Federal Court of Australia

LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    A writ of certiorari issue, directed to the respondent, quashing the decision made on 1 June 2021 to set aside a decision of the Administrative Appeals Tribunal made on 27 July 2020 and cancel the applicant’s visa purportedly under s 501BA of the Migration Act 1958 (Cth).

3.    The respondent is restrained, whether personally or by his officers, services, agents, delegates or howsoever otherwise, from acting on that basis that the decision made by the respondent on 1 June 2021 was a valid decision under s 501BA of the Migration Act 1958 (Cth).

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    The applicant was born in Burundi at a time of extreme violence between ethnic groups. As a young boy, he witnessed the murder of his father, sisters, grandparents and other members of his village. He spent most of his remaining childhood in a refugee camp in Tanzania. He attended only one year of school.

2    At the age of 17, the applicant arrived in Australia as the holder of a Class XB Subclass 200 Refugee visa issued under the Migration Act 1958 (Cth). He is now in his thirties.

3    From 2008, the applicant committed a series of criminal offences. In 2014 he was convicted of particularly serious offences involving violence and sentenced to cumulative terms of imprisonment. As a consequence, the applicant has a “substantial criminal record” and cannot pass the “character test” as defined in the Act.

4    On 18 April 2018, a delegate of the respondent (Minister) cancelled the applicant’s visa on character grounds in the mandatory exercise of a power conferred under s 501(3A) of the Act (the original cancellation decision). The applicant was taken into immigration detention in 2019, immediately upon his release from prison on parole.

5    After receiving representations from the applicant, a different delegate of the Minister (second delegate) refused to revoke the original cancellation decision under s 501CA(4) of the Act (the April 2020 decision). On 27 July 2020, the Administrative Appeals Tribunal set aside the April 2020 decision and revoked the original cancellation decision, thus reinstating the applicant’s visa.

6    The Minister made an application to this Court for judicial review of the Tribunal’s decision. That application was dismissed by White J on 12 February 2021:  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92.

7    Section 501BA of the Act provides:

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

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

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

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

Decision not reviewable under Part 5 or 7

(5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

8    On 1 June 2021, the Minister cancelled the applicant’s visa under s 501BA(2). A few days later, the applicant was again taken into immigration detention, having lived in the community since his earlier release on 27 July 2020.

9    This is an application for judicial review of the Minister’s personal decision to set aside the Tribunal’s decision and cancel the applicant’s visa.

10    I have concluded that the application should allowed.

The Minister’s decision

11    The Minister provided written reasons for his decision (Reasons).

12    A draft version of the Reasons had earlier been provided to the Minister in a brief prepared by an officer within the Department subject to his administration (the Departmental Officer). The Minister’s brief also included a number of documents marked “Attachment A” through to “Attachment Z”. The draft reasons were adopted by the Minister without alteration. The Reasons include references to the same attachments contained in the Minister’s brief. Save for three additions, the documents forming Attachment A to Attachment Z are the same as those before the second delegate when the April 2020 decision was made, including statements dating back to 2018. The additional material before the Minister comprised a criminal history report current to 4 November 2020, a copy of the reasons of the Tribunal and a copy of the Reasons for judgment of White J for dismissing the Minister’s earlier application for judicial review.

13    In his Reasons, the Minister correctly observed that the rules of natural justice do not apply to a decision under s 502BA(2). He acknowledged (again correctly) that he was not prohibited from affording the applicant an opportunity to be heard. He went on to state:

10.    In this case, I chose to proceed without giving [the applicant] an opportunity to be heard before making my decision. I am cognisant that as a consequence, [the applicant] has not had the opportunity to advance reasons why an adverse decision should not be made, including because of the impact such a decision would have on him and his family. In this instance [the applicant’s] family includes:  his two minor children and his elderly mother.

11.    I have, however, given consideration to representations made by [the applicant] in relation to the original decision and in the AAT proceedings which resulted in the AAT revoking the decision to cancel [the applicant’s] visa.

14    As will soon become apparent, the statement at [11] that the Minister had given consideration to the representations the applicant had made in the Tribunal proceedings is false.

15    The Minister then described the conduct constituting the applicant’s 2014 offences in some detail. He expressed agreement with the remarks of sentencing judges, each of whom viewed the offending conduct as very serious. The Minister also had regard to the applicant’s historical antecedents which included assaults (including against women), property damage and offences against the police. He expressed a conclusion that the applicant’s criminal history and his conduct was of such seriousness that it was in the national interest to cancel his visa.

