Federal Court of Australia

RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 962

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application is dismissed.

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

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant seeks judicial review of a decision of the respondent (Minister) made under s 501(1) of the Migration Act 1958 (Cth) to refuse to grant him a protection visa.

Background

2    The applicant arrived in Australia with his mother and two younger brothers in 2006 on a refugee (class XB) (subclass 200) visa (refugee visa) which entitled him to permanent residence in Australia. He was born in what is now the nation of South Sudan. The applicant has a history of criminal offending and convictions dating from March 2011 to April 2017. In 2011 the applicant was convicted of ten offences including robbery, assault with intent to rob and assault occasioning actual bodily harm. The applicant did not receive custodial sentences for any of these convictions. In 2012 the applicant was convicted of five offences including robbery, assault with intent to rob, escaping policy custody and, most significantly, aggravated robbery on 18 June 2012 for which he received a three-year sentence of imprisonment. In 2014 the applicant was convicted of nine offences including entering enclosed land without a lawful excuse, common assault and shoplifting. These convictions resulted in fines and relatively brief prison sentences of one to three months. In April 2017, whilst in immigration detention the applicant was convicted of taking part in a riot and was sentenced to 8 months’ imprisonment. The applicant’s refugee visa was cancelled on character grounds on 19 December 2014 under s 501(3A) of the Act.

3    In March 2018, the applicant applied for a protection visa. A delegate of the Minister refused the application on the basis that the applicant was “a danger to the Australian community” within the meaning of s 36(1C) of the Act.

4    The applicant sought merits review of the decision of the delegate in February 2020. The Administrative Appeals Tribunal set aside the decision of the delegate. The Tribunal found that the applicant did not represent “a danger to the Australian community” under s 36(1C) of Act and remitted the application to the Minister with a direction to that effect.

5    In May 2021, the Minister refused to grant the applicant a protection visa under s 501(1) of the Act because the Minister considered that, inter alia, there was an ongoing risk that the applicant wouldoffend and in doing so may cause harm to members of the Australian community.

6    In June 2021, the applicant filed the application before this Court for judicial review of the Minister’s decision under s 476A of the Act. In support of the application the applicant relied on three grounds of review.

7    First, the applicant contended that it was not open to the Minister to find that the applicant was a risk to the Australian community in circumstances where the Tribunal had previously found that the applicant was not “a danger to the Australian community” within the meaning of s 36(1C) of the Act. Second, the applicant contended the decision of the Minister was based on unreasonable or illogical findings. Third, the applicant contended that the Minister failed to give proper, genuine and realistic consideration to matters raised in support of the application.

8    For the reasons that follow I have determined that the applicant fails in each of his grounds of review. Accordingly, this application must be dismissed.

Ground 1 – The Relationship between s 36(1C) and s 501 of the Act

9    By his first ground the applicant contended that it was not legally open to the Minister to conclude that he was a risk to the Australian community in circumstances where the Tribunal had previously determined that the applicant was not a “danger to the Australian community” under s 36(1C) of the Act.

10    This ground was initially propounded on the basis that, because the Tribunal had made a finding under s 36(1C) that the applicant was not a danger to the Australian community, the Minister was bound to come to the conclusion that the applicant was not a risk to the community when undertaking the statutory task under s 501(1) of Act. Following the hearing before me, the Full Court of the Federal Court handed down its judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179 (Perram, Thawley and Stewart JJ).

11    The facts of EBD20 bear some resemblance to those relevantly here in play and the relevant legislative provisions are the same. In EBD20, the conclusion had been reached by the Tribunal under s 36(1C) that the applicant for a protection visa was not “a danger to the Australian community”. In arriving at that conclusion the Tribunal in EBD20 considered the risks of the visa applicant reoffending. In the exercise of the Minister’s discretion under s 501(1), the Minister in EBD20 also considered the risk of the visa applicant reoffending. The Minister’s decision was challenged on three grounds, the second of which is most relevant here, that the Minister’s decision was legally unreasonable because the reasons for the decision did not disclose an intelligible justification for rejecting the reasoning of the Tribunal and was thus inconsistent with the Tribunal’s decision and reasons. The Full Court rejected that challenge concluding that the Minister’s decision was not relevantly inconsistent with the Tribunal’s decision and not legally unreasonable for that or any other demonstrated reason (at [61]). That was so because the Tribunal and the Minister were answering different inquiries (at [47], [55] and [57]). It was not irrational or inconsistent to decide under s 36(1C)(b) that there are not reasonable grounds for concluding that a person is “a danger to the Australian community”, but nevertheless to reach the conclusion that the person presents a sufficient level of risk to warrant exercising the discretion under s 501(1) not to grant a visa (at [52] and [55]). The Full Court reached that conclusion despite recognising that the different inquires contained a common element, namely an assessment of the level of risk which the visa applicant posed (at [55]).

12    In a written submission addressing EBD20, the applicant accepted that the first ground in its amended originating application could not succeed in light of the Full Court’s decision in EBD20. Accordingly, it is not necessary for me to deal with it. However, it is necessary to address a further issue which arose during oral argument and which was raised in the further written submissions filed by the applicant. That issue is whether on common questions of fact, findings of fact made by the Tribunal under s 36(1C) in the course an application for a protection visa must, absent changed circumstances, be accepted by the Minister in a subsequent exercise of power under s 501 of Act when dealing with the same application. The applicant contended that, at the very least, the Minister was bound not to depart from the Tribunal’s factual findings without evident and intelligible justification. In summary, that was said to be so because, relying on the terms of s 65(1) of the Act, the applicant contended that s 36(1C) and s 501 are linked and part of a single process in which, absent changed circumstances or evident and intelligible justification, the scheme of the Act demands consistency in the factual findings made throughout that single decision-making process.

