    The applicant had established himself as a person in the security business, where he regularly encountered situations of conflict, but nevertheless came to be held in high regard over a substantial period and achieve success.

(4)    Prior to being taken into immigration detention, the applicant had almost certainly secured employment with a large financial organisation in a relatively junior role, as a first step to becoming employed in the financial sector.

83    A critical factor on which the Minister relied in concluding that the applicant remained at risk of engaging in criminal conduct was the fact of his being charged with an assault offence in 2014. The applicant submits that the presumption of innocence prevents the Minister relying on the mere fact that a person has been charged with an offence as being indicative that the person has done anything wrong: Dalla v Minister for Immigration and Border Protection [2016] FCA 998; 70 AAR 141 at [25]-[29] per Logan J.

84    In relation to the 2014 assault offence, it appears that the applicant was dealt with under s 32(1)(a)(iii) of the Mental Health (Forensic Provisions) Act . At the relevant time (being February 2016), this provided as follows:

32     Persons suffering from mental illness or condition

(1)     If, at the commencement or at any time during the course of hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a)     that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

…

(iii)     suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person,

(b)     that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to dealt with the defendant in accordance with the provisions of this Part than otherwise according to law,

the Magistrate may take the action set out in subsection (2) or (3).

(2)     The Magistrate may do any one or more of the following:

(a)     adjourn the proceedings,

(b)     grant the defendant bail in accordance with the Bail Act 2013,

(c)     make any other order that the Magistrate considers appropriate.

(3)     The Magistrate may make an order dismissing the charge and discharge the defendant:

(a)     into the care of a responsible person, unconditionally or subject to conditions, or

(b)     on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both, or

(c)     unconditionally.

85    The applicant submits that there is nothing in the section regarding whether the charge was well-founded or not, and by relying on the fact of the charge against the applicant, the Minister’s decision falls squarely within the type of impermissible reasoning identified in Dalla. Further, the Minister’s task pursuant to s 501(6)(d)(i) of the Act was to assess the risk that the applicant would engage in “criminal conduct” in the future; conduct cannot be considered “criminal” unless a person would be convicted in respect of it in a criminal court. Therefore, it is submitted, if the applicant were to again be dealt with under the successor to the Mental Health (Forensic Provisions) Act, that would not be criminal conduct.

86    Counsel for the Minister seeks to distinguish Dalla from the present case on the basis that Dalla involved conduct which was relied upon to establish “breaches of law”, whereas in this case, the 2014 allegations were not assumed by the Minister to amount to any breach of the law or to give rise to a conviction. Further, the Minister was entitled to refer to “dropped” charges as “background material” or a “historical observation”: DOY17 v Minister for Immigration and Border Protection [2019] FCA 1592 at [23], [26]-[27].

The Minister’s reasons

87    It is necessary to first identify just how the Minister used the 2014 assault charge in his reasons.

88    The Minister had regard to the events in question under the heading “Other conduct” in the overall context of considering whether the applicant passes the character test as defined by s 501(6)(d)(i) of the Act, i.e., that in the event that the applicant were allowed to remain in Australia there is a risk that he would engage in criminal conduct in Australia. The “Other conduct” was considered after the Minister had considered the applicant’s “Criminal conduct” being the common assault conviction in 2010 and the finding of a contravention of an apprehended violence order in 2011.

89    The Minister’s reasons stated the following:

22.     I note that the AAT decision record of 11 May 2017 indicates [the applicant] is also alleged to have been involved in other conduct of concern since the offences described above. He was charged with common assault following a road rage type incident on 18 November 2014. The court proceedings did not proceed to a finding of guilt, and the matter ‘was dealt with under the mental health legislation, based on a medical report of a psychologist who examined the applicant and considered that he had a brief episode, perhaps, of a psychotic kind.’

23.     While I acknowledge that no finding of guilt was reached in the above matter, I note that [the applicant] was considered to have had a psychotic episode, which was at least partly responsible for his being involved in a situation of conflict.

