Federal Court of Australia

EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is granted.

2.    A writ of certiorari issue quashing the decision of the Minister dated 23 July 2021.

3.    On or before 4:00pm on Friday, 17 December 2021, the parties are to provide short minutes of order, agreed if possible, by email to the Associate to Justice Perry setting out a timetable for the provision of written submissions with respect to:

(a)    any other orders required to give effect to these reasons; and/or

(b)    costs.

4.    Final orders will be determined on the papers without a further oral hearing. 

THE COURT NOTES THAT:

5.    The parties are to endeavour in the first instance to agree any other orders required to give effect to these reasons, and as to costs, fixed if possible in a lump sum or sums pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). 

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant seeks judicial review of a decision made on 23 July 2021 by the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). In that decision, the Minister refused the applicant’s application for a protection visa on character grounds under s 501(1) of the Migration Act 1958 (Cth) (the Act) (the 2021 refusal decision).

2    Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that she or he passes the character test as defined in s 501(6). This power may be exercised by a delegate of the Minister or, as occurred in this case, by the Minister personally. Where the power is exercised personally by the Minister, the decision is not subject to merits review by the Administrative Appeals Tribunal (the Tribunal) (s 500(1)(b)).

3    The Court’s role in adjudicating on the application for judicial review is limited to determining whether the Minister’s decision was made within lawful bounds and not to revisit the merits of that decision. The question of whether or not the Court agrees with the Minister’s decision is, therefore, irrelevant. As, for example, Brennan J (as his Honour then was) explained in Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 70, “[j]udicial review is neither more nor less than the enforcement of the rule of law over executive action.” In this regard, it was not in issue that the burden lies upon the applicant to demonstrate that the Minister’s decision exceeded lawful bounds and was tainted by jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ).

4    The grounds on which the applicant sought judicial review in the further amended originating application filed on 9 August 2021 (the further amended originating application) may be summarised as follows.

(1)    The Minister lacked power to refuse to grant the visa under s 501 of the Act because all of the valid criteria for the grant of the visa had earlier been met and the Minister or his delegate was then under a duty to grant the visa (Grounds 1 and 2).

(2)    The Minister proceeded on a misconstruction of s 501(6)(d)(i) of the Act insofar as he took into account “the nature of the harm … should [the applicant] engage in … other serious conduct” whereas the subsection permitted consideration only of the risk that the applicant “would engage in criminal conduct” (Ground 3).

(3)    There was “no probative evidence” for the finding that the applicant had received “ongoing engagement with support services” or that he presented an increased risk of offending “once he is removed from this environment”, ie, immigration detention (Ground 4).

(4)    The Minister erred in ignoring the applicant’s submissions about “‘community expectations’ apart from how that term is considered in Direction 90, and [such submissions were] relevant to the Minister’s unconstrained discretion whether to exercise the power in s 501(1)” and in failing to consider how those submissions should factor into what weight is to be afforded to “community expectations” (Ground 5).

(5)    The Minister failed to consider the legal consequence that refusal of the applicant’s visa application would likely lead to indefinite and therefore arbitrary detention, and/or cruel, inhuman or degrading treatment, in breach of Articles 9 and/or 7 respectively of the International Covenant on Civil and Political Rights (ICCPR) (Ground 6).

(6)    The Minister’s reasoning that he “[did] not consider the prospects of ministerial intervention under s195A or 197AB of the Act to be unrealistic” was unreasonable, illogical or irrational (Ground 7).

(7)    an inference should be drawn from the evidence that the Minister did not engage in any active intellectual process in respect of the material purportedly considered by him, “or only purportedly made a decision when it was instead actually made by a delegate and not him personally” (Ground 8).

(8)    The making of the decision by the Minister personally so as to deny the applicant merits review was legally unreasonable or alternatively the product of a failure by the Minister to consider that the legal consequence of a decision made by him personally would deprive the applicant of the right to merits review (Ground 9).

5    In addition, by an interlocutory application filed on 21 September 2021 after the hearing, the applicant sought leave to re-open his case and to file and serve a second further amended originating application adding a further ground of review (proposed Ground 10). That application was supported by the affidavit of Ms Chelsea Clark, solicitor, affirmed on 9 September 2021 (the Clark affidavit), to which the second further amended originating application (the second further amended originating application) was annexed. Proposed Ground 10 alleges that the Minister failed to give genuine consideration to the evidence and submissions advanced by the applicant concerning his involvement in “incidents” in immigration detention and the extent to which he posed a risk, if any, to the Australian community based upon his past use of alcohol or other intoxicants.

6    For the reasons set out below, Grounds 7 and 6 of the application are established. In short, the Minister’s finding that the prospects of ministerial intervention under the Minister’s personal, non-compellable powers were not unrealistic was illogical (Ground 7). Further and in any event, the Minister failed to consider a substantial and clearly articulated submission made on behalf of Mr EPU that the psychological harm from which he would be likely to suffer as a result of his indefinite detention (which would be a probable consequence if the visa application were refused) would constitute cruel, inhuman or degrading treatment contrary to Art 7 of the ICCPR (Ground 6). In each case, the errors were jurisdictional in nature and therefore the Minister’s decision under s 501(1) was invalid.

7    Finally, I note that the applicant is identified by the pseudonym “EPU19” in this proceeding, given his claims for protection against harm if he is returned to his country of nationality. It follows that in referring to him as “Mr EPU” or “the applicant” in these reasons, I mean no disrespect. Furthermore, given his claims for protection, certain details which might otherwise identify him have been omitted, including his country of nationality which I will simply refer to in these reasons as “Country X”.

2.    EVIDENCE    

8    In support of the application for judicial review, Mr EPU relied upon:

(1)    the affidavits of Mr Gregory Hanson, solicitor, affirmed 9 August 2021 and 27 August 2021 respectively;

(2)    the statement of agreed facts dated 23 July 2021 and filed on 25 July 2021 (Exhibit A-1);

(3)    the applicant’s tender bundle filed 30 August 2021 (A-TB) and supplementary tender bundle filed on 30 August 2021 (A-STB) (Exhibits A-2 and A-3 respectively);

(4)    four Gazette extracts from the Parliament of Australia website regarding the Hon Alex Hawke MP dated 19 July 2016, 20 December 2017, 28 August 2018 and 22 December 2020 (Exhibit A-4);

(5)    the respondent’s list of document in response to the order for discovery and affidavit of Josefina Soledad Wellings Booth filed 27 August 2021 (Exhibit A-5);

(6)    the first answer from the Minister to interrogatories administered by the applicant dated 27 August 2021 (Exhibit A-6); and

(7)    the document containing a table for the financial year 2015-2016 to 30 April 2021 setting out the number and kind of visas granted under s 195A of the Act where the visa holder failed s 501 and where non-refoulement obligations were owed (Exhibit A-7).

9    I note that with respect to the answers to interrogatories, the applicant contended that no weight ought to be given to answers 2 and 3, and tendered the whole of the answers only on objection.

10    The respondent relied upon his tender bundle filed 31 August 2021 (R-TB) (Exhibit R-1) and the two affidavits of Nigel Lee Muir affirmed on 16 July 2021 and 31 August 2021 (the first and second Muir affidavits respectively). I note that in his evidence, Mr Muir corrected the date on which his first affidavit was affirmed from 2020 to 2021 and corrected the place on which it was affirmed to Melbourne and not Canberra as recorded on the affidavit. Mr Muir has held the position of Director of the National Character Consideration Centre (NCCC) in the Department of Home Affairs (the Department) since 2 May 2017. Over the course of his 25 years as a public servant, he has held various positions in a number of Commonwealth departments and agencies. He joined the predecessor to the Department in 2001 and has performed duties as an Executive Level 2 Australian Public Service employee since 2006.

11    Mr Muir was cross-examined and gave helpful and cogent evidence, clearly identifying those areas where he had knowledge and the basis of his knowledge, and those areas where he did not. The applicant submitted that there were aspects of Mr Muir’s evidence which were “unsatisfactory by reason of overstatement” and which ought to be taken into account in determining the weight to be given to his evidence on contested matters, referring in particular to the following:

(a)    as to assessments being ‘indicative’ because the person conducting the assessment did not hold the required delegation;

(b)    as to existence of [Integrated Client Services Environment] records in this matter saying that a criterion was only ‘indicatively’ met;

(c)    as to an outcome of a ‘[visa application primary assessment] for views’ being referral to a Minister;

(d)    as to non-inclusion of completed [visa application primary assessment] in affidavit.

12    However, contrary to the applicant’s submissions, I accept Mr Muir’s evidence as to the indicative character of assessments of particular criteria in the course of the process leading to a decision under s 65 of the Act as to whether or not to grant a visa. As I later explain, his evidence in this regard is also consistent with the nature of a decision under s 65 which requires the Minister personally or her or his delegate to determine whether or not she or he is satisfied that the criteria for the grant of the visa are met at the time that the s 65 decision is made. Nor do I draw any adverse inference from the failure to attach a completed visa application primary assessment (VAPA) to his affidavit.

3.    WRITTEN SUBMISSIONS BY THE PARTIES

13    Due to the fact that the Minister advised the applicant of his s 501(1) decision made on 23 July 2021 only on the eve of the trial when it was first listed on 26 July 2021, the evolving nature of the applicant’s case as a consequence of this and other matters, and the fact that there were unexpected delays in obtaining the transcript of the first day of the trial on 2 September 2021, there were unfortunately multiple sets of written submissions filed by the parties, including after the hearing (with leave). The various sets of written submissions were as follows:

(1)    Applicant’s Outline of Written Submissions filed on 16 April 2021 (AS (16 April 2021));

(2)    Applicant’s Further Outline of Written Submissions filed on 6 July 2021 (AS (6 July 2021));

(3)    Respondent’s Written Submissions filed on 21 July 2021 (RS (21 July 2021));

(4)    Applicant’s Outline of Written Submissions in support of Further Amended Application, originally filed on 24 August 2021 and re-filed in a marked-up form on 30 August 2021 (AS (30 Aug 2021));

(5)    Respondent’s Written Submissions filed on 31 August 2021 (RS (31 Aug 2021));

(6)    Applicant’s Written Submissions in Reply filed on 1 September 2021 (AR (1 Sept 2021));

(7)    Applicant’s Submissions on Application for Leave to Re-Open and Amend filed on 9 September 2021 (AS (9 Sept 2021));

(8)    Respondent’s Post Hearing Submissions filed on 17 September 2021 pursuant to leave granted on 6 September 2021 (RS (17 Sept 2021));

(9)    Applicant’s Reply Submissions on Application for Leave to Re-Open and Amend filed on 20 September 2021 (AR (20 Sept 2021)); and

(10)    Table entitled “Applicant’s contended conclusions from evidence of Mr Muir and Respondent’s response” filed on 17 September 2021 pursuant to leave (Parties’ Comparative Table of Proposed Findings).

4.    FACTUAL BACKGROUND

4.1    The 2018 decision by the Tribunal

14    Mr EPU is a young man who has been in immigration detention for several years since the age of 15. He applied for a Protection (Class XA) visa on 3 October 2017. His application for a protection visa has had a complex history. For reasons which will become apparent, it is necessary to set out the chronology of events leading to the Minister’s 2021 refusal decision with some care.

15    Mr EPU’s visa application was initially refused by the delegate on the ground that the delegate was not satisfied that Mr EPU was a refugee or that there was a real risk that Mr EPU would suffer significant harm if returned to Country X. However, in 2018 the Tribunal found that Mr EPU was a person in respect of whom Australia owes protection obligations under s 36(2)(a) of the Act (the 2018 Tribunal decision).

4.2    The Minister’s 2019 refusal decision and judicial review of that decision

16    On 15 October 2019, the then Minister for Home Affairs personally refused the visa under s 501(1) of the Act on the ground that Mr EPU did not pass the character test and gave reasons (the 2019 refusal decision). The Minister’s reasons for his 2019 decision are reproduced at Annexure NLM-1 to the first Muir affidavit. Mr EPU has no recorded convictions. However, the 2019 refusal decision was made in light of certain offences having been found proven by the Children’s Court of New South Wales (the Children’s Court) which were committed while Mr EPU was 14 to 15 years of age. Those offences (which did not proceed to conviction pursuant to the operation of s 14 of the Children (Criminal Proceedings) Act 1987 (NSW)) were committed over a four-month period and included robbery and assault for which he was sentenced to a control order for 14 months as an aggregate sentence, with a seven-month non-parole period (2019 refusal decision at [7] and [14]). (In this regard, I note that the respondent’s written submissions dated 21 July 2021 wrongly state at [7] that Mr EPU had been convicted of offences by the Children’s Court.)

17    Mr EPU sought judicial review of the 2019 refusal decision in earlier proceedings. On 27 February 2020, that decision was quashed by consent on the basis that the then Minister for Home Affairs had failed to respond to a substantial, clearly articulated argument upon which Mr EPU had relied (first Muir affidavit at [12]). An order in the nature of mandamus was made requiring the Minister for Home Affairs to determine the matter according to law.

4.3    The application for peremptory mandamus directing the Minister to grant the protection visa forthwith

18    On 30 March 2020 and having regard to the then state of legal authority, Mr EPU filed an interlocutory application seeking peremptory mandamus directing the Minister for Home Affairs to grant the protection visa forthwith (first Muir affidavit at [13]). That application was heard by Steward J on 17 April 2020. One of the matters in issue between the parties on that application was whether the Minister considered that Mr EPU satisfied the visa criterion in s 36(1C) of the Act or whether that criterion remained unsatisfied. Section 36(1C) relevantly provides that a criterion for a protection visa is that the applicant is not a person whom the Minister considers on reasonable grounds is a danger to the Australian community. Justice Steward delivered judgment on 17 April 2020 and published his reasons on 24 April 2020 in EPU19 v Minister for Home Affairs [2020] FCA 541 (EPU19 (Steward J)). His Honour found that, considered in combination, internal departmental documents supported the inference that a final view had been made concerning the application of s 36(1C) to Mr EPU before the Minister made his decision under s 501 on 15 October 2019 (at [24]).