13    That question supplanted the question raised by the original ground 1 and has been the subject of further submissions provided by both parties. Insofar as leave to raise this point is required, I grant that leave.

14    I have proceeded on the basis that the applicant contends that by misunderstanding that the scheme of the Act demands the factual consistency for which the applicant contended, the Minister misunderstood or misconstrued what the exercise of the statutory power entailed and that there was a purported but not a real exercise of the power conferred by s 501(1): Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). However, legal unreasonableness seems also to be the basis upon which the applicant contends for a finding of jurisdictional error.

15    It is convenient to first outline the factual question which was common to both the Tribunal’s determination as to whether the criterion for eligibility for a visa in s 36(1C) was satisfied and the discretion not to grant the visa under s 501(1). The question or issue which was common to both exercises was the extent of the risk of the applicant reoffending. In dealing with that common question the Tribunal and the Minister made disparate factual findings on precisely the same material.

16    To further explain, in the context of the applicant’s prior offending having been influenced by alcohol as well as his association with anti-social individuals, the Tribunal considered the likelihood of the applicant reoffending and made two relevant factual findings as follows:

(i)    that the applicant “has realised during his five years in detention that he needs to avoid alcohol and drugs, not mix with anti-social individuals and that he now appreciates his family and the privileges that living in Australia offers” (at [46]); and

(ii)    that the applicant “has displayed, through his behaviour, his ability to avoid individuals with an anti-social influence, even in detention” (at [47]).

17    Those findings (as well as some others) supported a further finding made by the Tribunal (at [47]) that:

The Tribunal is satisfied that the Applicant is now empowered with a more mature skill set to deal with the very real challenges that he will be faced with. This is in light of the supportive network of family and associates that awaits the Applicant, the measured yet realistic plan he has for his own future and, as part of that, the positive benefit of his maturation, as specifically highlighted by Dr Zimmerman. In all the circumstances of this matter, the Tribunal is satisfied that the Applicant is not a danger to the Australian community.

18    In arriving at those findings the Tribunal relied on evidence of the applicant as well as that given by Dr Zimmerman. The Tribunal arrived at those findings appreciative, as it said at [42], “that the Applicant has had a limited number of months out in the community over the last decade or so and that he did reoffend while on parole”.

19    The Minister in his reasons for decision at [64] - [67] addressed many of the same factual issues referred to above:

[64]    I acknowledge that [the applicant] has made efforts towards rehabilitation and that he has expressed remorse for his behaviour. Whilst acknowledging [the applicant]’s rehabilitations efforts, I am nonetheless concerned that his ongoing rehabilitation is reliant on his abstinence from alcohol and avoiding associating with negative influences. I note that [the applicant]’s offending has occurred in the context of alcohol abuse. According to Dr Zimmerman, there is a possibility that [the applicant] could return to alcohol use should he find himself subjected to stressful situations in the future. Moreover, whilst Dr Zimmerman points out that [the applicant] has had no contact with the people that he previously associated with, I note that [the applicant] has either been detained or imprisoned since February 2014 and therefore his ability to remain distant from his previous friends, or to avoid negative influences in general, remains untested in the community Attachment O.

[65]    I have taken into consideration that [the applicant] has applied for a Protection (Class XA) visa for the purpose of residing permanently in Australia. I have considered the risk of harm to the Australian community in the context of the permanent stay period and specific purposes of the visa application.

[66]     I find that [the applicant] has not yet had the opportunity to test his ability to remain alcohol free in the community for any length of time and to refrain from associating with previous friends that may make him vulnerable to the negative influence of such associates, which he states was a major influence in his past offending.

[67]    Having regard to all of the information before me, I find that there remains an ongoing risk that [the applicant] will reoffend. Should [the applicant] engage in further offending of a violent nature, it could cause significant physical harm and/or psychological injury to members of the Australian community.

20    It is clear from those passages that, contrary to the factual finding made by the Tribunal, the Minister did not accept that the applicant had an understanding that he needs to avoid alcohol and drugs and avoid associating with anti-social individuals or that he had an improved ability to do so.

21    Those findings were made in circumstances where the Minister’s reasons (at [59]) state that the Minister considered the decision of the Tribunal and stated (at [60]):

The AAT took into account a number of factors to support its finding that [the applicant] did not constitute a danger to the Australian community, to which I have given due consideration. The AAT states that [the applicant] had changed his behaviour and had come to the realisation of the importance of family, particularly in relation to his son, and that he needed to make a positive contribution to the Australian community. The AAT also found that [the applicant]’s conduct since 2015 had been exemplary and that his evidence to the Tribunal had been ‘compelling’. The AAT further notes that [the applicant] was not prevented from his continuing rehabilitation despite his period of detention and that he had abstained from alcohol and drug use. Moreover, [the applicant] had positive support from his family, community members and his mentor, Ms Susan Meyer that would aid his ongoing rehabilitation if he should be released into the community. Despite the findings of the AAT, I am nonetheless cognisant that [the applicant]’s conduct remains untested in the community Attachment P.