…

28.     I acknowledge that the abovementioned incidents are allegations only. Nevertheless, I agree with the finding of the AAT that these allegations ‘do support something of a tendency that the applicant has displayed in the past with regard to his reactions to situations against a background of perhaps same mental health problems, in particular, depression.’

90    At [87], in the context of considering the stabilising influence of the applicant’s relationship with his current partner, the Minister noted that the applicant “previously committed offences at times he was in employment, and was in the company of [his partner] when he was charged with an assault offence in 2014.”

91    At [91], with reference to the Tribunal concluding that the risk of the applicant reoffending “is not one which [it] consider exists” having regard to various circumstances of the applicant including his living arrangements, and his relationship with his partner, his aspirations and his achievements, the Minister stated the following:

While the other circumstances of [the applicant’s] life referred to by the AAT may be considered positive, I do not consider them central to the risk of his offending, and note that many of these circumstances existed at the time he was charged with offences in 2014.

92    Finally in relation to the character test, at [95] the Minister took “the above into account” (i.e., the several incidents of conduct including the one in question) and found that if the applicant were permitted to remain in Australia there is an ongoing risk that he would engage in criminal conduct in Australia. On that basis, the Minister reasonably suspected that the applicant does not pass the character test as defined by s 501(6)(d)(i) of the Act.

93    At [119], in the context of considering the expectations of the Australian community and in response to a submission on behalf of the applicant that the 2014 conduct was not proven to be an offence in a court of law, the Minister stated that he accepted the findings of the Tribunal “that this is one of many incidents indicative of [the applicant’s] tendency to react to situations in an aggressive and/or abusive manner, and this tendency contributes towards his risk of further offending.” The Minister concluded in this section (at [137]) that the Australian community would primarily be concerned with the risk of the applicant committing further offences in Australia.

94    At [161], in the context of considering the impact of victims, the Minister noted that the applicant had not previously met the person he was alleged to have assaulted in 2014 and that the applicant “is unlikely to do so again”, i.e., is unlikely to assault the person again.

95    It is thus apparent that the conduct in 2014 was of significance in the Minister’s reasons. He referred to it in support of his conclusion that there is an ongoing risk that the applicant would engage in criminal conduct in Australia and that he thus does not pass the character test and that the Australian community would be concerned about his risk of reoffending.

The evidence

96    The significance that the Minister placed on that conduct makes it necessary to identify the evidence before the Minister as to the nature of that conduct.

97    In a statutory declaration in November 2016 the applicant explained the incident in question. It occurred on 18 November 2014. His partner was driving a car in which he was a passenger when someone in another car “started tailgating her”. The way it is told by the applicant, it was the driver of the other car who was the aggressor. The applicant swapped places with his partner and took over driving their car. There was further aggressive behaviour from the other driver. The applicant then pulled over, but the other driver also pulled over. The applicant got out of his car and confronted the other driver who was still seated in his car. The other driver grabbed the applicant’s hand and there followed a scuffle while the applicant tried to free himself.

98    The applicant explains that he was charged with common assault, but the charge was dealt with under the Mental Health (Forensic Provisions) Act as explained. The applicant says that at the time of the offence his mental health was particularly bad. He was extremely depressed and had withdrawn to the point that he did not go out unless it was absolutely necessary. He was also dealing with the death of his uncle at that time. He says that he was so depressed that his partner had gone to fetch him from work because she was concerned about him, and the incident occurred when they were driving back after she had picked them up.