19    Further, as at the date of the hearing of the application before Steward J, the decision of Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19) had not yet been overturned. In BAL19, Rares J held that the Minister was not entitled to refuse the grant of a protection visa under s 501(1) of the Act. Given therefore the then state of the law, once Steward J held that the Minister was required to consider afresh the criteria for the grant of a protection visa under the orders made in February 2020 save for the criterion in s 36(2)(a) of the Act that the applicant was a person to whom Australia owed protection obligations as a refugee, the relevant question was what timeframe should be afforded for compliance (EPU19 (Steward J) at [53]–[54]). Reconsideration of the exercise of the power under s 501(1) was not possible on the law as stated in BAL19. Accordingly and in the circumstances, Steward J made orders requiring the Minister to determine whether or not to grant a protection visa to Mr EPU on or before 8 May 2020.

20    Subsequently, on 23 June 2020, the Full Court in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; (2020) 279 FCR 1 (KDSP (FCAFC)) overruled the decision in BAL19 and held that the power under s 501(1) could be exercised to refuse a protection visa. The same conclusion was reached by a differently constituted Full Court on the following day in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121; (2020) 279 FCR 475.

4.4    The decision by the Tribunal that Mr EPU satisfied the criterion in s 36(1C)(b)

21    In the interim, on 7 May 2020 the Minister’s delegate decided to refuse to grant the visa on the ground that Mr EPU did not meet s 36(1C)(b) of the Act. Mr EPU in turn applied for review of that decision by the Tribunal.

22    On 11 March 2021, the Tribunal remitted the decision under review to the Minister with a direction that Mr EPU satisfied the criterion in s 36(1C)(b) of the Act, noting the Minister’s concession that Mr EPU was not a danger to the Australian community for the purposes of that provision (first Muir affidavit at [21] and Annexure NLM-4). The Tribunal also found that Mr EPU “demonstrated maturity, genuine remorse, and insight into his past behaviour” as a juvenile and that he had “a low risk of reoffending” (Tribunal’s reasons at [18] and [25]).

4.5    Subsequent steps taken by the Department

23    Following that decision, on 17 March 2021 an officer of the Department determined that an Australian criminal history check should be performed with respect to Mr EPU before progressing his application. On 22 March 2021, the Department requested the criminal history check through CRIMTRAC which it received on 1 April 2021. These matters were recorded in the Department’s document management systems, the Integrated Client Services Environment (ICSE) (first Muir affidavit at [22] and Annexure NLM-5). On the same day, the Department sought a written statement from Mr EPU concerning the circumstances of the offending listed in the criminal history check, with submissions in response being made on behalf of Mr EPU by his migration agent on 6 April 2021 (first Muir affidavit at [23]–[25]).

24    On 8 April 2021, Mr EPU’s application for a protection visa was referred to the Visa Applicant Character Consideration Unit (VACCU) for consideration (first Muir affidavit at [26]). VACCU is a section within the Character and Cancellation Branch (CACB) which is, in turn, within the Department. The CACB is responsible for processing visa cancellation and refusal decisions for non-citizens who are of character or security concern, are non-compliant with visa conditions, or have committed migration fraud. This includes cancellation and refusal decisions on character grounds and cancellation decisions under the general non-character grounds (such as cancellations under ss 109, 116 and 128 of the Act). Referrals to VACCU are regulated by departmental policy. Mr Muir explained that one of the reasons for the referral is that not all officers who hold a delegation to make a decision to grant or refuse to grant a visa under s 65(1) of the Act also hold a delegation to make decisions under s 501(1) of the Act (first Muir affidavit at [27]).

25    On 29 April 2021, an Assistant Director of the CACB wrote to a Senior Legal Officer in the Department stating that:

The case was referred from PV to VACCU on 8 April 2021. Prior to this time there was no consideration of s501.

Section 501 consideration cannot commence until a case is referred to VACCU. Prior to this time it was with the visa processing area.

Following the referral on 8 April 2021 the case has not been considered against s501.

A visa application primary assessment (VAPA) is being provided to the delegate today (29 April 2021) to ascertain her views on whether or not s501 should be exercised. Following this the Minister (Minister Andrews) will be briefed to determine if she would like to make a s501 decision or is happy for a delegate to make a decision.

(A-STB at p. 714.)

26    In line with this, on 29 April 2021, a VAPA was provided to an officer, “Dani”, who held a delegation to exercise power under s 501(1), in order to ascertain her views on whether the visa should be refused under that provision. While the applicant submitted that it was legally irrelevant, I note that Dani also held a permission from the Assistant Secretary to exercise that delegation (T, 2/09/21, 39.13-19; Parties’ Comparative Table of Proposed Findings at item 6).

27    The reason given in the VAPA for the “views sought” from Dani was “Client Brief” (A-STB at p. 736). More specifically, the email to Dani from the Manager, Program Management Capability Team, NCCC, explained that a VAPA was attached “for your views” and that “[y]our views will be included in a CB for Minister Andrews seeking direction on whether she wishes to personally consider this application under s501(1)” (first Muir affidavit, Annexure NLM-10). Thus, Mr Muir explained that Mr EPU’s case:

… was identified for escalation prior to Daniella [Dani] forming a view. And it was put to her with the intention of seeking a view to inform a – a client brief to the Minister’s office.

28    As he further explained, the reason why the case was identified for escalation before Dani was involved was because the Minister (then the Hon Peter Dutton) had been the previous decision-maker, “[s]o on that basis, a client brief was deemed necessary to give the – visibility to the Minister and the option of whether the Minister wanted to, again, personally decide the case.” (T, 2/09/21, 40.42-41.4; see also at T, 2/09/21, 42.18-35 (Mr Muir)). This course appears to be accommodated by the Department’s internal escalation protocols which identify categories of cases where the Department would seek views and then escalate them (T, 2/09/21, 44.39-45.2 (Mr Muir)). In this regard, the failure by the Minister to produce these protocols, despite the protocols being documented, is of no significance in circumstances where they fell outside the scope of discovery sought by the applicant and I therefore draw no adverse inference from the failure to produce them (cf the applicant’s submission in the Parties’ Comparative Table of Proposed Findings at p. 5). Nor do I consider that Mr Muir’s evidence on this issue is inconsistent with the Character Case Allocation Matrix at p. 741 of the A-STB. Even though the circumstances of Mr EPU’s case did not fall within a category expressly identified in the Matrix as one requiring a decision by the Minister (such as a case involving a crime against humanity or serious violent offences), I accept Mr Muir’s evidence that the escalation in this case was regarded as consistent with the Matrix because it fell within the category of “other cases identified as exceptional” by reason of the Minister having been the previous decision-maker (T, 2/09/21, 42.33-35). Furthermore, I do not accept that any adverse inference should be drawn from the failure to call Dani (cf the applicant’s submission in the Parties’ Comparative Table of Proposed Findings at p. 5). Mr Muir gave evidence of relevant departmental processes and policies, and the documentary evidence was completely clear that Dani was neither asked for, nor purported to make, a decision on whether to exercise the power in s 501 of the Act, as I later find.

29    It follows that the purpose of seeking Dani’s views was to give the Minister the option of deciding whether he should make the s 501 decision personally (T, 2/09/21, 40.38-40 (Mr Muir)) and not to ask Dani to make the decision on whether the power to refuse the visa under s 501 should be exercised. In this regard, Mr Muir explained that a s 501 delegate could form a view as to whether the case is one appropriately decided by the Minister or alternatively by a delegate, and in reaching a view may take into account, but is not bound by, the view of the case officer (T, 2/09/21, 41.34-45). However, in Mr EPU’s case, Dani was already aware that the case was being escalated to the Minister when she was asked to provide her views (T, 2/09/21, 42.1-3).

30    A client brief for the Minister, as in the present case, will generally give the Minister various options, including to refer any s 501 decision to a delegate or to request a full submission for the Minister’s personal consideration (second Muir affidavit at [7]). As to the purpose of a VAPA, Mr Muir explained that it:

… is to gauge the character delegate’s views as to whether or not they would be inclined to exercise or not to exercise the discretion in s 501(1) of the Act. The character delegate will consider the matter and form a view as to the most appropriate action for the case, which may include finalising administratively or referral to the Minister for consideration.

(First Muir affidavit at [28]; see also the second Muir affidavit at [5].)

31    In essence, a VAPA “for views” is a way of assisting the briefing of the Minister by giving an indication from a departmental officer holding a delegation to exercise power under s 501 on whether they would be inclined to exercise such a power on the material currently before them, should the case be referred back to the delegate for her or him to proceed to a decision (second Muir affidavit at [7]).

32    The departmental officer, Dani, who signed off on the VAPA as a delegate of the Minister administering the Act, gave her view that “[o]n the basis of the evidence currently before me I am minded to … Not Refuse”, that is, she was “minded” not to refuse Mr EPU a visa under s 501(1). This document was included in the Client Brief provided in due course to the Minister (T, 2/09/21, 46.36-39 (Mr Muir)).

33    In the ministerial submission dated 5 May 2021, the Assistant Secretary, CACB, advised that the Minister had two options:

(1)    to personally consider refusal of Mr EPU’s visa under s 501(1) on the basis of the risk of further offending if Mr EPU were to remain in Australia, in which case a submission would be referred to the Minister for consideration; or

(2)    to refer the case to the delegate to decide, with the submission “not[ing]” that as “the delegate is minded not to refuse, this would likely result in the grant of [Mr EPU’s] visa” (A-STB at pp. 638–9).

34    This Client Brief was sent to Minister Hawke’s Office on 7 May 2021 (R-TB at p. 1). The covering email from the Assistant Secretary also stated “PDMS Submission to follow”.

35    On 14 May 2021, Minister Hawke decided to consider the matter personally (A-STB at pp. 643 and 728).

36    Mr EPU’s application for a visa was returned to the Protection Visa area on 2 June 2021 for a consideration of protection obligations in accordance with s 36A of the Act. Mr Muir explained that this occurred because Mr EPU’s application was affected by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (the CIOR Act). Following the assessment in accordance with s 36A, Mr EPU’s application was referred again to VACCU on 7 June 2021 so that an assessment under s 501(1) could be undertaken (first Muir affidavit at [29]).

4.6    The Notice of Intention to Consider Refusal of Mr EPU’s visa under s 501(1) of the Act dated 18 June 2021

37    On 18 June 2021, a Notice of Intention to Consider Refusal of Mr EPU’s visa under s 501(1) of the Act (NOICR) was sent to Mr EPU (first Muir affidavit at [30] and Annexure NLM-11). Among other things, the NOICR contained new information in the form of a file note concerning alleged incidents in immigration detention which had occurred since the Tribunal’s decision and was said to include “aggressive behaviour”. The letter explained that the decision-maker may take that information into account because “such behaviours may indicate a propensity to engage in harmful or threatening conduct against or toward others.” The letter further explained that Mr EPU may wish to make submissions in relation to the Primary and Other Considerations set out in Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), given that a delegate must follow Direction 90 if making the decision and, if the Minister should make the decision personally, the direction, while not binding, “provides a broad indication of the types of issues that he or she may take into account.” This was subject to the caveat that “Direction No. 90 must now be read subject to the legislative amendments made by the CIOR Act. In particular, Direction No. 90 is no longer accurate to the extent that it suggests that an unlawful non-citizen is liable to be removed under s198 despite any non-refoulement obligations.” The NOICR requested that Mr EPU provide any responsive information or material to the Department within 14 days, although an extension of time could be requested. (I note that the NOICR wrongly suggested that a delegate may make the decision, notwithstanding that the Minister had already decided to make the decision personally.)

38    On 30 June 2021, Mr EPU’s representative sent an email to the Department requesting that a decision to refuse the visa not be made until 14 July 2021, indicating that a forensic psychiatric report in relation to Mr EPU was being sought and was expected to be obtained by 12 July 2021. On 3 July 2021, the Department wrote acceding to Mr EPU’s request, and the supplementary report was subsequently provided by Mr EPU on 14 July 2021. A further extension of time until 16 July 2021 was also sought by Mr EPU’s representative within which to provide detailed submissions, which was allowed by the Department.

39    As at 16 July 2021 when Mr Muir affirmed his first affidavit, he explained at [34] that:

After the [a]pplicant provides further information responding to the NOICR, or otherwise after the expiry of the time allowed to the [a]pplicant to provide that information, it is intended that a submission will be finalised by the Department and provided to the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs in the week beginning Monday 19 July 2021, presenting the [a]pplicant’s visa application for the Minister’s decision, and presenting information relevant to that decision.

4.7    The Minister’s 2021 refusal decision

40    On 23 July 2021, the Minister made a decision under s 501(1) to refuse to grant the protection visa to Mr EPU and gave reasons for that refusal by adopting the lengthy draft statement of reasons prepared by the Department (A-STB at pp. 3–5 and 9ff respectively).

41    As the applicant challenged a number of aspects of the Minister’s reasons and his reasons need to be understood as a whole, it is necessary to summarise the decision in some detail.

4.7.1    Minister’s reasons for finding that Mr EPU did not pass the character test in s 501(6)(d)(i)

42    The Minister commenced by addressing the character test, identifying s 501(6)(d)(i) of the Act as the relevant ground, namely, whether there is a risk that the applicant would “engage in criminal conduct in Australia” if allowed to remain (at [5]). The Minister stated that he took into account the applicant’s representative’s submission that the ground was not enlivened as there was no more than a minimal or remote chance that the applicant would engage in criminal conduct resulting in a conviction in the future, given that he had never been convicted of a criminal offence, he had been fully rehabilitated, and he would have access to considerable and ongoing supports once released from immigration detention (at [6]). However the Minister noted that the applicant accepted the findings by the Children’s Court and the “sentence imposed for his criminal offending” found proven, with the applicant having pleaded guilty (at [8]–[9]).