22    A fair reading of the Minister’s reasons suggests that a significant reason or perhaps the reason for the difference between the factual findings made by the Tribunal and the Minister as to whether the applicant held an understanding that he needs to avoid drugs and alcohol and avoid associating with anti-social individuals as well as to whether he had the ability to do so, was the far greater reliance given by the Minister to the circumstance that the applicant’s good conduct since 2015 had not occurred in the community and that therefore his “conduct remains untested”.

23    I return then to the constructional issue and the submission of the applicant that s 36(1C) and s 501 form part of a single process in which, absent changed circumstances or intelligible justification, factual findings made in that process must be consistent. To consider that submission it is appropriate to commence by locating s 36(1C) and s 501 within the scheme of the Act.

24    The stated object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: s 4(1). To advance its object, the Act provides for visas permitting non-citizens to enter or remain in Australia on the basis that “the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain”: s 4(2). A “visa” is a grant of permission to a non-citizen to either travel to and enter Australia, to remain in Australia or to do both: s 29(1). A visa to remain in Australia may be a permanent visa or it may be a temporary visa: s 30. The Act provides for different classes of visas.

25    Subject to the Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class: s 45(1). The requirements for a valid application are set out in s 46 and include that it be an application for a visa of a class specified in the application: s 46(1)(a).

26    It is then necessary to consider s 47. As Crennan, Bell, Gageler and Keane JJ stated in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at [32]:

Section 47 of the Act imposes on the Minister a duty to consider a valid application for a visa (s 47(1)), and a corresponding duty not to consider an application for a visa that is not a valid application (s 47(3)). The duty to consider a valid application continues, subject to exceptions, until the Minister grants or refuses to grant the visa (s 47(2)(b)) in the performance of a complementary duty imposed by s 65.

27    The “complementary duty” imposed by s 65(1) is a duty to consider a valid application for a visa and if satisfied as to the various criteria and other matters there specified, to grant the visa or, alternatively if not satisfied, to refuse to grant the visa.

28    Section 65(1) provides a framework which identifies each of the criteria or other matters the Minister is required to consider and be satisfied of in either granting or refusing an application for a visa. Section 65(1) relevantly provides:

Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, 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.

29    There are four components to s 65(1)(a). The first and second require satisfaction as to whether certain criteria have been met, the third that the grant of the visa is not prevented by the operation of various provisions of the Act or any other law of the Commonwealth and a fourth component requiring satisfaction that the applicable charge payable in relation to the visa application has been paid.

30    Section 36(1C) is part of the second component to which s 65(1)(a) refers. It is part of the criteria prescribed by the Act for a class of visa known as a protection visa (see s 35A). The criteria for a protection visa is set out in s 36 and includes s 36(1C):

Protection visas – criteria provided for by this Act

(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.

31    In the third component of s 65(1)(a) reference is made to s 501 of the Act as a provision of the Act which the Minister must be satisfied the grant of the visa is not prevented by.

32    Section 501 relevantly provides:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

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

…

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

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

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

…

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

33    In relation to a single application for a visa, the operation of ss 36 and 501 may fairly be characterised as part of a single process in which the visa application is either granted or refused under s 65. As Crennan, Bell, Gageler and Keane JJ observed in Plaintiff S297, those observations having been endorsed in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [33] (Kiefel CJ, Gageler and Keane JJ), a visa application is either granted or refused under s 65. At [34] of Plaintiff S297 their Honours said this (emphasis added):

The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts – to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) – depending on the existence of one or other of two mutually exclusive states of affairs (or “jurisdictional facts” (31)) – the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters. The decision is not made, the duty is not performed, and the application is not determined, unless and until one or other of those legally operative acts occurs: that is to say, unless and until the Minister either grants the visa under s 65(1)(a) or refuses to grant the visa under s 65(1)(b). The Minister grants a visa by causing a record of it to be made (s 67).

34    In KDSP v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs [2021] HCA 24; (2021) 392 ALR 186 Edelman J said at [53] that “(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”. At [70] his Honour endorsed my own observation in KDSP v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs (2020) 279 FCR 1 at [115] that the power to refuse a visa under s 501A (a relevantly analogous power to that in s 501) “is a step in the performance of the duty imposed by s 65”.

35    The fact that a single ultimate decision is made under s 65 to either grant or to refuse a visa links the components of s 65 and supports those components being characterised as forming part of a single decision-making process.

36    The characterisation I consider to be appropriate is not merely a labelling exercise as the Minister’s submissions would suggest. It reflects the fact that there is a connection of significance between the different tasks which s 65 calls for. Each task whilst different and distinct from the next is nevertheless linked by the fact that each will contribute to an ultimate decision to grant a particular application for a visa and may contribute to a refusal of that application, recognising that it may not be necessary for all of the tasks listed by s 65(1) to be performed for an application to be refused.

37    It is ordinarily the case that in a single-decisional process in which an application for relief of some kind is to be either granted or refused, the determined facts upon which that decision is based remain constant. That is so in relation to judicial and quasi-judicial decision-making as well as administrative decisions made pursuant to statute which require the decision-maker to make findings of fact. Not only is factual consistency of that kind a matter of good decision-making, factual consistency is demanded because factual inconsistency is likely to spell error.