99    The applicant’s partner also gave evidence by way of a statutory declaration dated November 2016 about the incident in question. Her description of the incident is consistent with the applicant’s description. She also tells of how it was the other driver who was the aggressor, including by throwing a bottle of water at their car and shouting abuse. She says that at no point did the applicant threaten or challenge the man in the other car. After they had pulled over and the other car pulled over behind them, she says the following occurred:

[The applicant] got out of the car and walked over to the other man, who was still sitting in his car and making boxing fists aimed at [the applicant]. … I witnessed [the applicant] say something to the man and then point is finger at the other man. I then saw the other man grabbed his hand. At that point there was more shouting and [the applicant] reached into the car. There was a very brief struggle while, as it appeared to me, [the applicant] was trying to free his hand. I did not see either [the applicant] or the other man actually throw a punch. After a very brief period of arguing with the other man [the applicant] returned to our car.

100    Professor Woods, however, records in his report that the applicant and his partner had given different accounts when he saw the applicant at the end of 2015 and his partner at the beginning of 2016. Although the applicant gave an account which is largely consistent with the account he subsequently gave in his statutory declaration, Professor Woods records that upon questioning the applicant acknowledged that he had no clear memory of the incident or indeed much of the day in question. The applicant had said that he had not slept for two days prior to the incident, he was in a lot of emotional pain, forgetting things and crying a lot.

101    The applicant’s partner had told Professor Woods that she could not see what actually occurred between the applicant and the other man after the vehicles had pulled over. She stated, however, that she had observed the applicant becoming increasingly agitated and critical of her during the approximately three month period preceding the incident. Further, she had been deeply concerned about the applicant’s poor sleep patterns during this period.

102    Professor Woods concluded that it is “probable that the applicant was suffering from a depression induced brief psychotic episode with referential delusions” at the time of the incident. He recommended that the court be asked to consider dealing with the matter under the relevant section of the Mental Health (Forensic Provisions) Act.

103    There was no formal record before the Minister as to how the charges were dealt with under the Mental Health (Forensic Provisions) Act. The evidence is that “the charges were dismissed”, “no conviction was recorded or punishment imposed” and “the charge was resolved … with no finding being made in relation to whether [the applicant] committed an offence at all.” The result is that other than the fact of the charge itself, from which one can infer that the complainant gave a statement to the effect that there was an assault, there is no evidence of any conduct amounting to an assault beyond the minor “scuffle” that the applicant and his partner attest to in their statutory declarations.

Consideration

104    The Minister never treated the 2014 incident as a conviction. The submissions about the presumption of innocence accordingly miss the mark. The Minister took the fact of the incident and Professor Woods’s report as evidence of the applicant having gotten into a situation of conflict because of his mental health issues. The Minister then placed significant reliance on this to discount factors relied on by the Tribunal to conclude that the applicant was at no risk of reoffending, and to reach the opposite conclusion. In particular, the Minister relied on the 2014 incident to discount the significance of the fact that the applicant’s last offence had been in April 2010, and that both his offences had been in the context of a volatile previous relationship whereas he had subsequently entered into a long-term, stable relationship.

105    Thus, the minor incident more than five years before the Minister’s decision played a significant part in the Minister finding against the applicant. Although, at least on one view, it is a harsh assessment by the Minister that this incident shows that there is a risk of the applicant reoffending, I do not consider it to be so beyond reason as to amount to jurisdictional error. It was the Minister’s responsibility under the relevant provision to assess the risk of the applicant reoffending. In making that assessment the Minister had to act reasonably, logically and intelligibly, but it was for him to give weight to particular facts and draw conclusions from them. I do not consider him to have fallen into error in his approach to the 2014 incident.

106    However, it is to be observed that the Minister gave the matter significance because of his assessment of the applicant’s mental state, i.e., because the applicant suffered a psychotic episode he got himself into a situation of conflict that might otherwise have been avoided. Thus, if the assessment of the applicant’s mental health had been that it improved thereafter, the significance of the incident would diminish.