16    The Minister then turned to consider the risk that the applicant posed to the Australian community, including the topic of his rehabilitation. He observed that the causal and mitigating factors for the applicant’s offending included his traumatic childhood, Post-Traumatic Stress Disorder and alcohol abuse. The Minister said that he had considered the applicant’s “previous efforts and opportunities for rehabilitation, understanding that such information may now be dated” (at [32]).

17    The Minister set out some details of the applicant’s traumatic personal history. He concluded that the applicant was nonetheless responsible for his criminal conduct, as reflected in the imposition of lengthy terms of imprisonment.

18    The Minister noted that the applicant had not reoffended since his release from prison in October 2019 and that he “has the benefit of parole supervision until 6 September 2021” (at [41]).

19    Under the heading “Rehabilitation” the Minister summarised the applicant’s submissions on the topic. The submissions were those made by the applicant and his legal representatives as directed to the second delegate prior to the April 2020 decision including a written statement made in 2018 relating to his attempts to engage in rehabilitation programs whilst in prison (where he then remained).

20    The Minister said (at [45]) that one of the submissions was to the effect that the applicant had been unable to participate in courses relating to alcohol abuse, violence and trauma whilst in prison because of his limited grasp of English.

21    Speaking in the present tense, the Minister said (at [46]):

[The applicant] states that despite not being able to engage in an alcohol course, he has reflected on the role that alcohol has played and its impacts on his whole family, which makes him ‘unable’ to abuse alcohol anymore. [The applicant] states that he has reflected on it and will ‘always’ stay away from alcohol. [The applicant] submits that he now understands that if you drink, you don’t have a good future. I accept that he understands the very adverse consequences of his alcohol abuse and genuinely wishes to avoid this in future. However he has been offending for many years and has had many chances to realise the effects of excessive drinking, including during previous imprisonment. He has not acted on these opportunities before. [The applicant] states that he drinks to try to get away from horrible mental images of seeing his father killed; there is no evidence that he has been able to overcome this problem by medical treatment and I therefore expect that he will have to continue to deal with it for the foreseeable future. I find that he remains at risk of using alcohol to try to cope.

22    The Minister referred to programs completed by the applicant whilst in prison (including a course titled “Living Without Violence”). He continued (at [49]):

[The applicant] also accessed assistance to improve in English writing skills in order to assist him in engaging with the community and obtaining work if his visa cancellation is revoked. However, I note his submissions that he is not yet literate in English and has been unable to participate in training because of his limited English.

(emphasis added)

23    The Minister referred to the remarks of a sentencing judge who considered (at the time of sentencing) that the applicant had reasonable prospects of rehabilitation if he undertook recommended psychiatric treatment. The Minister said that he agreed with that assessment of the applicant’s prospects “but whether he continues the treatment in the community has not yet been established and ‘reasonable’ prospects of rehabilitation leaves open a risk of reoffending” (at [50]).

24    The Minister again referenced and summarised the applicant’s statements made in 2018 and 2019 about his resolve not to drink again and his desire to resume his duties as a father and to find employment. He continued (at [53]):

I am concerned that [the applicant] has not undertaken any rehabilitative efforts in relation to alcohol. I find that the risk of him continuing to engage in alcohol abuse increases the likelihood of his reoffending. I am not convinced that after 15 years in Australia [the applicant’s] English skills will improve sufficiently to allow him to undertake the necessary rehabilitation. [The applicant’s] rehabilitation is yet to be tested in the community for any substantial period of time. I accept that the support of his family and the community will assist in his rehabilitation, but he has had such support available in the past and continued to offend. I find there is an ongoing risk that [the applicant] will re-offend. I consider that further offending of a violent nature by [the applicant] could result in physical harm to members of the Australian community.

(emphasis added)

25    The Minister later repeated his conclusions about the applicant’s rehabilitation efforts in relation to alcohol:

57.    I have considered the nature of the harm caused by [the applicant] from his offending. I have considered his conduct whilst incarcerated and detained. I have considered his reliance on alcohol and alcohol abuse to deal with his personal problems and his psychological state. I have considered his attempts at rehabilitation. I am concerned that the applicant has not undertaken any rehabilitative efforts in relation to alcohol. I find that the risk of him continuing to engage in alcohol abuse increases the likelihood of his reoffending. I am not convinced that after 15 years in Australia [the applicant’s] English skills will improve sufficiently to allow him to undertake adequate rehabilitation to not reoffend. I accept that the support of his family and the community will assist in his rehabilitation, but he has had such support available in the past and continued to offend. I find there is an ongoing risk that [the applicant] will re-offend. I consider that further offending of a violent nature by [the applicant] could result in physical harm to members of the Australian community.