38    That appreciation of the ordinary case or the ordinary requirement is informative of what the scheme of the Act contemplates in relation to the single decision that the Minister is obliged to make under s 65(1). However, the extent of assistance which may be drawn from the ordinary case is limited by the fact that whilst the decisional process required by s 65 may be fairly characterised as a single process, it is by no means wholly reflective of an ordinary decision-making process.

39    The extent to which the s 65 process is different to that of the ordinary or common process has, I think, a bearing upon the extent of factual consistency which it might be inferred the scheme of the Act demands.

40    A wide range of intermediate decisions are called for by the process under which an ultimate decision to grant or refuse a visa is made under s 65(1). The wide range of those intermediate decisions and the different and disparate nature of them is not necessarily foreign to what may be considered to be the ordinary case. Nevertheless, the extent of the range and the disparate nature of the considerations required, does have a tendency to diminish the extent of factual consistency which it may be inferred is required by the s 65 decisional-process.

41    The ordinary case involves a single decision-maker exercising independent judgment pursuant to a single and consistent procedure. Whilst the s 65 decisional process could be performed by a single decision-maker, the process allows for and thus contemplates the participation of not only multiple decision-makers but multiple kinds of decision-makers. In some cases the decision will be made by the Minister personally (see, for example, s 501A(5)), in others by his or her delegate and yet in other cases by a member of a tribunal, relevantly, the Administrative Appeals Tribunal (see, for example, s 500). Further still, s 65 contemplates that the different intermediate decisions will be made by reference to different procedures. Some decisions will be first instance decisions, others may be decisions made upon a review. Some will be made consequent upon a hearing (see, for example, s 425), others on the papers. Some decisions require natural justice to be accorded to an applicant (see, for example, s 501A(2)), others not (see, for example, s 501A(3)) and still others require procedural fairness but only to a specified limited extent (see, for example, s 473DA).

42    Ordinarily, intermediate decisions in a single decision-making process are made at the same time. However, the s 65 decision-making process allows for a staged approach in which one intermediate decision may be made many months or possibly years from the next in circumstances where the relevant factual foundation for an application may have altered as between the various stages through which the application must travel.

43    All of those features tend against the idea that the scheme of the Act in relation to the functions required by s 65 insists upon absolute factual consistency being maintained across all of the functions required by that provision. Where a legitimate line is to be drawn is difficult to ascertain. It is I think correct to say, as the Minister’s submissions accepted, that a level of factual consistency is required. The Minister accepted that, absent a change of factual circumstances, the scheme of the Act does not contemplate multiple findings on whether a person satisfies a criterion for a visa. The Minister gave by way of example the Department’s previous findings in this case that the applicant was a person in respect of whom Australia owes non-refoulement obligations. A further example may be a finding that a person is a refugee within the meaning of s 5H of the Act.

44    The Minister, however, contended that at the lower level of fact finding on subsidiary issues, uniformity is not required by the scheme of the Act.

45    What the Minister meant by “lower level of fact finding on subsidiary issues” was not elaborated upon nor is it particularly clear. However, what underlines that contention is that not all factual findings made in the process of granting or refusing a visa must be consistent. Further, the importance of a fact to the intermediate decision made will bear upon whether or not the scheme of the Act requires factual uniformity with a prior intermediate decision.

46    Consistently with the submission made by the Minister, I accept that some level of factual consistency is required by the scheme of the Act across the different intermediate decisions required to be made in the process under which an ultimate decision to grant or refuse a visa is made under s 65(1). Factual consistency across decision-making within a single decisional process has intrinsic value. Factual inconsistency lacking evident or intelligible justification, will tend to bring the process into disrepute. Inconsistency on critical facts is more likely to undermine the decisional process than inconsistency on subsidiary facts. Inconsistency on subsidiary facts may be tolerated particularly where the multi-layered nature of the decisional process makes consistency difficult to achieve as a matter of practicality and efficiency. Bearing those matters in mind, the features of the Act earlier canvassed suggest to me that the factual consistency required by the scheme of the Act is driven by the importance of the fact in issue and likely to be confined to those facts which are critical to the intermediate decision in question. To draw the line there reflects, in my view, the proper balance to be struck between the scheme’s intent to provide finality and consistency to the administrative decision-making required by s 65 and the need for the scheme to provide for functional decision-making which recognises the practicalities required to effectuate a multi-layered decisional process.

47    Surprisingly, the issue raised by this ground of appeal does not appear to have been addressed by prior authority. The parties referred to a large number of authorities: Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; Plaintiff S297/2013; Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; KDSP v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs [2021] HCA 24; (2021) 392 ALR 186; WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another (2021) 285 FCR 463; EBD20; Minister for Home Affairs v Brown (2020) 275 FCR 188; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; KDSP v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs  (2020) 279 FCR 1; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another v BFW20 by his Litigation Representative BFW20A (2020) 279 FCR 475; Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160; Plaintiff S111 v Minister for Immigration and Border Protection (2018) 263 FCR 310; BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Ibrahim v Minister for Immigration and Multicultural Affairs [2000] FCA 1309; (2000) 63 ALD 37; WZATX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1262; BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312; EPU19 v Minister for Home Affairs [2020] FCA 541; SZLDG v Minister for Immigration and Citizenship (2008) 166 FCR 230; Segal v Waverly Council (2005) 64 NSWLR 177; Navarette v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1723; Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353; Nejad v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 153; Re WKCG and Minister for Immigration and Citizenship [2009] AATA 512; (2009) 110 ALD 434. None deal squarely with construing the scheme of the Act relating to s 65(1) and the extent of factual consistency required.