43    After considering the circumstances of the applicant’s offending as set out in the sentencing remarks of the Children’s Court and acknowledging that the applicant had not been convicted of any offences, the Minister considered that the applicant’s “previous behaviour, as outlined by the court shows a propensity to commit acts of a criminal nature” (at [14]). The Minister also had regard to the violent nature of the applicant’s offending, as reflected in the sentencing remarks, and found that the applicant had a criminal record with offending over a period of four months which involved violence (at [19]).

4.7.1.1    “Risk of engaging in criminal conduct in Australia”

44    The Minister then turned to consider the “Risk of engaging in criminal conduct in Australia” under various subheadings from [20]–[81] of his reasons, namely: factors contributing to past conduct; remorse and rehabilitation; and recent adverse conduct in the Melbourne Immigration Transit Accommodation (MITA).

45    In commencing his discussion of the risk that the applicant might engage in criminal conduct in Australia, the Minister stated that:

20. In making my assessment regarding the risk that may be posed by [Mr EPU] to the Australian community, I have had regard, cumulatively, to:

•    the nature of the harm to individuals or the Australian community should [Mr EPU] engage in further criminal or other serious conduct; and

•    the likelihood of further criminal or other serious conduct, taking into account the likelihood of [Mr EPU] reoffending.

21. Having regard to the nature of [Mr EPU’s] conduct in the past, as outlined above, I consider that any future offending of a similar nature would have the potential to cause physical and psychological injury to members of the Australian community through the use of violence.

22. In assessing the likelihood of [Mr EPU’s] reoffending in the future, I have considered factors that may assist to explain [Mr EPU’s] past conduct, as well as his more recent conduct, remorse and rehabilitation.

46    The nature of the task outlined by the Minister at [20] is alleged by the applicant to demonstrate error, as I later explain in the context of addressing Ground 3 of the further amended originating application.

4.7.1.2    “Factors contributing to [the applicant’s] past conduct”

47    In considering the “factors contributing to [the applicant’s] past conduct”, the Minister took into account mitigating circumstances, including that before his arrival in Australia at the age of 11 the applicant had witnessed violent conflict in his home country, and that he had little support in Australia after his father was taken into criminal custody and he was often left alone. His friends at school invited him to parties and introduced him to alcohol and drugs when he was 14 years of age which made him feel good, reduced his loneliness, and allowed him to enjoy the company of people whom he thought respected him. Around this time he committed the offences (at [23]–[24]). The Minister also took into account psychological reports noting that the applicant was also subject to violence from his father as a young child and that he was bullied, beaten and sexually assaulted while in high school, becoming a protected person under an Apprehended Violence Order (at [25]–[27]). The Minister considered the report dated 6 February 2021 of Dr Zimmerman who was of the view that the applicant had a history of poor emotional regulation, depression and Post-Traumatic Stress Disorder (PTSD) and expressed the opinion that the applicant’s disrupted, violent and abusive childhood was critical to understanding his offending (at [28]–[30]). The Minister concluded that “having considered the information above, I find that [Mr EPU’s] young age, past trauma, lack of family (and adult) support and the use of alcohol and drugs contributed to his offending behaviour” (at [31]).

4.7.1.3    “Remorse and rehabilitation”

48    The Minister then turned to the topic of “remorse and rehabilitation”. Among other things, the Minister said that he had considered the Magistrate’s comment that the applicant accepted responsibility for his conduct in the first offence and had entered a guilty plea at the earliest opportunity (at [32]). The Minister also “note[d]” the Tribunal’s comments (in the context of its finding that the applicant does not pose a danger to the Australian community) that the applicant had demonstrated maturity, genuine remorse and insight into his past behaviour and the Tribunal’s finding that he had a low risk of reoffending, given the supports he has in place and his commitment to continuing psychological and commencing trauma counselling (at [33]). The Minister referred to the applicant’s plans to start his life over with the assistance of his stepsister, his interest in undertaking a course in bricklaying, and his commitment to continuing treatment to overcome his traumatic childhood, finding that:

36. I have given weight to [Mr EPU’s] comments that he has used his time effectively in juvenile custody and immigration detention and has strengthened his faith. I acknowledge his comment that he now prays every day and finds that beneficial in helping to control his emotions. I note that upon his release into the community, [Mr EPU] intends to find a local mosque and become part of the community. I accept that religious community support may constitute a protective factor for [Mr EPU] …

49    The Minister also accepted the applicant’s expressions of remorse and his submissions that he is ashamed of his past and what he did, that he knows there is no excuse for his behaviour, and that he admits to making poor choices and wants to learn from his mistakes (at [37]). Furthermore, the Minister gave weight to Dr Zimmerman’s “submission” that Mr EPU’s increased insight and ability to empathise with those he has threatened and harmed in the past is consistent with his development from an early adolescent to a young adult, and noted Dr Zimmerman’s comment that a tendency towards emotional dysregulation, as seen in the applicant’s case is likely to improve with maturation as she considered was already occurring (at [38]). The Minister also noted Dr Zimmerman’s updated report dated 9 March 2021 in which she took into account various supports for the applicant if he were to be released from immigration detention, including:

(1)    referral to a drugs and alcohol service and connection to the director of a multicultural youth centre to assist him in pro-social youth activities including sports, religious education and community support services;

(2)    a referral for the applicant to a psychologist to work with him on offence specific issues including the development of skills around emotional regulation and consequential thinking;

(3)    the applicant’s engagement with a counsellor to assist him with trauma and torture counselling; and

(4)    his stepsister’s letter of support where plans for his accommodation, financial support, and practical day-to-day support are outlined (Minister’s reasons at [39].)

50    The Minister’s reasons then continue:

40. Dr Zimmerman concludes that with the above supports in place, [Mr EPU] represents a ‘low risk of future violent offending’. She further notes however, that if such supports are no longer available to [Mr EPU] his risk of further offending would increase to a moderate risk of future violent offending.

41. I accept Dr Zimmerman’s opinion that [Mr EPU’s] past drug/alcohol use was consistent with him partying rather than his having a pattern of dependency, and I agree with a recommendation that [Mr EPU] would benefit from future drug/alcohol counselling to reduce the risk of relapse during times of stress …

42. I acknowledge Dr Zimmerman’s overall conclusion that [Mr EPU] currently represents a low risk of future violent offending …

(Emphasis in the original.)

51    The Minister also referred to the report of Dr O’Brien, psychologist, on 6 October 2018 who stated that the applicant presented with some risk of reoffending but that several social and individual risk factors once present in his life, such as poor parental management, peer delinquency and substance use, were no longer active influences and that providing appropriate support services in the community could further mitigate his risk of reoffending (at [43]).

52    The Minister then referred to the fact that while in immigration detention, the applicant had been involved in group programs run through the International Health and Medical Services which primarily focused on mental health and wellbeing, and observed that reports showed that the applicant was engaged during the sessions (at [44]). Further offers of support from different organisations if the applicant were to be released were also noted by the Minister (at [45]–[47]), and the Minister stated that he had considered submissions on behalf of the applicant including as to his willing engagement with counselling services and drug and alcohol prevention sessions and referring to his sobriety for over three and a half years (at [48]). The Minister also stated that he took into account the submission referring to his participation in education programs on drugs and alcohol and to the fact that, as a committed Muslim, he does not intend to use drugs or alcohol in the future as it would be against his religious beliefs (at [52]).

53    The Minister concluded on the issue of the applicant’s remorse and rehabilitation that:

53. Having considered the above, I find that [Mr EPU] has shown some remorse for his previous criminal actions and undertaken and completed rehabilitation courses while in detention. I have considered the evidence provided by experts, including psychologists in relation to [Mr EPU’s] risk of reoffending. While I note, there is evidence of [Mr EPU’s] rehabilitation and opinion that he is a lower risk of reoffending, I have also considered that [Mr EPU] has remained in a controlled environment where he has received ongoing engagement with support services. I consider the risk of [Mr EPU] committing criminal offences increases once he is removed from this environment.

54    The finding at [53] is challenged by the applicant on the basis that there was no evidence to support that finding (Ground 4).

4.7.1.4    “Recent adverse conduct – Conduct in the [MITA]”

55    By proposed Ground 10 of the second further amended originating application, the applicant also seeks to challenge the Minister’s reasoning with respect to the topic addressed by him under the subheading “Recent adverse conduct – Conduct in the [MITA]”. In particular, Ground 10 relevantly alleges that the Minister failed to give genuine consideration to evidence and submissions advanced by Mr EPU relevantly to the effect that his involvement in “incidents” in immigration detention was not probative of his risk of engaging in criminal conduct in the future outside immigration detention.

56     At [54], the Minister stated that:

I have taken into consideration the client incident reports and file note, which outline adverse behaviours [Mr EPU] has engaged in during his time in the MITA (since 7 September 2017). I acknowledge that most incidents were relatively minor, however, I have also considered that [Mr EPU] has been verbally and physically aggressive on occasion towards other detainees and staff members of the MITA. I note that [Mr EPU] has also engaged in behaviours including throwing, kicking and banging his head on furniture or threatening to do so.

57    The Minister acknowledged that Mr EPU’s behaviour had improved somewhat during his detention and that he had been involved in less adverse incidents of late but stated that he was “mindful that his most recent incident occurred in May 2021 and [he] remain[ed] concerned about [Mr EPU’s] ability to control his emotions when confronted by others” (at [59]). The Minister stated that he took into account Mr EPU’s statement acknowledging his involvement in some incidents in detention. He also noted Mr EPU’s explanation that he found being a child amongst adults in the detention centre environment was very difficult, that he felt the need “to always have his guard up” but that he now realised his actions and behaviour were “stupid and dangerous”, and he was sorry and ashamed (at [61]). The Minister also noted the submission on behalf of the applicant that the MITA environment is highly restrictive and acknowledged to be harmful to children, and that the incidents reflect the environment and could not be taken as a reflection of how the applicant would act in the community (at [62]).

58    While noting that no formal charges were raised as a result of the applicant’s behaviour in immigration detention, the Minister found that he remained concerned that Mr EPU’s behaviour in the MITA suggested that his rehabilitation was not complete and found that:

71. Having taken into account all information available to me, I acknowledge that [Mr EPU] was a minor for the majority of time spent in detention. I accept that detention centres can be stressful places and that the length of [Mr EPU’s] detention has impacted upon his mental health. I have placed limited weight on the incidents recorded in which [Mr EPU] has been involved, however I have noted that [Mr EPU’s] reaction in some of these incidents shows the potential for [Mr EPU] to resort to violence.

4.7.1.5     “Conclusion on risk to community”

59    In concluding on the subject of “risk to community” the Minister found that:

(1)    Mr EPU was genuinely remorseful for his past offending;

(2)    Mr EPU’s religious views may be a protective factor in reducing the risk of further offending; and

(3)    the supports available to Mr EPU if granted a visa or otherwise placed in the community “will be beneficial” to him and “likely to assist him to refrain from reoffending, while it continues. I also accept that it is [Mr EPU’s] genuine intention to refrain from reoffending. However, I am cognisant that [Mr EPU] is not compelled to undertake treatment outside the detention environment and there is no guarantee that he will access and continue to receive the appropriate treatment and support he is likely to require” (at [75]; emphasis added).

60     The Minister further found that:

76. The available evidence suggests that [Mr EPU] experiences on-going difficulty in regulating his emotional reactions and in managing his relationships with fellow detainees and staff members. I have considered the submissions that once in the community, [Mr EPU] would be afforded an increased level of privacy and the ability to choose for himself who[m] he associates with and I find these factors may increase his ability to regulate his emotions and reactions, however in the alternative there is an ongoing risk that he may engage with individuals encourage negative behaviour.

77. I have considered [Mr EPU’s] recent conduct and the above information that may be considered to lower the risk of reoffending. However, in light of his criminal record and his untested ability in being able to refrain from illicit drug and alcohol abuse in the community and ongoing propensity for violence, I find that there is a likelihood that he will reoffend in the Australian community.

78. I accept that [Mr EPU] will have supports available to him in the community however, I am also mindful that [Mr EPU] has been reluctant to engage in trauma counselling prior to any release from detention and I remain concerned that if [Mr EPU] does not choose to mindfully engage with the supports available to him pending his release, this may increase his risk of reoffending. I find that the violence involved in [Mr EPU’s] offending could have serious consequences for the community if he were to reoffend and that great harm to the community could result if he were to engage in similar behaviour and I find that any level of risk is unacceptable.

(Emphasis added.)

61    The Minister also took into consideration that the applicant had applied for a Protection (Class XA) visa for the purposes of remaining permanently in Australia and considered the risk of harm to the Australian community “in the context of the permanent stay period and specific purposes of the visa application” (at [79]).

62    The Minister concluded that if Mr EPU were allowed to remain in Australia, there was a risk that he would engage in criminal conduct and found that Mr EPU did not pass the character test by virtue of s 501(6)(d)(i) of the Act (at [80]–[81]).

4.7.2    Minister’s reasons for the exercise of the discretion to refuse to grant Mr EPU a visa ([82]–[159])

63    The Minister then turned to consider whether to exercise his discretion not to refuse to grant Mr EPU a visa. In doing so, he had regard to Direction 90 on the basis that, while he was not bound by the Direction, he was mindful that Mr EPU had made representations on the understanding that Direction 90 “provides a broad indication of the types of issues that the Minister, when acting personally, is likely to take into account” (at [84]). Consistently with this, the Minister considered the exercise of his discretion having regard to the Primary and Other Considerations identified in the Direction.