58.    In sum, having regard to the above, including the nature and seriousness of his criminal history and the risk to the Australian community, were he to reoffend, I conclude that these matters are of such seriousness that it is in the national interest to cancel [the applicant’s] visa.

(emphasis added)

26    The Minister turned to other considerations, including the consequences for the applicant’s two minor children should the visa be cancelled. He again referred to statements made by the applicant in 2018 and 2019 as well as a prisoner report from 2019, concerning the difficulties the applicant experienced maintaining a relationship with his children whilst in prison and how important it was to them to rebuild their relationship. That portion of the Reasons consists almost entirely of the paraphrasing of submissions made to the second delegate prior to the April 2020 decision. Again speaking in the present tense, the Minister said:

70.    [The applicant] has been separated from his children since he was imprisoned in 2013. While at Mobilong Prison [the applicant] saw his children 1-2 times per year, as transport was difficult. He talked to them four times per week. When he moved to Port Augusta Prison in 2016 they were not able to visit.

71.    [The applicant] states that he has written letters to his children. He has a friend who sees his children often and gives him updates and passes messages to them. [The applicant] has submitted a letter written by his daughter stating that she misses her father and a letter from his son stating that they love him and miss him, and thanking him for his love and being there for them and stating they pray for him all the time and love him, in goal [sic] or out.

27    The Minister concluded by saying that he accepted that the applicant had been closely involved in the “early lives” of his children and that he remains important in their development as minors. He found that it was in the best interests of the applicant’s children that he continue to hold a visa “so that [the children] may have personal contact with their father in the future”.

28    The Minister went on to deal with other relevant considerations, in each instance referring to the Attachments in the brief. He referred to the reasons of the Tribunal with respect to the other relevant considerations.

29    In his concluding paragraphs, the Minister repeated his finding that the Australian community could be exposed to significant harm should the applicant reoffend in a similar fashion. He said that he could not rule out the possibility of further criminal conduct and concluded that the Australian community should not tolerate any further risk of harm. He then repeated the considerations favouring a decision not to cancel the visa, before concluding:

126.    I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct or other serious conduct by [the applicant], than I otherwise would, because he has lived in Australia for most of his adult life, arriving at the age of 17 years.

127.    I consider that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

128.    I find that the considerations favouring non-cancellation are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to set aside the decision of the AAT dated 27 July 2020, and cancel [the applicant’s] Class XB Subclass 200 Refugee visa under s501BA of the Act.

This Court’s task

30    This Court’s jurisdiction to review the Minister’s decision is the same as the jurisdiction of the High Court under s 75(v) of the Constitution:  Act, s 476A(1), s 476A(2). On such an application, the onus is on the applicant to demonstrate that the Minister’s decision is affected by jurisdiction error:  Act, s 474, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Craig v South Australia (1995) 184 CLR 163 at 179.

31    The distinction between jurisdictional and non-jurisdictional error is something of a shared boundary:  it defines not only the scope of the Minister’s authority but also the limits of this Court’s jurisdiction to engage in judicial review of his decision. As Kiefel CJ, Gageler and Keane JJ put it in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123:

22.    For so long as there remains a necessity for courts to fall back on constitutionally entrenched minimum jurisdictions to engage in judicial review of administrative action, however, the traditional distinction between jurisdictional and non-jurisdictional error cannot be avoided. The traditional distinction can be explained in more modern language. But an attempt to reframe the distinction in entirely new language is unlikely to be helpful.

23.    Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have ‘such force and effect as is given to it by the law pursuant to which it was made’.

24.    Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as ‘involving jurisdictional error’ is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a ‘nullity’, in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as ‘no decision at all’. To that extent, in traditional parlance, the decision is ‘invalid’ or ‘void’.

32    Their Honours went on to observe (at [29] – [30]) that a statute that impliedly requires observance of a condition in the course of decision-making is not ordinarily to be interpreted as denying legal force and effect to every decision made in breach of it. Ordinarily, the statute is to be interpreted as incorporating a threshold of materiality. That threshold will not ordinarily be met if compliance with the condition could not have resulted in the making of a different decision.

33    The four grounds of review are those set out in a further amended originating application filed on 29 November 2021. I prefer to approach them in the order set out below.