48    If I have correctly construed the scheme of the Act in relation to the decisional process required by s 65(1), the Minister will only have misconstrued his power under s 501(1) if the facts found by the Minister inconsistent with those found by the Tribunal are critical to the Minister’s decision to refuse the visa.

49    The relevant facts found by the Tribunal but which the Minister did not accept were that the applicant had an understanding that he needs to avoid alcohol and drugs and avoid associating with anti-social individuals and that he had an improved ability to do so (outlined at [16] above). Those facts are relevant to the finding made by the Minister at [67] of the Minister’s reasons that “there remains an ongoing risk that [the applicant] will reoffend”. That finding was then supplemented by other relevant findings at [121] where the Minister said:

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

50    That a risk of significant harm to the Australian community was critical to the decision made by the Minister to refuse the visa cannot be doubted in light of the Minister’s statement at [124] that:

In reaching my decision, I concluded that the above considerations favouring non-refusal are outweighed by the risk of harm posed to the Australian community and the expectations of the Australian community in this case.

51    However, in my view, the factual findings as to the applicant’s understanding of the need to avoid alcohol and drugs and avoid associating with anti-social individuals and his ability to do that, were not critical to the finding made by the Minister that there remains an ongoing risk of harm. The nature of the risk contemplated by that finding is important to the analysis. As [121] of the Minister’s reasons makes clear, the risk in question as the Minister saw it was based upon the “possibility” rather than the probability or likelihood of the applicant reoffending. Even if the risk contemplated by the finding is construed as based upon a real possibility rather than a mere possibility, that which the Minister “could not rule out” is almost impossible to rule out in relation any person let alone to a person with a history of offending such as that of the applicant. The reasonableness of the Minister’s requirement that the possibility of the applicant reoffending need be ruled out, is not here challenged. In the context of the Minister imposing that very high (if not impossible) hurdle, the fact that the Minister was not prepared to find that the applicant had an understanding that he needs to avoid alcohol and drugs and to avoid associating with anti-social individuals, or that he had an improved ability to do so, was not critical to the Minister finding that he could not rule out the possibility of the applicant further offending and thus posing an ongoing risk of harm to the Australian community.

52    Whilst I hold concerns about the fairness of the outcome, it is not the task of this Court to review the merits of the Minister’s decision. For the reasons given above, the Minister did not misconstrue the scheme of the Act in relation to the fact-finding task required of him. Nor, turning to legal unreasonableness, is jurisdictional error made out. If the scheme of the Act does not require factual consistency in relation to non-critical facts, whilst the inconsistency between the facts found by the Tribunal and the contrary facts found by the Minister may raise unfairness, they do not spell irrationality of the kind required to found a conclusion of legal unreasonableness: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [64]-[76] (Hayne, Kiefel and Bell JJ); BHL19 at [327]-[330] (Bromwich J) and [129]-[146] (Wigney J); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [8]-[13] (Allsop CJ)).

Ground 2 – Unreasonableness or illogicality

53    By the second ground the applicant also contended that the Minister’s decision was based on unreasonable or illogical findings.

54    The claim of unreasonableness or illogicality was made in relation to three aspects of the Minister’s reasoning. First, the applicant submitted that it was illogical for the Minister to find that the applicant was a risk to the Australian community in light of the Tribunal’s previous finding that the applicant was not a danger to the Australian community in accordance with s 36(1C) of the Act. Second, the applicant submitted that the Ministers findings on risk were not based on evidence or were illogical in light of the material before the Minister. The second claim was not pressed and I need not deal with it. Third, the applicant submitted that the Minister’s consideration of the expectations of the Australian community were illogical because they were made without evidence or probative material.

55    That the Minister’s finding on risk was illogical in the light of the Tribunal’s finding that the applicant was not “a danger to the Australian community” is also a challenge which must fail. The reasoning of the Full Court in EBD20 disposes of this aspect of the second ground of appeal. The Full Court observed at [52] that:

As a matter of principle, it is not irrational or inconsistent to decide under s 36(1C)(b) that there are not reasonable grounds for concluding that a person is “a danger to the Australian community”, but nevertheless to reach the conclusion that the person presents a sufficient level of risk to warrant exercising the discretion under s 501(1) not to grant a visa.

56    In the present matter, the Tribunal determined that on balance it was satisfied that the applicant was not a danger to the Australian community. While the Tribunal’s assessment of the applicant’s prospects of rehabilitation was overwhelmingly positive, it did not find that the applicant posed no risk to the community at all. Assuming that the Tribunal’s assessment provides a relevant starting point for the rationality inquiry, there was nothing irrational in the Minister determining that the applicant did pose some risk of harm and that that risk justified the exercise of the discretion under s 501(1).

57    The applicant also contended that the Minister’s reasoning was illogical because it lacked an evidentiary or probative basis for rejecting the applicant’s submissions about the expectations of the Australian community.