4.7.2.1    Primary consideration: Protection of the Australian community from criminal or other serious conduct

64    In considering the primary consideration in cl 8.1 of Direction 90, namely, protection of the Australian community from criminal or other serious conduct, the Minister commenced by referring to the principle stated in the Direction that entering or remaining Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law-abiding and will not cause or threaten harm to individuals or the Australian community (at [86]). Against that context, the Minister made the following findings:

(1)    While accepting that confinement in a youth detention centre does not equate with a term of imprisonment which an adult would receive, the Minister rejected the claim that Mr EPU’s offences were not of a particularly serious nature on account of the punishments imposed. Rather, the Minister found that “[t]hree of the offences … involved actual or implied violence and in my view, are of a serious nature due to the risk of harm that can be inflicted on others as a result of violent actions” (at [94]; emphasis added).

(2)    While the Minister accepted the Tribunal’s finding (as earlier conceded by the Minister) that Mr EPU is not a danger to the Australian community, the Minister was not satisfied that that finding “demonstrates that [he is] not at risk of engaging in criminal conduct in Australia for the purpose of section 501(6)(d)(i) of the Act” (at [97]).

(3)    On the question of risk to the Australian community, the Minister referred back to his earlier discussion under the heading “Risk of engaging in criminal conduct” (discussed at [44]–[46] above) and found that:

98. … On balance I consider there to be a low likelihood that [Mr EPU] will reoffend. Nevertheless, I consider that, should [Mr EPU] engage in similar conduct again it may result in physical harm to members of the community. I have given this weight in favour of visa refusal.

4.7.2.2    Primary consideration: Best interests of minor children

65    The Minister found that it was in the best interests of any minor children in Mr EPU’s life that the visa application not be refused (referring to the applicant’s young nephew and niece residing in Australia) (Minister’s reasons at [99]–[101]). No ground of judicial review challenges this finding.

4.7.2.3    Primary consideration: Expectations of the Australian community

66    For reasons I later explain, the Minister rejected the submission that he should assess community expectations having regard to the applicant’s particular circumstances. Rather, the Minister found that the broader Australian community’s general expectations about non-citizens, as articulated in Direction 90, apply in this case and should be given significant weight in favour of refusal of Mr EPU’s visa application.

4.7.2.4    Other considerations: International non-refoulement obligations

67    Next, the Minister considered other considerations specified in the Direction to be taken into account where relevant, turning first to international non-refoulement obligations.

68    The Minister acknowledged that while he was not legally bound by Direction 90, he was “mindful that if non-refoulement obligations were engaged in this case, that would be a factor in favour of not refusing [Mr EPU’s] visa application” (at [109]).

69    The Minister set out the applicant’s claims about the risk of harm he would face if returned to Country X as follows:

110. … [Mr EPU] submits that he grew up in [Country X] where he witnessed violence on a daily basis. When he was 8 years of age, [Mr EPU], along with his brothers were sent to a military training school for about one year where they were taught to use guns, and how to march. [Mr EPU] also witnessed the killing of his best friend and his best friend’s mother who was shot in the head on the balcony across from [Mr EPU].

111. [Mr EPU] fears that if he returns to [Country X] he will be killed as a result of the fighting between the Sunni and Alawite groups. As a young Sunni with some basic military training, [Mr EPU] fears that he will be made to fight and kill; or be killed. [Mr EPU] states that if he were to refuse to join an extremist Sunni group then others may think that he is pro-Alawite and kill him.

70    The Minister noted that similar claims had previously been “comprehensively assessed” by the Tribunal which, in considering Mr EPU’s application for a protection visa, found that his claimed fears would be for the essential and significant reason of his membership of a particular social group (Sunni) and that if returned to Country X, he would face homelessness without family support or protection (Minister’s reasons at [112]). The Minister also noted that the Tribunal found that the harm he feared included arbitrary arrest and detention, physical and emotional mistreatment during detention, possibly amounting to torture, and that as a then adolescent, he would be particularly vulnerable to such forms of harm (Minister’s reasons at [113]). Thus, as the Minister noted, the Tribunal was satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act with respect to Country X, as well as finding more recently on 11 March 2021 that Mr EPU was not a danger to the Australian community for the purposes of the criterion in s 36(1C)(b) of the Act (Minister’s reasons at [114]–[115]).

71    The Minister expressly accepted the findings by the Tribunal at [116] of his reasons as follows and acknowledged that:

116. … As a young male of Sunni faith I accept that that [sic] he would be at risk of arbitrary arrest and subsequent detention where he could be exposed to physical and psychological mistreatment which could amount to torture. I note that the consequences to [Mr EPU] should that occur would be physical and psychological injury or even death. Accordingly, I accept that [Mr EPU] is a person in respect of whom Australia has non-refoulement obligations.

72    However, the Minister took into account that according to s 197C(3) of the Act, the protection finding for Mr EPU means that his removal to Country X is neither required nor authorised by s 198 of the Act (at [117]).

73    The Minister concluded at [118] that “the above consideration weighs in favour of non-refusal” of Mr EPU’s application for a protection visa.

4.7.2.5    Other consideration: extent of impediments if removed to Country X and links to the Australian community

74    The Minister considered the extent of the impediments which the applicant would face if removed from Australia to Country X in establishing himself and maintaining basic living standards in some detail. The Minister concluded:

129. Overall, I find that [Mr EPU] will face practical, financial and emotional hardship in the event he were to be returned to [Country X], due to his age, lack of family and social support and lack of medical and economic supports.

130. As noted above, the protection finding made for [Mr EPU] means that s 198 of the Act does not require or authorise the removal of [Mr EPU] to [Country X] (s127C(3)). In this regard, I have noted that the limited circumstances in which removal is required, as set out in s127C(3)(c), do not presently exist for [Mr EPU]. Therefore, even if [Mr EPU] would face the impediments described above in [Country X], I find that those impediments will not eventuate as a result of my decision to refuse his visa application.

75    No challenges were made to these findings. Nor is there any challenge to the findings by the Minister about Mr EPU’s links to Australia, including that his immediate family in Australia would experience emotional hardship, especially his stepsister (at [131]–138]).

4.7.3    Additional matters considered: legal consequences of the refusal decision

76    For reasons I later explain in relation to Grounds 6 and 7, the Minister accepted that Mr EPU faced the prospect of indefinite immigration detention which was likely to exacerbate his mental health issues and weighed in favour of not refusing the visa application. The Minister also found that notwithstanding the restrictions upon Mr EPU’s capacity to apply for a visa which would flow from a refusal decision under s 501, the prospects of ministerial intervention under the personal, non-compellable powers in ss 195A and 197AB of the Act were not unrealistic for Mr EPU.

4.7.4    Additional matters considered: effects of prolonged detention

77    Finally, the Minister’s reasons addressed representations made on behalf of Mr EPU regarding the effects of prolonged immigration detention on him. The Minister stated that he had considered Dr Zimmerman’s report noting that the atmosphere in the MITA causes the applicant great stress as everyone in there is distressed and worried about their future and that Mr EPU reports disturbed sleep patterns and claims to have lost 15 kg since being detained through loss of energy and motivation to stay active (at [151]). The Minister also stated that he had considered the updated report by Dr Zimmerman dated 9 July 2021 which noted that prolonged or indefinite detention will continue to impact Mr EPU’s mental health adversely and expressed concern that any further deterioration in Mr EPU’s mental state may increase the risk of him developing suicidal impulses or behaviour (at [152]). The Minister also stated that he “acknowledged” Ms Fitzgerald’s comment that Mr EPU had struggled in the detention centre environment and his mental health had been impacted resulting in incidents including:

•    Threatening self-harm and stating that he wanted to kill himself

•    Self-harming by using a piece of metal to cut his own stomach; banging his head and body against objects; striking his leg with crutches; leaving marks on his arms from using a screw to scrape his arms with

•    Hitting his own head with a TV remote control out of boredom

•    Punching a cabinet in the shower area several times and attempting to hit his head on the same cabinet whilst suffering pain from a knee injury

•    Refusing to eat and drink and reporting feeling alone and unsupported.

(Minister’s reasons at [153].)

78    The Minister stated that he had taken into consideration statements regarding the lack of privacy that Mr EPU previously experienced before turning 18 years of age in the detention centre environment, with an officer staying constantly at arms-length only from the applicant (at [155]). The Minister also referred to the submission by Ms Fitzgerald that the applicant at times felt unsafe in the detention centre environment reporting various specific incidents involving SERCO officers and other detainees in 2018 (at [156]). The Minister then stated that:

157. I have considered [Mr EPU’s] statements that he is experiencing difficulty in the MITA, which is affecting his mental health. I acknowledge that [Mr EPU] is an adolescent and that there are no others of his age of the current facility. [Mr EPU] states that he often does not feel safe stating that there are serious criminals being housed in his current detention facility and he often feels scared for his safety. I acknowledge [Mr EPU’s] feelings however I note that as a minor, [Mr EPU] had carers with him at all times and that there is no evidence that he was placed in any danger.

158. I note Dr O’Brien’s submission that [Mr EPU] has struggled with being restrained when attending external appointments and with the level of security applied to him. I accepted that [Mr EPU] feels demoralised and ashamed when other[s] see him in handcuffs however I also note that this is done for security purposes.

159. I accept that [Mr EPU] has struggled emotionally and physically in the detention centre environment.

4.7.5    The Minister’s conclusion

79    The Minister concluded that the best interests of minor children in Mr EPU’s life as a primary consideration, weighs “significantly” in favour of non-refusal and that a number of other factors also weighed in favour of the decision not to refuse, including international non-refoulement obligations (at [162]–[163]). However, the Minister found that he had also given “significant weight to the serious and violent nature of [the applicant’s] offending” and “considered that the Australian community, as a norm, expects the Government to not allow non-citizens who have engaged in violent conduct causing physical injury to another person to remain in Australia”, being a primary consideration to which he gave significant weight towards refusal of the visa application (at [165]). The Minister also stated that he was “cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations may be insufficient for me to decide not to refuse the visa, even applying a higher tolerance of risk of reoffending by [Mr EPU], than I otherwise would because he has lived in Australia from a young age” (at [166]). Accordingly, the Minister found that those considerations favouring non-refusal were outweighed by the risk of harm posed to the Australian community and the expectations of the Australian community in this case, and decided to exercise his discretion to refuse to grant the visa under s 501(1) of the Act.

4.8    The present application for judicial review

80    The application for judicial review was instituted before the Minister’s 2021 refusal decision was made. At the time proceedings were instituted, Mr EPU sought, among other things, a mandatory injunction requiring the Minister to grant him a protection visa within 24 hours and, later by the further amended originating application, also a writ of prohibition restraining any minister from refusing the protection visa application under s 501(1) of the Act. Declaratory relief was also sought to the effect that:

(1)    insofar as cl 866.225(a) of Sch 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations) prescribes public interest criterion (PIC) 4001 as a criterion for the grant of a protection visa, it is not a valid criterion for the purposes of s 35A(6)(b) of the Act; and

(2)    on or around 11 March 2021, all of the (valid) criteria for the grant of a protection visa to Mr EPU were satisfied and the Minister was therefore under the duty imposed by s 65(1)(a) of the Act to grant the visa to Mr EPU.

81    An interlocutory injunction was sought by an interlocutory application filed 21 June 2021 to enjoin the Minister from making a decision under s 501(1) of the Act given that Mr EPU contended that the Minister lacked power to make a decision under that provision to refuse to grant the protection visa. In the end result, Mr EPU consented to the dismissal of the application for an interlocutory injunction on the Minister giving an undertaking in the following terms which was set out in a notation to the consent orders made on 6 July 2021:

3.    The respondent undertakes to the Court that:

a.    if the respondent refuses the applicant’s visa application under s 501(1) of the Migration Act 1958 (Cth) before final judgment in this matter and Ground 2 of the applicant’s amended application dated 18 June 2020 is upheld by the Court, then the respondent will consent to an order quashing the refusal decision under s 501(1); and

b.    without prejudice to the respondent’s rights to object on some proper ground not associated with the dismissal of the [a]pplicant’s amended interlocutory application, the respondent will otherwise consent to the applicant’s further amendment of his amended application to dated 18 June 2021 to challenge the s 501(1) refusal decision or, if such a challenge is brought in a fresh proceeding, not to raise any Anshun estoppel point in respect of those grounds.

4.    The above undertaking is given without prejudice to the respondent’s right to appeal any orders quashing the s 501(1) refusal decision, including on the basis that Ground 2 of the applicant’s amended application dated 18 June 2021 ought not to have been upheld.

82    The application for judicial review, which was originally listed for hearing on Monday, 26 July 2021, was adjourned on that day after the applicant received notice at 8:47pm on Sunday, 25 July 2021 of the Minister’s 2021 refusal decision under s 501(1) of the Act. Orders were made at the hearing on 26 July 2021 for the applicant to file a further amended originating application in light of that decision and for the parties to confer and use their best endeavours to agree categories of discovery, in default of which the applicant was to file an application for discovery and interrogatories. The costs of the adjournment were reserved.

83    By the further amended originating application filed on 9 August 2021, Mr EPU expanded the relief sought so as to include (among other things) a writ of certiorari to quash the Minister’s 2021 refusal decision.

84    Finally and as earlier mentioned, the applicant filed an interlocutory application on 21 September 2021 seeking leave to re-open following the hearing on 2 and 3 September 2021 and to file and serve a second further amended originating application in terms set out in Annexure CC-1 to the Clark affidavit. The application to re-open was opposed by the respondent. Further, while not opposing leave to amend if leave to re-open were granted, the respondent submitted that the proposed new ground lacked merit.