Ground 4

34    Ground 4 is as follows:

4.    The decision of the Minister was affected by jurisdictional error in that the Minister, in proceeding on the basis that he had given consideration to, the representations made by the applicant to the Tribunal, constructively failed to exercise jurisdiction because:

4.1.    the Minister acted unreasonably, irrationally and/or illogically because there was no basis on which he could reasonably find that he had considered representations which he did not consider and which were not before him;

4.2.    the Minister acted unreasonably, irrationally and/or illogically because he treated the fact that the Applicant had had the opportunity to make, and had made, representations to the Tribunal as a reason supporting his decision not to invite submissions or evidence from the Applicant, when the existence of that opportunity could only rationally support the Minister’s decision if the Minister were to consider the representations made to the Tribunal;

4.3.    the Minister proceeded on the basis of a fundamental misunderstanding of the nature of the material which he had considered and which the officer(s) who prepared the statement of reasons had considered in preparing the reasons for his adoption;

4.4.    the Minister having intended to consider the representations, failed to give them proper, genuine, and realistic (or any) consideration; and

4.5.    the Minister failed to have regard to the most up-to-date information available to him in circumstances where he intended to do so;

4.6.    the error(s) were material to the Minister’s exercise of power.

35    Particulars [4.1] to [4.5] set out five bases upon which it is said that the Minister made errors resulting in the constructive failure to exercise jurisdiction alleged in the opening words. Each of the particulars proceeds from the factual premise that the Minister did not in fact consider the submissions the applicant made in the proceedings before the Tribunal (the Tribunal information), notwithstanding the assertion at [11] of his Reasons (extracted at [13] above) that he had done so.

36    This is not a case in which the Minister’s representatives invite the Court to draw inferences from the written Reasons to the effect that the Minster had regard to material before him. Here, it is not disputed that the Tribunal information was not before the Minister. It is not disputed that the Minister had no regard to it, notwithstanding the statement at [11] of the Reasons. The statement at [11] is simply untrue.

37    By particular [4.1], it is alleged that the Minister acted unreasonably, irrationally and/or illogically because there was no basis upon which he could reasonably find that he had considered representations that were not before him and that he did not in fact consider. That argument should be accepted, although I admit to having some difficulty describing the Minister’s statement that he had considered the Tribunal information as being in the nature of a “finding” in the ordinary sense of the word. It is more aptly described as an assertion concerning the evidence the Minister had considered in making the substantive factual findings bearing on the exercise of the power:  it is a false statement concerning the manner in which the Minister approached his statutory task.

38    It may be accepted that it is illogical in the ordinary sense of the word for an administrative decision-maker to state that consideration has been given to evidentiary material in circumstances where no such consideration has been given. The question is whether that demonstrated illogicality constitutes jurisdictional error so as to vitiate the decision. To answer that question it is necessary to focus attention on the enactment conferring the power to decide.

39    For the purposes of s 501AB(2) of the Act, the determination of what is in the national interest involves a broad evaluative judgment:  Gbojueh v Minister for Immigration and Border Protection (2012) 202 FCR 417 (at [44]). The matters that the Minister may take into account are largely matters for the Minister to determine:  Gbojeuh (at [43]); Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326, French, O’Loughlin and Whitlam JJ (at [89]); Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, Kiefel and Bennett JJ (at [74]); Tewao v Minister for Immigration and Citizenship (2011) 125 ALD 57, Katzmann J (at [12] and [32]); Maurangi v Bowen (2012) 200 FCR 191, Lander J (at [70]); and see also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gumow J (at [61]); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 Gaudron J (at 418 – 419), Kirby J (at 502 – 503).

40    But that does not mean that the power is unconstrained. As the High Court emphasised in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Parliament is taken to intend that a power conferred by statute will be exercised reasonably:  French CJ (at [26] and [29]), Hayne, Kiefel and Bell JJ (at [63]) and Gageler J (at [88]); Kruger v Commonwealth (1997) 190 CLR 1 (at 36); Abebe v Commonwealth (1999) 197 CLR 510 (at [116]). More specifically, where, as here, the power is pre-conditioned by the formation of a state of satisfaction, there is an implied requirement that the requisite state of satisfaction be reasonably formed:  Bankstown Municipal Corporation v Fripp (1919) 26 CLR 385 (at 403); R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 (at 430); Buck v Bavone (1976) 135 CLR 110 (at 118 – 119); Boucaut Bay Co Ltd v Commonwealth (1927) 40 CLR 98, Starke J (at 101), approved by Windeyer J in Commissioner of Taxation (Cth) v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 (at 57); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at [130]).