58    The Minister made the decision under s 501(1) of the Act personally and was therefore not obliged to apply Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA in accordance with s 499 of the Act. That is of some significance in this case. The concept of “community expectations” in Direction 90 is not concerned with the actual expectations of the community but with what the Executive deems to be the expectations of the community. Accordingly, in each case the decision-maker is obliged to adopt of the Executive’s view of the expectations of the community in accordance with the terms of Direction 90: see FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66]-[67] (Charlesworth J).

59    As noted above, s 499 of the Act does not apply to the Minister acting personally. It was therefore open to the Minister to determine that the expectations of the community were, as a matter of fact, other than the Executive’s statement of policy. Although the Minister could have done so, the terms of the decision impliedly demonstrate that the Minister adopted the view of community expectations as espoused in Direction 90. Although the Minister did not explicitly refer to the Direction, his explanation of community expectations substantially conforms to the terms of Direction 90.

60    In support of the visa application, the applicant provided the Minister with a petition signed by 84 persons as evidence of the community’s expectations. The Minister observed that the applicant’s submission “may be indicative of the views of some members of the community” (emphasis added) before setting out the deemed expectations of the community as they appear in Direction 90. The applicant contended that, by engaging with the evidence of the applicant, it was incumbent upon the Minister to provide some evidentiary or probative basis for rejecting the applicant’s submission that the petition was evidence of the community’s expectation.

61    The submission of the applicant cannot be accepted. It is abundantly clear that the Minister was dealing with the concept of community expectations as a matter of government policy rather than making a factual finding as to the state of community expectations. The acknowledgement of the petition does not lead to a conclusion that the Minister was dealing with the issue of community expectations as an evidentiary issue. Furthermore, the logical basis for the rejection of the submission was explicable in the Minister’s reasons. The Minister considered that the applicant’s submission, including the petition, “may be indicative of the views of some members of the community” (emphasis added). The use of the word “some” discloses that the Minister considered that, at its highest, the applicant’s submission could only be indicative of the views of part of the community, the underlying implication being that a petition signed by 84 people could not be said to represent the expectations of the community as a whole. Having dealt with the submission of the applicant, including the petition, the Minister adopted the government’s policy espoused in Direction 90. There was no illogicality in that course. Accordingly, the applicant’s claim that the Minister’s decision was illogical on this basis, must fail.

Ground 3 – Failure to consider

62    By his third ground the applicant submitted that the Minister failed to give proper, genuine and realistic consideration to (i) the evidence in respect of the risk of reoffending, (ii) the situation that would confront the applicant if the visa application were refused, (iii) the impact of further detention on the applicant in the circumstances of his case and (iv) the consequences of refusal on Australia’s international reputation.

63    As the majority of the High Court recently stated in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [26] labels like “proper, genuine and realistic consideration” as well as “active intellectual process” must be understood in their proper context. Their Honours continued:

These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

64    Although expressly dealing with the requisite consideration that must be given to representations made by a visa applicant rather than the manner in which evidence must be considered, at [24] and [25] their Honours said this (emphasis added):

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

65    As the Full Court (Bromberg, Jackson and Feutrill JJ) observed in KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 at [46], the passages just quoted from Plaintiff M1 (as well as adjoining passages at [22] - [23] and [26] - [27]) are “informed by the well-established principles that concern jurisdictional error for failure to consider a matter, or to consider it adequately…”. Their Honours went on to make the following observations of relevance to the issue here being considered:

(i)    the applicant bears the onus of establishing on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner (at [47]);

(ii)    excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in the light of all of the circumstances of the case and in that context whether a decision-maker falls on the wrong side of the line will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons (at [48]);

(iii)    what is required is an assessment of the reality of consideration by the decision-maker where the court considers, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put (at [49]);

(iv)    each case necessarily turns on its own particular facts and circumstances as established by the evidence and the reasons of the decision-maker must be considered by reference to the facts of the case and construed in a practical and common sense manner (at [50]); and

(v)    the degree of consideration necessary is affected by the centrality to the issues of the matter with which it is said the decision-maker did not engage and the prominence that that matter assumed. In that respect it is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant (at [52]). It is not necessary to distinguish between whether the matter said not to have been considered was a claim or was merely evidence. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error (at [52] and [53]).

The risk of reoffending

66    The applicant contended that there was a substantial amount of material before the Minister in support of his claim that he did not pose a risk of reoffending if he were to be released into the community. Although some of the material was referred to by the Minister, the applicant nevertheless submitted that none of it was discussed or engaged with in a meaningful way.

67    The material relied upon by the applicant was set out in his written submissions. Those submissions noted and, it was not in contest, that the evidence relied upon was undisputed.

68    The evidence or material in question may be summarised as follows:

(i)    evidence to the effect that the applicant would, if released from immigration detention, live with his family who had moved from Sydney to Melbourne and not live in Sydney and therefore not associate with the anti-social crowd with whom he had associated with during his period of prior offending;

(ii)    in respect of the applicant having some chance to test his resolve to avoid using alcohol, the AAT had found that during his many years in immigration detention the applicant had consistently stayed off alcohol and drugs even though they were apparently available; and

(iii)    the applicant would, if released, return to living with his mother who had been absent during his teenage years when he began offending, the applicant’s cousin an academic and a Chief Executive Officer at Diversity Focus had committed to calling the applicant every two days after his initial release and then weekly to check on his progress, the applicant’s mentor who was a Refugee Centre Co-ordinator had undertaken to stay in contact with the applicant and to be in touch with an organised team of support workers and services and was prepared to organise services and support outside those structures, that the petition signed by 84 people showed that a wide support network was available to the applicant on his return to the community and that the applicant had committed to undertake counselling.