5.    CONSIDERATION OF THE GROUNDS FOR JUDICIAL REVIEW

5.1    Preliminary matters

85    The applicant’s legal representatives originally filed submissions on 16 April, 6 July and 22 July 2021 in respect of Grounds 1 and 2 alleging a duty to grant the protection visa before the Minister’s 2021 refusal decision was made. It will be recalled that that decision was made in the context of the undertaking given to the court on 6 July 2021, which I have quoted earlier at [81] above. Following the Minister’s decision, the applicant filed a further amended originating application dated 2 August 2021. Grounds 1 and 2 of the further amended originating application were reformulated so as to challenge the validity of the Minister’s purported exercise of power under s 501(1) to refuse Mr EPU’s protection visa application. In addition, Grounds 3 to 7 of the further amended originating application challenge the 2021 refusal decision, while Grounds 8 and 9 challenge the manner of the making of the decision. The applicant also filed an outline of written submissions in support of the further amended originating application including additional submissions on Grounds 1 and 2, as well his new grounds.

86    Logically, it is necessary first to consider Ground 1, alleging that the Minister was under a duty to immediately grant Mr EPU a Protection (Class XA) visa by virtue of s 65(1)(a) of the Act and I have, therefore, adopted that course. Further, as in my view, the application should be upheld on Grounds 7 and 6, I consider these next, before turning to address the remaining grounds and the application for leave to re-open.

5.2    Relevant statutory provisions

87    The object of the Act is to regulate in the national interest, the entry into, and presence in, Australia of non-citizens (s 4(1)). That object is relevantly advanced by empowering the Minister or her or his delegate to grant visas to non-citizens, with the Act expressly intended to be “the only source of the right of non-citizens to so enter or remain.” (ss 4(2) and 29, the Act).

88    Protection visas are a class of visa which are specified by s 35A. Provision is made for criteria specific to the grant of a protection visa in s 36 of the Act, which supplement the general criteria identified in s 65(1). Section 36 relevantly provides that:

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

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

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

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

Note:    For paragraph (b), see section 5M.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

89    Provision is made for the making of a valid application for a visa in Subdivision AA of Division 3 of Part 2 of the Act, while s 47(2) (also in Subdivision AA) imposes an obligation upon the Minister to consider a valid application for a visa. Section 47(2) in turn provides that:

The requirement to consider an application for a visa continues until:

(a)    the application is withdrawn; or

(b)    the Minister grants or refuses to grant the visa; or

(c)    the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

90    Section 65(1) of the Act provides that, subject to exceptions not presently relevant:

    … after considering a valid application for a visa, the Minister:

    (a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

    is to grant the visa; or

    (b)    if not so satisfied, is to refuse to grant the visa.

(Emphasis added.)

91    Section 65(1) turns upon the Minister’s state of satisfaction (or her or his delegate pursuant to s 496(1)) and not upon an objective assessment of the criteria for the grant of a protection visa by the Court under ss 36 and 65(1) (see by analogy Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 277 (Brennan CJ, Toohey, McHugh and Gummow JJ)). It follows, as the Minister submits, that “the burden of the [a]pplicant’s case is to persuade the Court to find, as a matter of fact, that the Minister or a delegate are actually satisfied of each of the matters specified in s 65(1)(a)”. However, the Minister also contends that the applicant has failed to discharge that burden, submitting that it is plainly not the case that the Minister or a delegate had reached the requisite state of satisfaction in relation to the criterion in PIC 4001 or, on analysis, in relation to other criteria (RS (21 July 2021) at [28]).

92    As is apparent from the terms of s 65(1)(a)(iii), one of the ways in which the grant of a visa might be prevented, and thus s 65(1)(a)(iii) not satisfied, is by an exercise of the power under s 501(1) to refuse to grant a visa on the ground that the person has not satisfied the Minister that the person passes the character test: KDSP v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] HCA 24; (2021) 95 ALJR 666 (KDSP (HCA)) at [17] (Edelman J). Specifically, s 501(1) provides that:

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

93    Section 31(3) of the Act also provides that the regulations may prescribe criteria for a visa or visas of a special class (as envisaged by s 65(1)(a)(ii)). Pursuant to that power, cl 866.225(a) of Sch 2 to the Migration Regulations relevantly specifies a time of decision criterion for the grant of a protection visa, namely, that the applicant “satisfies public interest criteria 4001 and 4003A”. PIC 4001, in turn, is found in Sch 4 to the Migration Regulations and provides that:

Either:

(a)    the person satisfies the Minister that the person passes the character test; or

(b)    the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

(c)    the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

(d)    the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

94    The reference to the character test in PIC 4001 is intended to bear the same meaning as in s 501(6) of the Act (s 13(1)(b), Legislation Act 2003 (Cth)): see also Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 at [92] (Gummow J), [188]–[189] (Hayne J), [266] (Heydon J), and [431] (Kiefel J, as her Honour then was).

95    Finally, the regulations prescribe other criteria which must be satisfied at the time of a decision on whether or not to grant the visa, including: cll 866.226, 866.227, 866.231 and 866.232 of Sch 2 to the Migration Regulations.

5.3    Did the Minister breach a duty under s 65 of the Act to grant the protection visa (Grounds 1 and 2)?

5.3.1    The applicant’s submissions

96    Grounds 1 and 2 of the further amended originating application allege that the Minister’s exercise of power under s 501(1) to refuse Mr EPU’s application for a protection visa is invalid on the basis that:

(1)    the Minister refused to grant the visa to Mr EPU based on a misconstruction of s 65(1)(a)(iii) and the erroneous assumption that cl 866.255(a) of the Migration Regulations validly prescribes public interest criterion (PIC) 4001 as a criterion for the grant of a protection visa;

(2)    properly construed, the power under s 501 to refuse the visa on character grounds can be validly exercised only if the application for a protection visa is not presently subject to the duty in s 65(1)(a) to grant the visa;

(3)    the criterion in PIC 4001 is invalid by reason of being inconsistent with the Act;

(4)    it follows that there were no valid criteria for the grant of the visa which remained unsatisfied as at 11 March 2021 (when the Tribunal remitted the decision to the Minister with a direction that Mr EPU satisfied the criterion in s 36(1C)(b) of the Act); and

(5)    the Minister was therefore under a duty to immediately grant Mr EPU a Protection (Class XA) visa by virtue of s 65(1)(a) and could not lawfully defer the making of that decision in order to consider whether to refuse the visa under s 501(1) of the Act.

97    The applicant’s submission that the Minister lacked power under s 65 to delay the grant of the visa while awaiting the outcome of the exercise of the power in s 501(1) where all other criteria were met can be summarised as follows.

(1)    The power in s 501 to refuse to grant the visa is a power “completely independent of” the power to refuse under s 65(1)(b) of the Act (T, 3/09/21, 125.37 (Mr Guo)).

(2)    Section 65 is the leading provision while s 501 is the subordinate provision (referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355) because the occasion for considering s 501(1) does not even arise if there is no pending visa application (being “a very powerful indication that section 65 is the leading provision” (T, 3/09/21, 127.31 (Mr Guo))).

(3)    The words chosen by the Parliament in s 65(1)(a)(iii) that the grant of the visa “is not prevented by … s 501” can only be read as meaning not prevented by a (pre-existing) exercise of the power to refuse under s 501, as opposed to “[not] prevented by the pendency of the consideration of whether to exercise” the power in s 501 (T, 3/09/21, 125.44-47) (Mr Guo)).

(4)    Section 65 imposes a duty to grant a visa and “the ordinary rule of construction is, unless there’[s] something to indicate the contrary, a duty is to be performed as soon as reasonably practicable” (T, 3/09/21, 128.33-34 (Mr Guo)). The time required for the potentially lengthy, “woolly and open textured” nature of the inquiry under s 501(6) “can’t trump the need for a visa application to be determined promptly” which is implicit in s 65. That is particularly so where the Parliament has enacted “a fallback mechanism” being the power to cancel a visa, including without natural justice, on character grounds (T, 3/09/21, 129.1-30 (Mr Guo)).

98    However, Mr Guo, counsel for the applicant, accepted that even if his construction of the interaction between ss 65 and 501(1) was correct, his argument that the Minister’s decision to refuse the grant of the visa under s 501 was invalid could succeed only if there were no outstanding criteria for the grant of the visa as at 11 March 2021 when the Tribunal remitted the decision back to the Minister. This means, as Mr Guo also accepted, that he must succeed on his argument that PIC 4001 is invalid. Otherwise if it was valid, then as at 11 March 2021 there were outstanding criteria yet to be assessed and the duty in s 65 to grant the visa had not crystallised.

5.3.2    Grounds 1 and 2 must be dismissed

99    There are three essential propositions underpinning the applicant’s submissions on Grounds 1 and 2:

(1)    As a matter of statutory construction:

(a)    once the Minister or a delegate is satisfied that all of the criteria for the grant of a visa are met, she or he is under an immediate duty to grant the visa; and

(b)    once the duty to grant the visa has arisen, any subsequent exercise of the power to refuse the visa under s 501 is invalid; and

(2)    the evidence established that the duty to grant Mr EPU’s visa arose in this case at some time in the past.

100    The first two propositions (subparas (1)(a) and (b) above) cannot be sustained in light of the decision of Edelman J in KDSP (HCA) delivered on 4 August 2021. While the Minister accepted that the reasoning in KDSP (HCA) is not binding upon this Court as it was a decision of a single judge of the High Court, the Minister submitted that it is nonetheless of great persuasive authority (see eg Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 at 654 (Jacobs P), 664 (Hope JA) (Reynolds JA agreeing with both Jacobs P and Hope JA); Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737 at [15]–[16] (the Court)). The applicant submitted that the test posed by these authorities “overstated” the position, submitting instead that the principle was only that there should not be a lower court departure from “long-established authority and seriously considered dicta of a majority of [the High] Court” (referring to Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 (Farah) at [134] (the Court); emphasis in the original). However, the High Court in Farah was not endorsing the converse proposition, namely, that there could be lower court departure where the two limbs of the “test” in Farah (as it was described by the applicant) were not met: cf the applicant’s reply filed 1 September 2021 at [2]. It follows that the Minister’s submission as to the appropriate test should be accepted as correct.

101    The applicant then sought to distinguish KDSP (HCA) even though, in the alternative, the applicant made the formal submission that KDSP (HCA) was wrongly decided (applicant’s reply dated 1 September 2021 at [3]).

102    By way of background, in KDSP (HCA) the Tribunal had set aside a decision under s 501 by a delegate to refuse the applicant’s application for a Safe Haven Enterprise visa (SHEV). However, the Minister then made a personal decision under s 501A(2)(a) substituting a decision to refuse to grant the SHEV. The applicant had argued unsuccessfully in the Federal Court that (among other things) the Minister had failed to make a decision on his visa application within a reasonable time as a consequence of which the Minister no longer had the power to refuse a visa under s 501A(2): KDSP (FCAFC). The applicant sought special leave to appeal from that decision and also instituted parallel proceedings arguably out of time in the original jurisdiction of the High Court in which he sought to raise additional and new grounds. The application for special leave to appeal was dismissed by Gordon and Edelman JJ on 11 February 2021: [2021] HCATrans 20. Subsequently in KDSP (HCA), Edelman J dismissed the application for an extension of time within which to institute the original jurisdiction proceeding and the substantive application to the extent that an extension of time was not required. In the absence of submissions on abuse of process, his Honour rejected the applications on the grounds that they lacked any merit (at [39]). It follows that the reasons for holding that the grounds lacked any merit which I set out below comprise part of the ratio of the decision in KDSP (HCA) and are not, as the applicant here submitted, obiter dicta. In any event, even if they were obiter, I consider that his Honour was plainly correct in his understanding of the interaction between ss 65, 501 and 501A(2)(a) and cl 790.226(a) and PIC 4001.

103    Relevantly, Edelman J held first that the factual premise that all of the criteria for the grant of a SHEV had been satisfied was not established by the evidence. Rather, his Honour found that while the evidence suggested that the first delegate “had reached, at least, a preliminary or indicative view” that Australia owed protection obligations to Mr KDSP, it did not establish that at any time the first delegate was satisfied that all of the requirements for the grant of a SHEV were met (at [43]). To the contrary, his Honour inferred from the referral of the visa application to VACCU that the first delegate “had, at the least, doubts about whether PIC 4001, and the character criteria, had been met” (at [43]). As I explain below, in this proceeding the applicant has also failed to establish this factual premise of his case.

104    Secondly, Edelman J dismissed the challenge that PIC 4001 was void for uncertainty as “it is plain beyond argument that “the character test” to which PIC 4001 refers is not some new, undefined character test. Rather, it is the character test set out in s 501(6)” (emphasis in the original). This aspect of KDSP (HCA) is not challenged by Mr EPU.

105    Thirdly, with respect to the alternative basis on which the validity of PIC 4001 was challenged, Edelman J held that:

47. The second basis for KDSP’s challenge to the validity of PIC 4001 insofar as it is applied by cl 790.226(a) was to suggest that the clause had transformed the discretionary nature of the Minister’s power to make a decision under the various parts of s 501 into a mandatory duty to make such a decision. In other words, the mandatory nature of cl 790.226(a) in its application of PIC 4001 had purported to contradict the discretionary nature of s 501, creating an inconsistency between the Migration Act and the Migration Regulations. But there is no such mandatory requirement in PIC 4001 and no such contradiction. Although cl 790.226(a) makes the satisfaction of PIC 4001 mandatory for the grant of the SHEV, it does not require the Minister to exercise the power under s 501. For instance, the Minister might not exercise any power under s 501 but PIC 4001 could be satisfied by para (b) if a delegate of the Minister is “satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test”.

106    Counsel for Mr EPU submitted that the decision of Edelman in this respect could be distinguished on the basis that paragraph [47] of KDSP:

… does not address the invalidity argument put in this case, which is that cl 866.225(a) invalidly pu[r]ports to make it a criterion for the grant of a protection visa that there be: first, consideration (in every case) given to exercising the discretion in s 501; and second, that the consideration result in non-exercise. In contrast, Edelman J only concluded that the corresponding cl 790.226(a) ‘does not require the Minister to exercise the power under s 501’.