41    The cases demonstrate that legal unreasonableness may affect a decision made in the exercise of a discretionary power or a power concerning matters of practice and procedure, so as to vitiate the ultimate outcome.

42    In SZMDS, Crennan and Bell JJ considered the application of the principles in the context of the substantive power to grant or refuse a visa application under s 65 of the Act. Their Honours said:

130    In the context of the Tribunal’s decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

131    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. 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.

43    The ascertainment of a standard of legal reasonableness “does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker”:  Li (at [66]). In all cases it is necessary to look to the scope and purpose of the statute conferring the power to find its limits:  Li (at [67]). As Allsop CJ said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (at [11]), the boundaries may be difficult to define:

…  The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation:  the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

44    To similar effect, Griffths J warned against a formulaic approach. His Honour said (at [62]):

…  A more sophisticated approach is required, one which focuses central attention on the question whether an administrative decision is one which is within the authority of the decision-maker to make. This necessarily requires that close attention be given to relevant features of the particular statutory framework within which that authority arises. That framework necessarily includes the subject matter, scope and purpose of the relevant statutory power. But the statute also frequently provides additional indicators which assist in determining whether a particular exercise of a statutory discretionary power is one which exceeds the authority of the decision-maker and is legally unreasonable.  …

45    The decision presently under review was said by the Minister to have been based in part on his consideration of a body of evidentiary material that he did not in fact consider. In determining what consequences follow for the legality of the exercise of the power, three features of s 501BA(2) assume some importance. The first is that the power must be exercised by the Minister personally. The second is that the rules of natural justice do not apply. The third is a temporal matter:  the Minister must identify what the national interest requires at the time that the power is exercised, not what it might have required at some earlier time.

46    In the absence of mandatory relevant considerations, it was otherwise for the Minister to identify for himself (within the bounds of legal reasonableness) the matters he considered to be relevant to the national interest. The Minister relevantly identified the applicant’s rehabilitative prospects and the interests of the applicant’s minor children as among the relevant factors. By necessary implication, the Minister was required to make findings about those matters in reaching the requisite state of satisfaction under s 501BA(2)(b). In that respect, there was a fact finding aspect of the power that was essential to its exercise, and that was itself to be undertaken within the bounds of legal reasonableness. Having identified the relevant considerations in the particular case, the task required that the Minister have regard to such evidentiary material that bore on those considerations and to identify the weight to be afforded to them.

47    In performing the fact finding aspect of his task it was of course permissible for the Minister to have regard to an accurate summary of the evidentiary materials he considered to be relevant and to disclose his reasoning process by adopting draft reasons prepared by another person without alteration (although here neither the Minister’s brief nor the draft reasons contained a summary of the Tribunal information).

48    The Minister was not obliged to invite the applicant to comment on the proposed cancellation of his visa or provide more up to date information. It nonetheless remained necessary for the Minister to make a finding about what the national interest required as at the date of the decision and not at some earlier time. The temporal requirement in s 501BA(2)(b) does not change depending on the extent to which the evidentiary material before the Minister in a given case is out of date. The more dated the material, the more problematic it may become in a given case to make factual findings about present day circumstances within the bounds of legal reasonableness. Much will depend on the inferences reasonably capable of being drawn about present day circumstances from the dated material.

49    The exclusion of the rules of natural justice did not preclude the Minster from affording the applicant an opportunity to be heard. The Reasons (at [11]) disclose that the Minister recognised that he had a discretion to invite the applicant to make further submissions and that he determined not to.

50    Considered in the proper statutory context, I consider the illogicality at [11] constitutes a breach of a condition affecting the exercise of the power, namely that the Minister conduct the fact finding task attending the exercise of the power in a manner that is logical and rational. It was nonsensical for the Minister to conclude that the Tribunal information bore on the matters he determined to be relevant, and to state that the material had been considered, when the true state of affairs was that the Tribunal information was not before him and had not been considered at all. I would arrive at that conclusion irrespective of whether the assertion was knowingly false.

51    The Minister’s statements (at [10] and [11] of the Reasons) concerning his choice not to afford the applicant natural justice reinforce my conclusion that the decision is affected by illogicality in the requisite sense. That is the subject of the complaint in particular [4.2].