Resolution of review grounds 1 to 3

107    The applicant places significant reliance on SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986. That case (at [85]) stands for the proposition that a factual error by the Minister in matters informing his consideration of something which is a mandatory relevant consideration may result in jurisdictional error. The Minister had relied on the fact that the applicant in that case had entered Australia on a friend’s passport, when in truth he had entered on his own passport, to conclude that the applicant had engaged in other serious conduct which demonstrated a pattern of fraudulent conduct. On that basis, the Minister concluded that the applicant posed a risk to the Australian community and it was therefore in the national interest to deny him a visa.

108    Griffiths J in SYLN (at [77]) relied on Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346 which held that factual errors adopted by the Minister were material because if correct information had been provided to the Minister he may have taken a different view of the appellant’s risk of recidivism and thus possibly refrained from exercising his power under s 501A(2) of the Act. Similarly, in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; 202 FCR 417, Bromberg J found that the Minister’s erroneous factual conclusion that the applicant had failed to participate in a rehabilitation program amounted to jurisdictional error. That was on the basis (explained at [45]) that it is a mandatory relevant consideration under s 501A(2) for the Minister to consider the potential for the Australian community to be harmed by the continued presence in Australia of the non-citizen.

109    In the present case, in order to consider whether the applicant satisfied him that he passed the character test, the Minister was required to consider whether there was “a risk that the person would engage in criminal conduct in Australia” – that being the relevant “character test” (s 501(6)(d)(i)). Also, in relation to the “national interest”, on the authorities referred to it was a mandatory relevant consideration for the Minister to consider the potential for the Australian community to be harmed by the continued presence in Australia of the applicant.

110    It follows that a factual error by the Minister that is material to the Minister’s consideration of those identified matters would amount to jurisdictional error. For the error to be material it must be such that had the error not been made there could realistically have been a different decision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] per Bell, Gageler and Keane JJ. The onus of proving by admissible evidence on the balance of probabilities facts necessary to satisfy the court that the decision could realistically have been different had the error not occurred lies on the applicant: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

111    None of the errors that I have found in the Minister’s reasons in this case are crisp factual errors of the nature of the vitiating errors in Lu, Gbojueh and SYLN. They do, however, all concern the two mandatory relevant considerations I have identified, namely the risk that the applicant will engage in criminal conduct in Australia and the potential for the Australian community to be harmed by the continued presence of the applicant in Australia. Those matters are obviously substantially overlapping.

112    In my evaluation, had the Minister not made the following errors the outcome of the Minister’s decision might realistically have been different:

(1)    the erroneous treatment of Professor Woods’s treatment plan as being something that the applicant was expected to follow;

(2)    the error in overlooking that when he was in immigration detention the applicant undertook psychological counselling and he took prescription medication which led to the factual findings without evidential foundation that the applicant had not undertaken any significant treatment of his mental health issues referred to at [71] above;

(3)    the error in speculating without foundation that Mr Borenstein’s opinion that the applicant does not pose a risk to society and that the likelihood of him coming to the attention of the police and the courts was extremely low might have been different had he known that the applicant’s engagement in treatment had been sporadic and that he was not following the recommendations of Mr A Hall, which led to the factual finding without evidential foundation that Mr Borenstein’s opinion may have been different as identified at [72] above;

(4)    the error in overlooking years of early treatment apparently sought and received by the applicant and that he returned to treatment prior to knowing that the Minister was considering cancelling his visa under s 501A of the Act, which errors caused the Minister to be suspicious of the applicant’s sincerity in his treatment;

(5)    the error in concluding that the second letter from Mr A Hall indicated that the applicant was not complying with recommended treatment; and

(6)    the error in considering that it was approximately seven years since the applicant had last been convicted whereas it was in fact more than eight years.

113    In my view, the sheer number of errors made by the Minister betray a process of reasoning that is legally unreasonable and, therefore, beyond power. The errors identified in (2) and (3) above, had they not been made, would have led to a different assessment of the applicant’s mental health. That would mean that the extent of the significance placed by the Minister on the November 2014 incident was unfounded. In that respect, it was explained in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402 at [19] per Mansfield, Selway and Bennett JJ that where a finding “is a critical step in [the] ultimate conclusion and there is no evidence to support that finding then this may well constitute jurisdictional error”.