(AS (30 Aug 2021) at [5]; emphasis added.)

107    As such, it appears that Mr EPU’s contention is that PIC 4001 is inconsistent with the Act and invalid because it elevates consideration under s 501, which the Act provides is a discretionary matter, into a mandatory requirement (see also AS (16 April 2021) at [31]). However, as the Minister submits, no such requirement is imposed by PIC 4001. To the contrary, paragraph (b) of PIC 4001 is satisfied if the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test. While this does require the Minister or her or his delegate to turn their minds to whether the exercise of the power in s 501 should be considered, it does not follow that PIC 4001 is inconsistent with the Act. Rather, as the Minister submits, “[g]iven that the Act confers the power in s 501, it cannot be inconsistent with the Act for a visa criterion to be prescribed which requires the Min[i]ster or delegates to turn their minds to whether exercise of that very power should be considered in a particular case” (RS (31 Aug 2021) at [13]).

108    Fourthly, Edelman J rejected the further ground challenging the lawfulness of the process and policy by which a delegate with authority to perform the duty under s 65 would refer the application to VACCU for consideration of whether the Minister’s power under s 501 should be exercised. Rather, his Honour held that:

50. … There is nothing in the Migration Act which prevents an officer with delegated power to make a decision under s 65 from forming indicative or preliminary views prior to making the decision. Nor is there anything which prevents the officer from referring the application for a decision under s 501. Such a referral does not involve a piecemeal approach to a s 65 decision. There is only ever one decision made under s 65.

…

53. The problem with KDSP’s submission is that it seeks to segment a single decision into various discrete decisions. A delegate of the Minister who is considering the grant of a visa under s 65 makes only one decision – a binary decision to grant (s 65 (1) (a)) or to refuse to grant (s 65(1)(b)) a visa upon consideration of a valid application – not a series of stepped decisions. …

54. There is, therefore, no reason why the single decision made under s 65 could not be deferred pending consideration by the Minister, or another delegate, of whether or not to exercise the power under s 501. The power under s 65 must still be made within a reasonable time but what amounts to a reasonable time is determined “having regard to the circumstances of the particular case within the context of the decision-making framework established by the Act”. That decision-making framework includes a reasonable opportunity, where relevant, for the Minister or delegate (where permitted) to consider, and exercise, any powers under s 501. Indeed, the condition in s 65(1)(a)(iii) that the “grant of the visa is not prevented by section … 501 (special power to refuse or cancel) or any other provision of this Act” contemplates that the Minister will at least have an opportunity to exercise that power. It is both lawful and desirable for the Department to develop policies and processes to facilitate the exercise of powers such as those under s 501 consistently with a decision under s 65.

55. The departmental policy permissibly allowed the delegate who performs the duty imposed by s 65(1) to form views on whether the visa applicant satisfies criteria other than those going to character and security and to await a separate decision under s 501. The views formed by a delegate holding a delegation to make a decision under s 65, however firmly held and whether or not recorded, could only ever be preliminary or indicative views, since the relevant time for making a decision is the time at which the delegate considers all criteria together. …

(Emphasis added.)

109    As such, his Honour held that PIC 4001 and cl 790.226(a) were not void for uncertainty or ultra vires the regulation-making power in s 504 of the Act (at [57]).

110    Fifthly, for the same reasons, Edelman J rejected Ground 4 of the proposed judicial review application that the Minister had no power to make the decision under s 501(1) on 21 July 2017 (when he purported to do so) as by that time Mr KDSP had met all of the criteria for the grant of the SHEV (at [58]).

111    Finally, his Honour held, in rejecting Ground 5 and holding that the Minister had jurisdiction to make a decision under s 501A(2) even if the decision of the Tribunal was invalid:

69. Sections 501(1) and 501A(2) of the Migration Act operate irrespective of whether a person meets all requirements for the grant of a visa under s 65, since the power to grant a visa under s 65 requires, by s 65(1)(a)(iii), that the grant of the Visa “is not prevented by section … 501 (special power to refuse or cancel) or any other provision of this Act”. The very purpose of ss 501(1) and 501A(2) is to permit the refusal of the visa even if the s 65 requirements for the grant of a visa are otherwise met. The Minister’s powers under ss 501(1) and 501A(2) are therefore not spent even if the visa should have otherwise been granted under s 65, but has not been granted.

70. The Minister’s duty to consider a valid visa application under s 47, and the Minister’s ability to exercise the powers under ss 501(1) and 501A(2), do not come to an end pursuant to s 47(2)(b) merely because a visa should have been granted under s 65. As Bromberg J held in the Full Court of the Federal Court in the proceedings in which this fifth ground could have been agitated, the Minister’s power under s 501A(2) “is a step in the performance of the duty imposed by s 65”. Similarly, O’Callaghan and Steward JJ said that s 501(1) and visa criteria such as the criterion prescribed in s 36(1C) are “cumulative requirements”.

112    It follows that the decision of Edelman J in KDSP (HCA) is fatal to the applicant’s contentions here. In common with Mr KDSP’s submissions, Mr EPU also seeks to segment a single decision into various discrete decisions. Contrary to the applicant’s submission, however, the power in s 501(1) is not “completely independent of” the power to grant or refuse the grant of a visa under s 65(1)(b) of the Act. Nor, contrary to the applicant’s submissions, is there any reason why the making of the decision under s 65 cannot be deferred pending consideration by the Minister of the question whether or not to exercise the power under s 501. Rather, applying the decision in KDSP (HCA), there is only one decision made under s 65, and s 65 itself contemplates that, where relevant, the Minister or delegate will have a reasonable opportunity to consider, and exercise, the powers under s 501. Furthermore, “the very purpose of sections 501(1) and 501A(2) is to permit the refusal of a visa even if the s 65 requirements for the grant of a visa are otherwise met” (KDSP (HCA) at [69] (Edelman J)). The fact, therefore, that the s 65 criteria were otherwise met did not constitute an impediment to the exercise of the power under s 501 or to consideration of the exercise of that power. As such, as the Minister submitted, “[n]ow that a decision has been made by the Minister under s 501(1), it is simply immaterial whether or not a visa ought to have been granted at some earlier time” (RS (31 Aug 2021)) at [18]).

113    Finally and in any event, the factual premise of the applicant’s argument – that a state of satisfaction had been reached that all of the valid criteria in s 65 had been met – was not established by the evidence.

114    The applicant submitted in the Parties’ Comparative Table of Proposed Findings that an officer of the Department, Ms Shimla Kissoon, actually formed the state of satisfaction in s 65(1)(a) with respect to those criteria which are valid. It was agreed that Ms Kissoon held the classification of APS 4 on 1 April 2021 (T, 2/09/21, 10.4-24). Contrary to the applicant’s submission, however, the evidence of Mr Muir did not establish that Ms Kissoon was “the” s 65 delegate charged with considering whether Mr EPU passed the character test (as described in the departmental policy referred to at [118] below). Mr Muir’s evidence was only that Ms Kissoon was a processing officer “at particular points in time” (T, 2/09/21, 33.23-24). Nor, while accepting that it was possible, could Mr Muir say whether the processing officer was the same as the s 65 delegate in all cases or in Mr EPU’s particular case (T, 2/09/21, 32.31-33.10). Mr Muir also gave evidence that, while Ms Kissoon made the referral of Mr EPU’s visa application to VACCU on 8 April 2021 at least in the (clerical) sense of uploading the document onto the system, another officer may have been involved in the decision leading to the referral (T, 2/09/21, 20.45-27.47 and T, 2/09/21, 28.22-24).

115    In this regard, I also accept Mr Muir’s evidence that the words checked in the s 501 case referral pro-forma to VACCU that the “Applicant is Schedule 2 criteria met” “are taken to mean that the applicant has been assessed as having indicatively met all [S]chedule 2 criteria, which then paves the way for a – a character consideration” (T, 2/09/21, 24.24-26; emphasis added). As Mr Muir then explained (at T, 2/09/21, 24.26-30):

Pending the outcome of that character consideration – for instance, if it was a non-adverse outcome – the case would be returned to the referring area where the expectation would be that they would need to – to revisit all time of decision criteria to see that they are met at that point of time and that a section 65 delegate is satisfied of that.

116    As Mr Muir elaborated, the criteria for the grant of a visa “are at time of decision, so I don’t see how you could have evidence [from which it could be supposed that those criteria could become unmet] ahead of that time, necessarily” and “one of the key things which might result [over the effluxion of time] in that is new information” might become available which cannot be predicted (T, 2/09/21, 30.4-5 and 30.37-41).

117    The applicant’s submission to the contrary seeks to set up a staged decision-making process. This is inconsistent with the Act which envisages one decision being made under s 65 at which point in time the decision-maker must personally reach a state of satisfaction as to whether or not all of the criteria are met. (In so saying, I leave aside the question of whether the finding by the Tribunal that protection obligations are owed to Mr EPU could be revisited by the Minister, which does not arise in the present case).

118    The applicant also submitted that evidence produced by the Minister revealed that the s 501 delegate, whom the applicant submitted must also have had a s 65 delegation, was positively persuaded not to refuse Mr EPU’s application on character grounds, referring to the VAPA dated 29 April 2021 (A-STB at p. 740). As such, the applicant submitted that the s 501 delegate must also have known that all other criteria were satisfied because a referral to VACCU only occurs where that is the case, referring to the departmental policy set out in Section 501: The character test, visa refusal and visa cancellation, document ID VM-1001 (re-issued 15 April 2021) (reproduced in the first Muir affidavit at p. 273 of Annexure NLM-15) (the Section 501 Departmental Policy) (AS (30 Aug 2021) at [4]).

119    It can reasonably be inferred that the s 501 delegate was familiar with the Section 501 Departmental Policy, including the advice set out therein that a referral for consideration of a visa application under s 501 should be made only if the visa applicant satisfies all other criteria for the grant of the visa. It can also be inferred that the s 501 delegate was therefore well aware that others were likely to have formed an indicative view that all other criteria for the visa were met at the time of the referral. This accords with Mr Muir’s evidence that “my clear understanding is that we require all criteria to be indicatively met before it is referred for a character assessment” (T, 2/09/21, 29.37-38; emphasis added). That does not, however, mean that the s 501 delegate was personally satisfied that Mr EPU had met all of the other criteria necessary for the grant of the visa under s 65 of the Act, as the Minister correctly submits (RS (31 Aug 2021) at [21]).

120    Furthermore, as I have earlier found, the VAPA, with respect, falls well short of establishing that a “decision” had been made at that time not to refuse the visa under s 501. First, the delegate’s “views” were sought for the purposes of a “Client Brief”, ie, the delegate was not being asked to decide whether the visa application should be refused under s 501 but for her views to assist in the preparation of a “Client Brief” for the Minister, as in fact was prepared. Secondly and consistently with this, the delegate who signed off on the assessment found only that “[o]n the basis of the evidence currently before me I am minded to … Not Refuse” (emphasis added). This is not the language of a person reaching a concluded view on the exercise of the power under s 501(1), as the Minister submitted (RS (31 Aug 2021) at [20]). Rather, the language indicates that the delegate was expressing a view only on whether the visa should be refused under s 501, and only on the basis of the material “currently” before her. This accords with Mr Muir’s evidence regarding the purpose of a VAPA “for views” which I have earlier discussed at [27] above and which I accept. In line with this, Mr Muir further explained that:

Assessments are preliminary or indicative because many of the criteria for the grant of visas are “time of decision” criteria, and so it is possible for some such criteria that, by the time the decision-maker comes to make a decision, a criterion which was previously satisfied on a preliminary or indicative basis is no longer satisfied (e.g. because of some intervening circumstance or further information). Preliminary or indicative assessments are often made by different officers, who may or may not hold a delegation to make decisions under s 65.

121    Moreover, as Edelman J held in KDSP (HCA) at [50], nothing in the Act prevents an officer to whom the power to make a decision under s 65 has been delegated from forming such indicative or preliminary views before a decision is made by that officer (or another person with the requisite authority). Nor did the applicant contend that any administrative practice of designating assessments of individual criteria as merely indicative was unlawful (T, 3/09/21, 130.18-22 and 130.34-37 (Mr Guo)). Similarly, in Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197; (2021) 389 ALR 431, Perram J explained that:

37. … the process of reasoning on the facts of the case occurs at the moment the Tribunal makes its decision. It is only at that moment that a decision is made and talk of reasons can make any sense. Speaking extra-curially of the will-o-wisp nature of draft judgments, the late great Hely J of this Court once drily observed ‘You can always add a “not”’. If that be true – and it certainly is – the only reasoning process which eventually takes place is the one manifest in the statement of reasons. Everything else is writ in water.

122    It follows that the existence of an indicative assessment of criteria, such as that given by the s 501 delegate in the VAPA, does not provide a basis on which to hold that the delegate was satisfied at that time that the criteria for the grant of a visa under s 65(1) of the Act were met. As the Minister submitted:

… The visa criteria have to be met at the time of decision and to come together in the mind of the Minister or an individual delegate for the purpose of s 65(1)(a). In circumstances where the [a]pplicant’s case raises character concerns, that cannot occur unless and until the application has been considered by the VACCU and returned to the visa processing area. …

(RS (21 July 2021) at [40].)

123    Grounds 1 and 2 are therefore dismissed.

5.4    Is the finding that the prospects of ministerial intervention was not “unrealistic” illogical or irrational (Ground 7)?

5.4.1    Relevant principles

124    By Ground 7, the applicant contends that the Minister’s reasons for concluding that he “[did] not consider the prospects of ministerial intervention under s 195A or 197AB of the Act to be unrealistic” were unreasonable, illogical or irrational. It was not in issue that if this error was established, it would constitute an error of a jurisdictional kind invalidating the Minister’s decision.