52    The Reasons at [10] and [11] may be fairly understood as expressing a view that by considering the Tribunal information the Minister has in fact had regard to the most recent of the applicant’s statements that were then available to him. Implicitly, the Minister stated that he had regard to submissions made before the Tribunal resulting in the very decision the Minister was contemplating setting aside, such that the matters the applicant raised in disputing the merits of the April 2020 decision had been taken into account. The Minister then purported to take that false state of affairs into account in the exercise of his discretion not to afford the applicant an opportunity to be heard before cancelling his visa.

53    It should be emphasised again that the Minister was under no obligation to afford the applicant natural justice. However, in the present case, the Minister exercised a discretion against adopting that course based in part on what he said at [11] of the Reasons. The known circumstance that the Minister had not in fact considered the submissions the applicant had made before the Tribunal renders that part of his Reasons irrational.

54    By particular [4.3] it is alleged that the Minister proceeded on the basis of a fundamental misunderstanding of the nature of the material which he had considered and which the Departmental Officer had considered in preparing the draft reasons for his adoption.

55    In upholding the contentions supporting particular [4.1] I have concluded that the assertion at [11] of the Reasons is false. However, I do not consider there could have been any misunderstanding by the Minister that the Attachments to his brief were anything other than what they appeared to be on their face. They plainly predated the Tribunal proceedings. To the extent that they comprise representations made by the applicant, they are obviously directed to the second delegate in advance of (and for the purposes of) the April 2020 decision. On the assumption that the Minister looked at the Attachments in his brief, it is not at all probable that he mistook any of them for submissions the applicant had made to the Tribunal.

56    At the very least, I am satisfied that there was an erroneous assumption on the part of the Minister that his brief contained the Tribunal information although in all of the circumstances described in these reasons I consider it unlikely that the Minister formed that assumption by referring to the materials contained in the brief and forming any view about their content and nature. The contentions in particular [4.3] are upheld to that extent.

57    By particular [4.4] it is alleged that the Minister, having intended to consider the more recent representations, failed to give them proper, genuine and realistic (or any) consideration. Similarly, the contention in particular [4.5] is that the Minister failed to have regard to the most up to date information in circumstances where he intended to do so.

58    To the extent that the statement at [11] of the Reasons evidences a subjective intention on the Minister’s part, then I would readily accept the submission that the Minister failed to do what he intended. In that respect, the particulars in [4.4] and [4.5] are different ways of restating the argument in particular [4.1].

59    If I am wrong in interpreting the particulars in that way, I would otherwise have some difficulty describing the statement at [11] of the Reasons as a statement of intention. At the time of adopting the Reasons, no question of “intention” could have arisen. By adopting the draft reasons as his own, the Minister made a false statement about what he had in fact done. Whether the Minister previously formed a subjective intention to consider the Tribunal information is doubtful. As I have mentioned, the better view is that the Minister did not engage with the materials in his brief to a degree necessary to identify that the Tribunal information was not there.

60    No reasonable decision-maker could have discharged the fact finding tasks attending the power without calling for and considering the materials the decision-maker himself concluded should be considered.

61    For the same reasons given below in connection with that Ground, I am satisfied that the illogicality identified in Ground 4 materially affected the outcome and so constitutes jurisdictional error.

Ground 1

62    Ground 1 is that the Minister committed jurisdictional error because he “failed to consider probative material that was constructively before him” regarding the applicant’s rehabilitation efforts. The particulars are as follows:

1.1.    The Minister [found] that the Applicant had not been able to undertake rehabilitation courses due to the ‘language barrier’, and that he had not undertaken any rehabilitation efforts in relation to alcohol, and relied on these findings adversely to the Applicant in assessing the Applicant’s risk of reoffending:  Decision at [46], [53], [57].

1.2.    The Applicant participated in rehabilitation programs during his period in immigration detention between October 2019 and the Tribunal’s decision on 27 July 2020.

1.3.    In the Tribunal proceedings the applicant gave and advanced evidence and submissions to the effect that he had participated in rehabilitation programs including programs that specifically addressed alcohol use/abuse and the Minister did not dispute that evidence.

1.4.    The Minister was an active party to the proceedings and must be taken constructively to have knowledge of the information relied upon by the Applicant in the Tribunal.

1.5.    In failing to have regard to the substance of this material, and in making findings based upon submissions made to the delegate and without regard to the evidence and submissions made to the Tribunal, the Minister failed to give proper, genuine and realistic consideration to the Applicant’s rehabilitation and risk of reoffending, and this failure was material to the Minister’s exercise of power.