114    That is not to say that each error (other than (2) and (3)) on its own was material, in the relevant sense, to the Minister’s consideration of whether there was a risk that the applicant would engage in criminal conduct. It may be that none of those errors by themselves amount to jurisdictional error. Rather, it is my view that all of them, taken together, amounted to jurisdictional error in the Minister’s decision. That is because they have the effect that the Minister’s ultimate conclusions that if the applicant was allowed to remain in Australia there is a risk that he will engage in criminal conduct and that that would expose the Australian community to a risk of harm such as to outweigh countervailing factors was without intelligible justification, illogical and irrational in the sense explained in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [10] per Allsop CJ.

115    The implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made. Just as a power is exercised in an improper manner if it is, on the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes their decision in a manner “so devoid of plausible justification that no reasonable person could have taken that course”. The decision-maker must come to the decision through an intelligible decision-making process. See ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407 at [19]-[20] per Kiefel CJ, Bell, Gageler and Keane JJ.

116    Whilst being acutely aware of the fundamental importance arising from the separation of powers and the role of the court to avoid descending into merits review (e.g., Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-7 per Mason CJ), factual matters essential to the making of a finding by a decision-maker, can be reviewed on the basis that the reasoning which led to the decision was irrational or illogical irrespective of whether the same conclusion could be reached by a process of reasoning which did not suffer from the same defect: Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [287] per Bathurst CJ.

117    Taking a step back, it is clear that there are a number of factors which on any view weigh substantially in the applicant’s favour in any assessment of whether he is at a risk of reoffending or poses a risk to the Australian community. They include:

(1)    He has only two criminal offences, which were back in 2010 and 2011, both of which were in the context of a volatile domestic relationship and both of which were dealt with on the basis of “without conviction” and effectively no penalty indicating that as offences go they were not all that serious.

(2)    Since early 2014 he has been in a continuous domestic relationship that is stable and supportive and he has good career prospects.

(3)    The Tribunal’s conclusion that no risk of reoffending exists.

(4)    He commenced treatment of his mental health issues in 2009 and has regularly (albeit inconsistently) consulted medical professionals about those issues, which inconsistency was described by Mr A Hall as unsurprising given his history and what he is suffering.

(5)    The expectation of medical professionals that the applicant’s mental health issues would improve were he to remain in Australia.

(6)    The report of Mr Borenstein in which he concludes that the he “does not believe that [the applicant] poses any risk to society” and that the likelihood of the applicant coming to the attention of police and the courts is “extremely low”.

(7)    Numerous letters in support of the applicant, including from a former employer and Dr W Hall attesting to the unlikelihood of the applicant engaging in any criminal conduct.

118    From that assessment, it is clear that the Minister’s decision in this case was a close call. That demonstrates that the decision might readily have gone the other way had the errors that I have identified not been made. That means the errors are material in the relevant sense.

119    On those independent grounds, with reference to particulars (b) and (c), and (d) in so far as it is affected by the error with regard to the assessment of the applicant’s mental health, the Minister fell into jurisdictional error in his decision-making and the decision should be quashed.

GROUND FOUR

120    Ground four alleges that the Minister’s decision was inconsistent with the High Court’s judgment in Minister for Border Protection v Makasa [2021] HCA 1; 386 ALR 200, where it was held (at [50]-[55]) that the Minister could not subsequently revisit a decision not to cancel or refuse a person’s visa on the basis of a failure to pass the character test pursuant to the powers in s 501 of the Act on the basis of the same factual information that had underpinned that decision.

121    The applicant contends that it was intended by the statutory scheme that, in exercising the statutory override power in s 501A of the Act, the Minister could not rely on any particular matter that was in existence at the time of the Tribunal’s decision, but which the Minister did not put to the Tribunal.