125    The alleged error in the Minister’s finding of fact falls to be analysed through the prism of illogicality or irrationality. As McKerracher J explained in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [83], “[t]he fact finding itself can only be impugned where the factual determination is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”” (citing Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 (Ex parte Applicant S20/2002) at [52] (McHugh and Gummow JJ (with whose reasons Callinan J agreed)).

126    The relevant principles are well established and were not in issue. These were conveniently summarised by the Full Court in Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; (2020) 280 FCR 1 (in a passage recently quoted with approval by the Full Court in QYFM v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2021] FCAFC 166 at [22]):

23    A finding of illogicality or irrationality requires the court to find that the [decision-maker’s] decision was one at which no rational or logical decision-maker could have arrived on the same evidence: SZMDS at [130].

24    As the Full Court explained in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47] (Griffiths, Perry and Bromwich JJ):

... for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 ... at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 ... at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result ...

25    In DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85]-[86], primarily by reference to the High Court’s decision in SZMDS, the Full Court (Beach, O’Callaghan and Anastassiou JJ) said:

Differences of degree, impression and empirical judg[e]ment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [131]:

The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

Moreover, at [135] their Honours continued:

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.

5.4.2    Consideration

127    Relevantly, the Minister stated that he was aware that, as a result of a refusal decision under s 501(1), there would be significant restrictions on the applicant’s ability to apply for another visa under the Act and that as a result, without leaving the migration zone, Mr EPU “will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), which he could only apply for in response to an invitation” (at [145]). The Minister then continued as follows:

146. However, I am mindful that even if I refuse [Mr EPU’s] visa application, a Minister administering the Act has a personal non-compellable power in s195A of the Act to grant another visa to him if the Minister thinks it is in the public interest to do so. The Minister also has a personal non-compellable power in s197AB to make a residence determination if the Minister thinks it is in the public interest to do so. Such a determination would enable [Mr EPU] to leave held detention and instead be detained at a specified place in the community, subject to appropriate conditions.

147. I acknowledge that any consideration and pursuit of possible alternatives to held detention would take some time, and that in the meantime [Mr EPU] will remain in held detention.

148. However, I do not consider the prospects of ministerial intervention under s195A or 197AB of the Act to be unrealistic in relation to [Mr EPU] simply because his visa has been refused on character grounds and I have decided to refuse the visa application. Any consideration by myself or another Minister administering the Act for the purposes of s195A or 197AB will be based on the circumstances existing at the time of the decision.

(Emphasis added.)

128    The applicant submitted that the statement that “the prospects of ministerial intervention under s195A or 197AB of the Act” were not “unrealistic”, “runs against ministerial policy, and is difficult to reconcile with the history showing that this Executive has barely exercised that power for the benefit of people in the position of the [a]pplicant” (AS (30 Aug 2021) at [30]). With respect to ministerial policy, it was not in issue that the Minister’s Guidelines for both provisions state that cases should “generally” not be referred for consideration where a person has had a visa refused under s 501 of the Act or “presents character issues that indicate that they may fail the character test under section 501 of the Act” (affidavit of Gregory Hanson affirmed 9 August 2021, Annexures GH-3 and GH-4). With respect to historical evidence of the exercise of the powers in ss 195A and 197AB, the applicant relied upon data produced by the Department (Exhibit A-7) to demonstrate that the power in s 195A of the Act had been exercised to grant a visa to a person who had failed the character test and is owed non-refoulement obligations on only a handful of occasions. The figures in Exhibit A-7 were not in issue (T, 2/09/21, 77.46) and were as follows:

Granted a visa under s 195A of the Migration Act where the visa holder failed s 501 and where non-refoulement obligations were owed

129    The applicant submitted that the position is even starker with respect to s 197AB, with the data suggesting that the power had been exercised on even fewer occasions (although the applicant accepted that he did not have access to the precise data) (AS (30 Aug 2021) at [33]–[34]).

130    Furthermore and importantly, Mr Guo for the applicant submitted that:

… here, in the decision of 23 July, you have a productive exercise of discretion, the very purpose of which was to keep this person in detention. … Then the Minister goes on to suggest, in the same set of reasons, “Well, there might be an exercise of power to undo the very result which I’ve just sought to achieve by exercising my discretion to keep this person in immigration detention.” That – we say, on just the lay understanding of what illogicality means, that meets that definition.

(T, 2/09/21, 80.6-14.)

131    For the reasons explained below, this last submission should be accepted.

132    First, the Minister contended that observations in other cases as to the probabilities that an applicant who fails the character test might be granted some other visa are irrelevant (RS (31 Aug 2021) at [51]). I agree with the Minister’s first contention insofar as the observations in those other cases turned upon their own facts as opposed to the circumstances in which a person might be released from immigration detention under the Act.

133    Secondly, the Minister submitted that the applicant’s use of statistical data is flawed given that it demonstrated that there had been cases where the powers have been exercised. The Minister also submitted that data as to the way in which ministerial powers have been exercised in the past does not demonstrate that future consideration of the powers will be other than on their merits, in the same way that data concerning a judge’s previous migration decisions does not demonstrate that the judge will fail to decide cases on their own merits (citing ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30).

134    It is difficult to know what inferences could safely be drawn from the bald statistics on which the applicant seeks to rely. However, the short point is that there is no evidence that the statistical data was before the Minister when he made his decision, whereas the question is whether a decision is illogical or irrational on the material before the decision-maker. As, for example, Crennan and Bell JJ held in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611:

135. … Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

135    Thirdly, the Minister submitted that circumstances may change over time resulting in a different assessment of the risk that the applicant may reoffend. For example, he submitted that the applicant’s behaviour in immigration detention might improve leading to a different assessment of the risk of future criminal conduct. Alternatively the Minister submitted that extrinsic circumstances may change, citing for example, BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929; (2019) 166 ALD 284 at [94] (Thawley J).

136    It is possible, in a particular case, that a decision-maker might rationally and logically find that possible future changes in an applicant’s circumstances may lead to a different assessment of risk and on that basis find that there is a realistic possibility that the non-citizen might be granted a visa or made subject to a residence determination in the exercise of ministerial intervention under these personal, non-compellable powers. It may also be that in some cases, a decision-maker could reach the same conclusion by reference to the realistic possibility that extrinsic circumstances may change.

137    However, the difficulty in this case is the Minister’s finding at [78] that “any level of risk is unacceptable” (emphasis added) in the section of his reasons appearing under the subheading “Conclusion on risk to community”. The use of the word “any” cannot be regarded as a mere infelicitous expression. This is because this finding was based upon the immediately preceding findings in the same sentence that “the violence involved in [Mr EPU’s] offending could have serious consequences for the community if he were to reoffend and that great harm to the community could result if he were to engage in similar behaviour” (at [78]; emphasis added) (albeit that reasonable minds may differ as to these findings in the context of a juvenile offender). For the Minister then to find at [148] that the prospects of ministerial intervention under ss 195A or 197AB of the Act are not “unrealistic” because any decision with respect to the exercise of those powers will be based on the circumstances existing at the time of the decision is illogical. This is because the exercise of either of those powers in the future would necessarily expose the community to a level of risk which could never be completely eliminated in the context of a person whom the Minister found had committed serious and violent offences in the past. It is inconsistent with “the very purpose” (to adopt the applicant’s counsel’s words) of the Minister’s decision being, in light of [78] of his reasons, to keep Mr EPU in immigration detention in order to avoid any future risk of harm to the Australian community. In other words, there is an absence of a logical connection between these two critical findings. As such, this is not merely a case where reasonable minds might have adopted different reasoning or reached a different view. It follows that Ground 7 should be upheld.

5.5    Did the Minister fail to consider the consequences for the applicant of a refusal to grant the visa (Ground 6)?

5.5.1    Relevant principles

138    Ground 6 raised the question of whether the Minister failed to consider the consequences for the applicant of refusing to grant the visa under s 501 and, in particular, that it would likely result in indefinite and therefore arbitrary detention and/or in cruel, inhuman or degrading treatment contrary to Australia’s international human rights obligations.

139    I do not understand there to be any dispute about the applicable principles which may summarised as follows.

140    First, the Minister (or her or his delegate) is required to give active intellectual or meaningful consideration to “a substantial, clearly articulated argument” advanced as demonstrating a reason why the grant of the visa should not be refused: see eg by analogy Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [87] (the Court) and Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (Omar) at [34(i)] and [36]–[37] (the Court); see also Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ (Hayne J agreeing)). Importantly, this requires, as Allsop CJ (with whom the remainder of the Full Court agreed) explained in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 (Hands), that:

3. … where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.

(Emphasis added.)

141    This passage was quoted with approval by the Full Court in Omar at [37], which also approved at [36(c)] the following passage from Tickner v Chapman (1995) 57 FCR 451 at 495 (Kiefel J (as her Honour then was)) addressing what is meant by the obligation to consider:

To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) [of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)] speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his [or her] mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say.

142    It is important, however, to avoid the danger of sliding into impermissible merits review: see eg Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30] (the Court, referring with approval to observations of Basten JA with whom Allsop P (as his Honour then was) agreed in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]); Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [32] (the Court).

143    Secondly, having invited representations on the statutory question posed by s 501(1), the Minister must consider them in the sense explained and generally the court can expect to see that consideration reflected in the reasons given by the Minister: see by analogy DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529 (DQM18) at [35] (Bromberg and Mortimer JJ). Thus, as Bromberg and Mortimer JJ explained in DQM18:

34.    Where the statutory task is to consider whether there is “another reason” to revoke the visa cancellation, an omission to explain (whether by way of express findings of fact or otherwise) why a representation which is fairly raised on the material is not a sufficient “other reason” to revoke the visa cancellation will generally raise an arguable question whether the Assistant Minister has performed the statutory task required of her or him.

144    Thirdly, as Bromberg and Mortimer JJ also explained in:

27. As the Full Court in both Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 and Omar recognised, use of language by a Minister to the effect that she or he has “considered”, “noted”, “accepted”, “recognised” or “had regard to” various matters in coming to her or his decision is not conclusive. Nor are standard phrases such as that a Minister has “given full consideration to all of the information” before her or him. Other recent Full Court decisions have endorsed this approach: see GBV18 v Minister for Home Affairs (2020) 274 FCR 202 at [30]-[32]; EVK18 v Minister for Home Affairs (2020) 274 FCR 598 at [10]-[15] and AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [47].

145    For example, in EVK18 v Minister for Home Affairs [2020] FCAFC 49; (2020) 274 FCR 598 (EVK18), the appellant contended that his clearly articulated claim that he would suffer hardship should he be returned to Jordan by reason of his mental condition had not been properly considered by the Assistant Minister. In support of that submission, the appellant relied among other things on the fact that the reasons of the Assistant Minister merely “note[d]”, stated that he had “taken into account”, or “acknowledge[d]”, evidence about the appellant’s mental health condition, thereby falling short of making findings of fact with respect to those matters. That submission was rejected by the Full Court. It held that, when read in context, the use of these terms and phrases “go beyond simply a repetition of what the claim is and, properly construed, are to be understood as an acceptance on the part of the Assistant Minister that there is factual substance to what the appellant was claiming” (EVK18 at [35]). The Full Court further held that:

35. … There is, moreover, a repeated reference by the Assistant Minister to those facts of relevance to the “mental health” of the appellant and references for different purposes. Those facts are thus separately addressed when the Assistant Minister is considering:

•    “[i]nternational non-refoulement obligations” …;

•    “[e]xtent of impediments if removed” …; and

•    the “risk to the Australian community” ….

Such consideration of the materials of relevance to the claim in respect to “mental health” goes well beyond, for example, those statements of reasons to be found in other cases which merely summarise the claims made and thereafter make no attempt to go back and try to relate those claims to the materials relied upon and to each of the matters raised for consideration. The variety of references to the materials or relevance to the appellant’s “mental health” expose an active consideration of the relevance of those claims to the matters otherwise required to be taken into account.

(Citations omitted.)

146    Ultimately, therefore, these are questions of fact and degree which turn upon the particular claims made and the reasons when fairly read as a whole.

147    Finally, a legal error by an administrative decision-maker will generally not sound in jurisdictional error if the error was not material or critical to the ultimate conclusion: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (Hossain) at [29]–[30] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2018) 95 ALJR 441 (MZAPC) and AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at [41(d)] (the Court). As Bell, Gageler and Keane JJ explained in SZMTA, “[a] breach is material to a decision only if compliance could realistically have resulted in a different decision” (at [45]; emphasis added). In turn, save where the decision made was the only decision legally available to be made:

… the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

(SZMTA at [46].)

148    In expanding upon the correct approach to materiality in the context of a finding that the Minister had failed to appreciate that the lack of an obligation to accord procedural fairness in that case did not entail a lack of power to do so, Mortimer and Bromwich JJ in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75 (Chamoun) explained that:

66. … We are not required to be satisfied it is more likely than not [that the Minister] would have exercised the power he did not appreciate he had, only that there is a realistic possibility he might have. In our opinion, the adjective “realistic” in the statements of principle by the majority in the High Court in Hossain and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that.

(Emphasis added.)

149    Their Honours further emphasised that particularly where questions of discretion and weight are involved, the Court must ensure that any assessment of materiality on judicial review does not stray into the arena of merits review (Chamoun at [69]). Rather, their Honours explained that:

70. On judicial review, where there is an identification of legal error and an assessment of whether it was an error which should be characterised as jurisdictional, there is a significant element of reconstruction involved. The reviewing court is asking: what if the repository of the power had (relevantly here) properly understood the nature of his power? That reconstructive exercise cannot simply be done by taking the reasons and findings as they stand, because those reasons are a product which incorporates the misunderstanding. The approach must be more objective, and nuanced, than that. Otherwise, there is a risk that the decision-maker’s reasons are used in a way which amounts to prejudgment. Such prejudgment would itself normally give rise to error. It cannot be used as proof of immateriality.