63    The particulars are concerned with the findings recorded at [53] and [57] of the Reasons concerning the risk posed by the applicant to the Australian community, particularly the Minister’s present tense statement that he was concerned that the applicant has not undertaken any rehabilitative efforts in relation to alcohol.

64    Counsel for the Minister submitted that those passages in the Reasons should not be understood to express a positive finding that the applicant had made no efforts at rehabilitation from alcohol abuse at the time of the Minister’s decision. It was submitted that the Reasons should be understood as meaning that the applicant had not attended a program specifically dedicated to addressing his dependence on alcohol. I do not accept those submissions.

65    The Reasons are not to be read with an eye keenly attuned to the perception of error:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Brennan CJ, Toohey, McHugh and Gummow JJ (at 271 – 272). However, the inference that the Minister made the positive finding that the applicant had made no rehabilitative efforts in relation to alcohol does not depend on a strained interpretation of the Reasons. The inference arises naturally from the language the Minister employed at [53] and [57]. Earlier in his Reasons the Minister acknowledged that the material before him may be dated. However, that does not alter my view that the Minister made a positive finding about the circumstances as they persisted at the date of his decision, namely that the applicant had in fact made no attempts at rehabilitation of the relevant kind. In its ordinary meaning, that found fact must be understood as one persisting at the date of the decision. The Minister may well have observed that the submissions were dated, but he nonetheless proceeded to treat them as if they were current.

66    In any event, by reason of the illogicality at [11] of the Reasons, the Minister’s statement about information being “dated” is itself uncertain in its meaning. What “dated” information is the Minister there referring to? If the Minister is referring to the Tribunal information (which may by that time be fairly described as dated), then the Minister has only served to compound the errors identified in Ground 4.

67    The contention that the Minister must be understood as referring to a failure on the part of the applicant to attend a course that was dedicated only to the topic of alcohol abuse is also contrary to the ordinary language of the Reasons. I do not consider that a mere reference to the fact of the applicant undertaking the “Living Without Violence” course provides a reason to interpret the Reasons any differently. The Reasons disclose no appreciation of the length, nature and content of the course. The better inference is that the Minister failed to have regard to material concerning the content and impact of the courses the applicant in fact attended.

68    It is relevant to consider that the Minister’s findings on this topic are expressed in almost identical terms to the reasons provided by the second delegate in relation the April 2020 decision. That is made most plain at [49] of the Reasons where the Minister summarises the applicant’s submissions (expressed in the present tense) as to what he would do “if his visa cancellation is revoked”. That is peculiar language for the Minister to use in circumstances where the visa cancellation decision had in fact been revoked by the Tribunal some 11 months prior and that the Minister was again contemplating cancelling the visa. That paragraph typifies the remainder of the Reasons in which the applicant’s submissions are referred to and summarised in the present tense as if they are submissions relating to circumstances as they persist to the date of the Minister’s decision.

69    All of that supports the earlier conclusion that the Reasons should be interpreted in the way contended for by the applicant:  the Minister made a positive finding that the applicant had been and remained unable to successfully participate in any reformative course concerning abuse of alcohol, including because in the Minister’s assessment the applicant’s limited English rendered it impossible. Those findings replicate the findings of the second delegate.

70    The difficulties presented by the applicant’s limited English were contained in his own prior statements dated 2018. However, the situation described in them concerning the inability to participate in courses had changed even at the time of the second delegate’s decision.

71    In a submission to the second delegate dated 8 May 2019 the applicant’s representative provided evidence that the applicant was then participating in the Living Without Violence course and was positively engaged with its content. The representative reported comments from the psychologist conducting the course to the effect that the applicant was mature, and cooperative and that he had attended every session. At that time, the 21-week course was due to be completed in July 2019. The psychologist listed the eight modules within the course, one of which was titled “Alcohol and substance abuse”. At the time of the representation in April 2019, the applicant had not completed that module. However, on 6 August 2019, the applicant’s representative provided the second delegate with evidence in the form of a certificate showing that the applicant had successfully completed the course. The module “substance abuse” is referred to on the face of the certificate.