122    The applicant relies on three principal considerations in this regard:

(1)    Even where an override power exists, the decision of the Tribunal is entitled to great weight. Section 501A(2) gives the Minister power to reach a different opinion from that of the Tribunal on the same factual material; but it should not be construed as a power to reach a different opinion on material that the Minister could have, but did not, put before the Tribunal.

(2)    The power in s 501A(2) was intended to be an exceptional one designed to address a situation where the Tribunal’s decision is “clearly at odds with community standards and expectations”: Makasa at [33]. That is, the Minister is reaching a conclusion that the Tribunal has reached the wrong determination on the facts and submissions before it; it would be perverse if the Minister were able to override a decision of the Tribunal on the basis of facts or submissions which could have been made to the Tribunal, but which the Minister did not make.

(3)    The Minister’s decision is not subject to any form of merits review in the Tribunal.

123    With reference to the considerations above, the applicant submits that the Minister exceeded the statutory power by relying on the facts of the applicant’s common assault charge in 2014, in considering the 15 February 2017 letter of Mr A Hall as evidence of a lack of treatment compliance or a lack of sincerity, and in coming to the conclusion that Mr Borenstein’s evidence would have been different had he known that the applicant had failed to follow treatment recommendations.

Consideration

124    Makasa decided that once exercised in respect of facts constituting a failure to pass the character test to decide not to cancel a visa, a power conferred by s 501(2) of the Act cannot be re-exercised in respect of the same failure to pass the character test to decide to cancel a visa. The case was concerned with the limits of the exercise of the power under s 501(2), and more particular, its re-exercise. By analogy, the same might be said for the power under s 501(1) to refuse a visa. The case did not, however, concern any limits on the exercise of the power under s 501A.

125    I do not find anything in Makasa or s 501A, and the overall structure of decision-making on visa applications in the Act, to support the applicant’s proposition that in exercising the power under s 501A(2) to override the Tribunal the Minister cannot rely on matters that were known to him at the time of the Tribunal hearing but not put by him to the Tribunal.

126    Section 501A provides to the Minister the power to override the “original decision” of a delegate or the Tribunal not to exercise a power to refuse a visa under s 501(1), or to cancel a visa under s 501(2). The provision is silent as to the material on which the Minister can rely. Moreover, since a delegate is a delegate of the Minister, the Minister is never represented before the delegate and never puts anything to the delegate. There is nothing in s 501A to suggest that an “original decision” that is subject to be override under the section is to be treated in a procedural or adjectival sense any differently if it is a decision of a delegate as opposed to a decision of the Tribunal.

127    Further, the considerations necessary or relevant to the exercise of the power under s 501(1) are not coextensive with the considerations necessary or relevant to the exercise of the power under s 501A(2). That is because the Minister’s override power under the latter provision is dependent on the Minister being “satisfied that the refusal or cancellation is in the national interest”, whereas “the national interest” is not an element of the decision under s 501(1). The fact of that additional element to the exercise of the s 501A(2) power is strongly indicative of the Minister not being confined to material or propositions that were available to him at the time of the Tribunal’s decision and which he put to the Tribunal.

128    In the circumstances, I reject review ground 4.

DISPOSITION

129    As the Minister’s various errors in conjunction amounted to jurisdictional error, his decision under s 501A(2) of the Migration Act refusing to grant the applicant a visa must be set aside. By ss 476A(1)(c) and (2), the jurisdiction of this Court on review of a decision of the Minister made personally under s 501A is the same as that of the High Court under s 75(v) of the Constitution. I will therefore quash the Minister’s decision made on 5 February 2020 by setting it aside. Because that decision includes the setting aside of the Tribunal’s decision, the result of that order will be that the Tribunal’s decision “springs back”: SYLN at [112].

130    I see no reason why costs should not follow the event.

Associate:

Dated:    10 September 2021