(See also Nguyen v Minister for Home Affairs [2019] FCAFC 128; (2019) 270 FCR 555 at [45]–[51] (the Court).)

150    The majority’s judgment in the recent decision of MZAPC accords with what was said in SZMTA and Chamoun (at [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ)).

5.5.2    Consideration

151    The applicant submits that his representative made a clearly articulated argument that the legal consequence of refusal would be his indefinite detention which in turn would:

(1)    “cause him psychological harm (the harm submission)”; and

(2)    likely “see Australia breach international obligations under Articles 7 and 9 of the [International Covenant on Civil and Political Rights]” (the Arts 7 and 9 submissions).

152    In this regard, the applicant submitted that, while the Minister’s reasons must be read as including acceptance that some period of indefinite detention was likely, the Minister “merely acknowledged the [Arts 7 and 9] submission[s]”, leaving them unresolved, and failed to properly consider the claim (AS (30 Aug 2021) at [27]–[28]). In circumstances where, for the reasons given below, I find that the applicant has established that the Minister failed properly to consider the Art 7 submission, I do not consider it necessary to address whether there was a similar jurisdictional error with respect to the Minister’s consideration of the Art 9 submission.

153    Australia is a party to the ICCPR, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976, entered into force for Australia 13 November 1980). Article 9(1) of the ICCPR relevantly provides that “[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary … detention”, while Art 7 relevantly provides that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. I note that the ICCPR does not apply of its own force in Australia. Rights and obligations contained in an international convention are incorporated into Australian domestic law only to the extent to which they are enacted by statute, as the applicant implicitly accepted: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290–1 (Mason CJ and Deane J), 304 (Gaudron J agreeing on this point), 298, 302 (Toohey J) and 315 (McHugh J); Ruddock v Vadarlis (2001) 110 FCR 491 at [203] (French J, as his Honour then was). That is no answer, however, to the question of whether the Minister was required to consider the Art 7 (and Art 9) submissions and to do so in accordance with law. Nor did the Minister contend otherwise.

154    The Minister submitted first that “the claim was not sufficiently articulated as a separate claim as to require any further separate and detailed consideration by the Minister”, having regard to what was said by the Full Court in AXT19 v Minister for Home Affairs [2020] FCAFC 32 that:

56. Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the [decision-maker]. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the [decision-maker] to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the [decision-maker] to consider the claim.

(Emphasis added.)

155    The letter dated 16 July 2021 from the applicant’s representatives to VACCU (A-STB at pp. 599–635) (collectively with its attachments comprising the July 2021 letter to VACCU) detailed the Arts 7 and 9 submissions under the heading “Indefinite detention” as follows (which, given the importance of the issue, is best quoted in full):

We submit that [sic] most likely consequence of a non-revocation [sic: refusal] decision would be [Mr EPU’s] prolonged and indefinite detention.

In WKMZ, Kenny and Mortimer JJ acknowledged the gravity of this consequence, at [123]:

The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.

The right to liberty is enshrined in Article 9 of the International Covenant on Civil and Political Rights (ICCPR). Article 7 of the ICCPR provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The indefinite detention of refugees on grounds of adverse security assessments has been held by the UN Human Rights Committee to constitute arbitrary detention in breach of article 9(1) of the ICCPR [citing F.J. et al. v. Australia, No. 2233/2013, UN Human Rights Committee, 2 May 2016, [10.4] and [10.6]; F.K.A.G. et al. v. Australia, No. 2094/2011, 20 August 2013, [9.4] and [9.8]]. In those cases, the circumstances and conditions of detention were additionally found to constitute treatment contrary to article 7, inflicting “serious psychological harm”. There is clear evidence, in the form of expert opinion attached, of the serious psychological harm caused to [Mr EPU] from continued detention. In this regard Dr Zimmerman opines:

[137] Prolonged or indefinite detention is known to contribute to adverse mental health outcomes as a result of prolonged exposure to factors including uncertainty, lack of autonomy, deprivation of liberty, isolation and lack of social support. The chronic prolonged stress that [Mr EPU] will continue to experience in a situation of indefinite detention can be associated with powerlessness and a sense that life is in abeyance. With an uncertain future, mental disorders are likely to persist or worsen.

[138] [Mr EPU] is at risk of deteriorating resilience the longer he is held in indefinite detention. There is a significant correlation between the length of time detainees are held in detention and the rate of severe depression.

[139] There is a significant body of research which addresses the relationship [between] detention of those seeking asylum in Australia and various dimensions of mental wellbeing. There has been found to be a heightened risk of mental health problems as a consequence of having experienced prior traumatic episodes which is exacerbated by indefinite long term detention.

[140] As his years in detention continue, [Mr EPU] is entering a phase often characterised by the disintegration of hope. It occurs in the context of chronic prolonged stress often punctuated by periods of acute distress which may manifest as anger. A loss of self-agency (even to the level of what one can eat) and the destruction of resilience becomes more prominent.

[141] Chronic stress associated with indefinite detention may be associated with full-blown PTSD, depression and anxiety disorders. It can also be associated with failure to eat, hopelessness, sense of failed justice, distrust, hypervigilance, fighting with peers, sense that authorities can’t be trusted, problems attaining educational goals, emotional dysregulation. In [Mr EPU’s] case, there was slowing of speech, increased listlessness and flatness of his affect (moment-to-moment expression of mood) and a conscious holding at bay thoughts of giving up. These are all symptoms of depression but are very much linked to his ongoing indefinite detention. Further deterioration in his mental state with the attendant risk of the development of suicidal impulses/behaviours is a real risk.

Indeed, the violation of international law as a result of indefinite detention was contemplated by the Parliamentary Joint Committee on Human Rights in relation to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021.

Significantly, the committee stated:

1.55 Finally, to the extent that the measure results in prolonged or indefinite detention, it may also have implications for Australia’s obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment. This obligation is absolute and may never be limited. In cases considering individuals detained under Australia’s mandatory immigration detention scheme, the UN Human Rights Committee has found that the combination of subjecting individuals to arbitrary and protracted and/or indefinite detention, the absence of procedural safeguards to challenge that detention, and the difficult detention conditions, cumulatively inflicts serious psychological harm on such individuals that amounts to cruel, inhuman or degrading treatment. If the measure has the effect of subjecting persons who are owed protection obligations but ineligible for a visa to ongoing immigration detention in similarly difficult conditions, there would appear to be a risk that the measure may have implications for Australia’s obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment. The statement of compatibility does not address the implications of the measure for the prohibition against torture and ill-treatment, and accordingly, no compatibility assessment is provided with respect to this right.

Research has established that immigration detention has severe mental health consequences, exacerbating the impact of trauma and existing psychological conditions. A 2018 article in BMC Psychiatry, annexed to these submissions, provides a review of such research:

Adverse mental health consequences of immigration detention are consistently recognised across the literature. Such findings prevail even in countries where detention standards are regarded as relatively benign. Much of the clinical literature reports high levels of anxiety, depression and PTSD and poor quality of life. Whilst such mental health difficulties cannot be viewed in isolation from past histories and pre-detention traumas, which are not consistently measured across studies, controlled studies with non-detained controls uniformly suggest greater symptoms and ‘caseness’ (i.e. meeting diagnostic criteria for a specific mental health condition) in detained samples. This indicates that detention plays an independent role in contributing to poor mental health outcomes amongst asylum seekers.

[…]

All adult studies examining the association between detention duration and mental health severity (N = 5) demonstrate a significant relationship between detention duration and mental health deterioration.

[…]

Symptom severity has been found to decrease and quality of life to increase following release, but mental health difficulties persist well beyond release.

[...]

Overall, the findings suggest that detention exacerbates the mental health burden of asylum seekers and refugees and that such detention should be viewed as a traumatic experience in and of itself. This may be particularly true for those detainees who are particularly vulnerable prior to detention.

[Mr EPU] has a background of trauma. The psychological reports prepared by Dr Zimmerman outlines [sic] his various mental health conditions and past history of trauma. The indefinite, prolonged detention of [Mr EPU] would foreseeably cause him psychological harm.

It will likely see Australia breach international obligations under Articles 7 and 9 of the ICCPR. The strong possibility of this consequence should be afforded dispositive weight in this decision – he should not be refused a visa.

(Underlined emphasis in the original; emphasis in bold and italics added; footnotes omitted.)

156    As such, it is not a fair or accurate characterisation of the applicant’s position to suggest that he “relies upon a single sentence in his 13-page written submissions to the Minister …” as raising the Art 7 (and Art 9) submissions (cf RS (31 Aug 2021) at [44]).

157    Rather, the sentence from the July 2021 letter to VACCU quoted by the applicant at [26] of AS (30 August 2021) in support of Ground 6 (namely, “see Australia breach international obligations under Articles 7 and 9 of the ICCPR”), is a conclusion following an extended and detailed discussion relevantly as to:

(1)    the content of the human rights concerned;

(2)    consideration of the same in the context of indefinite immigration detention; and

(3)    the psychological harm which Mr EPU has experienced in immigration detention and is likely to suffer going forward if he remains indefinitely detained; and

(4)    why that harm is said to constitute cruel, inhuman or degrading treatment in breach of Art 7 of the ICCPR.

158    The Minister also contended that the applicant’s submission on Arts 7 and 9 of the ICCPR “was very much intermingled with his submissions on the psychological harm that would be associated with indefinite detention, which is accepted by the [a]pplicant was expressly considered” (RS (31 Aug 2021) at [46]). However, with respect, that submission misses the point. The applicant’s reliance in the July 2021 letter to VACCU on serious psychological harm to him in the passages quoted above comprised a critical aspect of his claim that indefinite, prolonged detention in his case would constitute cruel, inhuman or degrading treatment in breach of Art 7 of the ICCPR. That issue was a submission of the utmost seriousness and required the Minister to confront it directly, given the context in which the submission was made. That context included among other things:

(1)    the applicant’s past traumas and his vulnerability as a child transitioning to an adult in immigration detention with a complete lack of privacy over three years until he turned 18;

(2)    the absence of any other juvenile companionship in detention during that period of his mental and emotional development;

(3)    the medical evidence as to the link between his serious mental health issues, incidents of self-harm and threats of suicide on the one hand, and prolonged and potentially indefinite immigration detention on the other hand; and

(4)    reported incidents of assaults and threats made against the applicant while he was in detention in 2018 (when he would have been 16 or 17 years of age) which left him feeling unsafe in the detention centre environment.

159    In this regard, as the applicant emphasised, the July 2021 letter to VACCU stated that “[t]hese submissions are intended to be read concurrently with all previous material provided to the Department” (A-STB at p. 599).

160    It follows that, contrary to the Minister’s submissions, the contention that refusal of the visa would likely lead to prolonged and indefinite detention with the consequence of Mr EPU suffering serious psychological harm in breach of Art 7 was put as a substantial and clearly articulated argument which required the Minister to confront it in clear and unambiguous terms. That is particularly so in light of the human consequences for Mr EPU (see at [140] above) and the fact that Art 7 establishes a norm, the violation of which warrants condemnation as unacceptable and unlawful conduct from the perspective of the international community including Australia as a party to the ICCPR. Yet the Minister failed to confront the submission and thereby failed consider it according to law.

161    In making this finding, first, I appreciate the importance of reading the Minister’s reasons fairly as a whole, having regard to the principles to which I refer at [180] below. However, beyond the bald and opaque statement at [144] that “I have had regard to [Mr EPU’s representative’s] submission that indefinite and prolonged detention of [Mr EPU] would foreseeably cause him psychological harm and will likely see Australia breach international obligations under Articles 7 and 9 of the ICCPR”, the Minister did not mention the Art 7 (or Art 9) submission further or reach a view on it.

162    Secondly, with respect to the psychological evidence (which formed the basis of the Art 7 submission), it is true that the Minister found in the preceding paragraph that “indefinite detention is likely to exacerbate [Mr EPU’s] mental health issues” although “currently his depression and PTSD are in partial remission” (at [143]; see also the finding at [122] accepting Dr Zimmerman’s evidence). However, merely to find in a summary way that indefinite detention will likely “exacerbate” the applicant’s mental health issues fails to confront or show any real reflection on the whole human consequences of the 2021 refusal decision and their potentially life-destroying impact on Mr EPU. The same may be said of the finding at [71] in the context of determining that limited weight may be placed on incidents recorded during Mr EPU’s time at the MITA, that “detention centres can be stressful places and … the length of [Mr EPU’s] detention has impacted upon his mental health”.

163    That said, the Minister’s primary consideration of the psychological evidence on the impact of immigration detention on Mr EPU occurs under the heading “Effects of prolonged detention” and this apparently forms the basis of the finding at [143]. Specifically, under that heading, the Minister stated that he had “considered” Dr Zimmerman’s reports (at [151]–[152]) and “noted” her concern that any further deterioration in his mental state may increase the risk of Mr EPU developing suicidal impulses or behaviour (at [152]), “acknowledge[d]” Ms Fitzgerald’s “comment” about the impacts on Mr EPU’s mental health resulting among other things in self-harm and threats of suicide (at [153]), said that he had “taken into consideration” statements about the lack of privacy which Mr EPU experienced in immigration detention before turning 18 years of age (at [155]), and had “considered” Mr EPU’s evidence about the difficulties he experienced in immigration detention which affected his mental health (at [157]).

164    However, the Minister’s conclusion following this extensive description of the expert medical opinions of grave and potentially life-threatening mental illness rose no higher than that he “accepted that [Mr EPU] has struggled emotionally and physically in the detention centre environment” (at [159]). That finding manifestly does not grapple with the substance of that evidence. Yet this is the point in his reasons where the psychological impacts for Mr EPU in the future if the visa were refused fell directly to be considered. This reinforces the view that the Minister has failed to properly engage with that evidence in the context of the Art 7 submission.