69    The applicant accepted that some of that material had been identified by the Minister in recounting the applicant’s case but contended that none of it was discussed or engaged with in any meaningful way in the reasons of the Minister. In particular, the applicant submitted that there was no discussion of that material, no explanation of why it did not outweigh any other risks or elements in the applicant’s history and no apparent appreciation that the community support available to the applicant might impact on the risk of reoffending that seemed to have weighed on the Minister’s mind.

70    The applicant further contended that the material displayed critical elements of a deliberate plan on the applicant’s part to ensure that aspects of his past behaviour that had led to harm would be altered or avoided in the future. The applicant’s case was not simply that he had abstained from poor conduct but that he had made positive, structural or behavioural changes for the future. In that context the applicant submitted that it was not possible to give realistic and genuine consideration to that case (and the material in question), without engaging with it and explaining why it did not alter the Minister’s conclusion, it being insufficient only to state that the material had been provided or considered.

71    In thirty-five paragraphs of his reasons, the Minister addressed the risk to the Australian community of the applicant reoffending should he be released. Most of those paragraphs deal with recounting the evidence provided by the applicant, the submissions made by the applicant and the findings made by the AAT all of which dealt with the positive steps taken by the applicant to rehabilitate and the prospect of a successful rehabilitation in the light of the applicant’s maturity, changed attitudes and the family and community support which will be available to him if he is released.

72    Most of the evidence said by the applicant not to have been considered by the Minister is somewhat recounted in those paragraphs of the reasons of the Minister. To the extent that some of the evidence relied upon was not specifically referred to, given the comprehensive nature of the discussion, the fact that the subject of all of the material in question was at least broadly referred to and there being no requirement for the Minister to refer to every piece of evidence, the impression I am left with is that, as a matter of substance, the Minister did read, identify and understand all of the material in question: Plaintiff M1/2021 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ).

73    Although I do regard the material in question as going to an issue – the risk of the applicant reoffending – which was of central importance to the Minister’s decision, I am not persuaded that the Minister did not “evaluate” that material.

74    It seems to me that on a fair reading of the Minister’s reasons, the Minister had regard to the material in question as well as other material which supported the conclusion that the applicant had likely rehabilitated. However, the Minister also had regard to and noted “with concern” that the applicant had an extensive history of repeat offending including offending which had occurred after serving terms of imprisonment for prior offending and after having been warned of the consequences of further offending (at [61] - [63]). Furthermore, the Minister (at [64]) considered that the ongoing rehabilitation of the applicant was reliant on his abstinence from alcohol and avoiding associating with negative influences. In that regard the Minister took into account the evidence of Dr Zimmerman that there is a possibility the applicant could return to alcohol use should he find himself subjected to stressful situations in the future. Further the Minister seems to have given substantial weight to the fact that the applicant’s ability to remain alcohol free and avoid negative influences was untested in the community (see [64] and [66]).

75    Further still, as earlier stated, the approach taken by the Minister required that he be persuaded by the applicant that the possibility of the applicant reoffending can be “rule[d] out” (at [121]). The significance of the high, if not impossible burden placed upon the applicant by that requirement cannot be understated. That is particularly so in circumstances where the applicant was essentially required to demonstrate that his resolve to reform had been tested in the community when that testing was rendered impossible because of the applicant’s continued detention.

76    The better inference available is not that the material in question was not evaluated and thus considered and engaged with by the Minister, but that its significance was simply overwhelmed by the importance which the Minister attached to the applicant’s prior offending in the context of the high if not impossible burden cast upon the applicant by the Minister to demonstrate that any possibility of him reoffending could be ruled out.

77    Many, including the applicant’s numerous supporters in the Australian community, I would expect, would think that the Minister’s approach, particularly the high if not impossible burden the Minister imposed on the applicant, is manifestly unfair and particularly so in the context of evidence about the extent of the applicant’s rehabilitation which the AAT had found compelling. I would not disagree. However, my capacity to set aside the Minister’s decision depends upon the applicant demonstrating jurisdictional error. As harsh as it may seem to the ordinary observer, that the applicant has demonstrated manifest unfairness does not suffice to exclude the conclusion that jurisdiction error has not been demonstrated in relation to this ground.

The consequences for the applicant if the visa application were refused

78    The applicant contended that the Minister had failed to grapple with the real world consequences of the applicant being refused a visa, namely, that he would be in administrative detention until his removal to South Sudan. At the time of the decision, s 197C(1) of the Act provided that non-refoulement obligations were irrelevant to the exercise of the power to remove a person under s 198 of the Act. In his reasons for decision the Minister accepted that the Act required the removal of the applicant from Australia as soon as reasonably practicable, but acknowledged that the applicant would be subject to administrative detention until that time, “which may be protracted” (at [104]). The Minister proceeded to observe that removal would not occur if the applicant was granted another visa and that there were other options available to the Minister in respect of granting a visa or community detention.

79    The applicant advanced two reasons in support of the claim that the Minister had failed to deal with the real world consequences of refusal. First, the applicant said that the Minister failed to appreciate that s 197C of the Act required at that time that the applicant be returned regardless of Australia’s non-refoulement obligations. This was said to arise from the Minister’s observation that detention “may be protracted”, which was apparently a reference to the government’s policy of not returning a person to their country of origin where doing so would be in breach of Australia’s non-refoulement obligations at international law (despite the apparently mandatory language of s 197C). Second, referring to WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another (2021) 285 FCR 463 at [124] (Kenny and Mortimer JJ), the applicant observed that it was difficult to understand how the Minister could reasonably consider that the applicant might be granted another visa following a decision to refuse the applicant a visa on the basis that he posed a risk to the Australian community.

80    For present purposes it may be accepted that the applicant was unlikely to be granted another visa. I am not persuaded, however, that the Minister’s reference to detention being protracted disclosed a misunderstanding of the import of s 197C. In my view, the Minister was simply referring to the fact that removal under s 198 of the Act would not occur until reasonably practicable. The practicalities of effecting removal may mean that that could be a long time. The Minister may have contemplated that there was a need to consider any other applications the applicant might make, but nothing in my opinion flows from that fact. It is clear that the Minister was cognisant of the fact that the applicant would face detention until he was removed, and elsewhere in his reasons the Minister addressed the harsh realities and the real risk of serious harm or death to the applicant if he were returned to South Sudan. In these circumstances it cannot be said that the Minister failed to consider the consequences upon the applicant if the visa were refused.

The consequences of detention on the applicant

81    The applicant submitted that the Minister had failed to consider the impact of prolonged detention on the applicant as an individual. In support of this the applicant adverted to several matters in relation to the consequences of prolonged detention in his submission which it was said the Minister did not refer to in his reasons. The applicant said that these matters engaged the observations of Allsop CJ in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3] that in circumstances “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”. Further, it may be accepted that prolonged detention would have devastating consequences on the applicant.

82    Nevertheless, the Minister was not obliged to make findings of fact on any and every matter advanced by the applicant in the materials. Although the matters referred to above may not have been individually addressed in the reasons for the decision, the Minister considered the submissions made by the applicant in relation to the consequence of ongoing detention on him personally in some detail and accepted that a lengthy period of detention would likely have a significant impact on the applicant’s mental health. The Minister explained that he was cognisant of these matters and would take them into account when coming to his final decision. In my view, the Minister did not eschew the hardship faced by the applicant in administrative detention when reaching his decision. The Minister faced the realities of not granting the applicant a visa and took those matters into account in coming to a decision.

83    The applicant also complained that the Minister’s consideration of the applicant’s submission was directed only to the past. That is, it was said not to confront the future consequences of further detention on the applicant. Although the Minister’s reasons may not have been free of ambiguity, in my view, any consideration of ongoing detention not directed to the future would have been otiose. That is to say, there was simply no reason for the Minister to consider the consequences of detention on the applicant other than in relation to the future detention arising from his decision not to grant the applicant a visa.

84    For the above reasons, the applicant cannot succeed in relation to the consequences of further detention.

The consequences of refusal on Australia’s international reputation

85    Although the Minister noted the applicant’s submission and accepted that removal to South Sudan would be in breach of Australia’s non-refoulement obligations at international law, the applicant nevertheless contended that the Minister had failed to engage with the issue or explain how it weighed in the balance of his decision.

86    It was uncontroversial that non-compliance with obligations at international law such as non-refoulement “does not only impact on the person who might be returned to their home country. It impacts upon Australia’s reputation and standing in the global community”: Ali v Minister for Home Affairs (2020) 278 FCR 627 at [91] (Collier, Reeves and Derrington JJ); cf Plaintiff M1/2021 at [34] (Kiefel CJ, Keane, Gordon and Steward JJ). It may also be accepted that the applicant made submissions with reference to Ali that the Minister was obliged to consider under the Act.

87    The Minister explicitly referred to these matters in the reasons for the decision and provided a summary of the submission made by the applicant. The Minister then considered the applicant’s protection claim in some detail before concluding that the applicant would face a real risk of serious harm should he be returned to South Sudan. In the following paragraph the Minister stated that “the above considerations” weighed in favour of the applicant being granted the visa.

88    There was a dispute about whether “the above considerations” encompassed the risk to Australia’s international relations or only referred to the conclusion that the applicant would face a real risk of serious harm. In my view, the Minister was referring to the preceding section as a whole and was therefore forming a view by reference to the finding in respect of Australia’s international standing. Although the Minister may not have done more than accepted that the submission weighed in the applicant’s favour, the need for a specific finding turns on the nature of the representation made. The Full Court in AXT19 v Minister for Home Affairs [2020] FCAFC 32 observed at [47] that:

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 Tribunal 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 Tribunal to consider the claim.

Those observations are also apposite to the present claim under s 501(1) of the Act. The submission on the consequences on Australia’s reputation was not advanced in a way that demonstrated it was a critical aspect of the claim. Even accepting that the Minister was obliged to consider the submission, it was not a matter which required the Minister to give lengthy reasons or make specific findings of fact. By summarising the submission made by the applicant and concluding that it, among other findings, weighed in favour of the applicant the Minister sufficiently demonstrated that he had considered the issue raised as to the consequences of refusal upon Australia’s international reputation. For that reason, the applicant cannot succeed on this aspect of his claim.

Disposition

89    As the applicant has failed on each aspect of the challenge made to the Minister’s decision, the application must be dismissed with costs.

Associate:

Dated:    19 August 2022