72    The second delegate’s own reasoning in respect of that topic was the subject of representations and evidence before the Tribunal. At the Tribunal hearing, the applicant submitted more than 400 pages of additional material in support of his application for merits review, including material that directly addressed the adverse findings of the second delegate on the topic of his rehabilitative efforts in relation to alcohol. He submitted that the second delegate was wrong to conclude that he had made no rehabilitative attempts. His evidence and submissions included:

(1)    confirmation that he would obtain counselling upon release from immigration detention if the April 2020 decision was revoked;

(2)    confirmation that he had obtained information about counselling and mental health support provided by specific services in the community, including organisations that would provide interpreter services;

(3)    a statement that the Living Without Violence course he completed in prison was a long course that dealt with anger management and substance abuse including alcohol; and

(4)    the following statements:

25    In prison in South Australia I did complete various courses and have provided information about that. I competed a Living Without Violence Course during 2019 which was a long course. This dealt with anger management and substance use including alcohol.

26    The Department decision states that I did not complete an alcohol course in prison because my English was not good enough. This is not correct. My then lawyer in January 2019 wrote that I had not been able to do courses to date because of my English but in 2019 after her letter, I was assessed as able to do the course and I did it and have provided evidence. The Certificate for the Living Without Violence Course lists substance use as a component. I learnt what bad impact alcohol has – that it changes your mentality - that you think you are very strong and that you have every power. I also learnt that I must keep away from people who may influence me to drink and be a role model to other people showing that I have changed and no longer drink. We also learned how to manage stress – to find a close person to talk to or if there is no one around to speak with at the time, to do sport or physical activity to release the stress for example go to the gym or walking or running. For depression, or PTSD or loneliness we were advised to access professional counselling including by telephone as necessary. I have remembered all of this learning and will put it into practice. I also know about Alcoholics Anonymous as an option. I attended a group session like this as part of the Living Without Violence course.

73    The applicant gave more detail about the content of the course than that which had been provided to the second delegate and confirmed that he had been putting into practice what he had learned.

74    The submission that the Tribunal information contradicted the Minister’s finding that the applicant had not undertaken any rehabilitative efforts in relation to alcohol should be accepted.

75    For the applicant it was submitted that the Tribunal information was “constructively” before the Minister in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Gibbs CJ said (at 30 – 31):

Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.

In the present case the correspondence in the possession of the Department revealed the material fact that Ranger 68 was within the land recommended to be granted, contrary to the view on which the Commissioner had acted. The circumstance that the correspondence had been addressed to a predecessor in office of the Minister was quite irrelevant, since the letters were not personal, but were among the departmental papers. The material in the possession of the Department must clearly be treated as being in the possession of the Minister:  see Daganayasi v. Minister of Immigration. The summary prepared by the officers in the present case made no mention at all of the facts that the Commissioner was under a misapprehension, and that Ranger 68 was within the area recommended to be granted, and the conclusion of the Federal Court that the Minister did not consider these facts cannot be Challenged. The Federal Court therefore rightly concluded that the Minister’s power under s. 11(l) of the Act was not validly exercised.

(footnotes omitted)

76    Mason J put it this way (at 45):

… a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

77    In DHS17 v Assistant Minister for Immigration and Border Protection (2018) 267 FCR 411 the Full Court allowed an application for judicial review of a decision of the Assistant Minister to refuse to revoke a delegate’s decision to cancel a visa under s 501CA(4) of the Act. The Assistant Minister had before him a redacted copy of an International Treaties Obligations Assessment (ITOA). A complete copy of the ITOA was in the possession of the Department but not provided to the Assistant Minister. The Full Court held that the complete copy of the ITOA was constructively in the possession of the Assistant Minister and that his failure to consider it gave rise to error. The error was material to the outcome because the Assistant Minister would not inevitably have reached the same conclusion upon a reconsideration based on the complete ITOA.

78    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 284 FCR 540 the Full Court upheld the finding of a primary judge to the effect that the Minister had constructive knowledge of the content of a report that was in the actual possession of the Department but not provided to him. The failure to have regard to the report constituted jurisdictional error because it materially affected the Minister’s conclusion that the former visa holder posed a risk to the Australian community:  at [113] – [115].

79    Here, the Minister was a party to the Tribunal proceedings, and then a party to an application for judicial review in which he sought to have that decision quashed. That alone is sufficient to support a finding that the Tribunal information was constructively before the Minister in the sense discussed in the authorities, even if he did not have actual knowledge of its existence or content.

80    Whether the failure to consider the Tribunal information constituted jurisdictional error is not a question that can be answered by direct recourse to the above authorities. Each case must turn on its factual and legal context. In Peko-Wallsend, the failure to have regard to the missing material amounted to jurisdictional error because it bore on an issue characterised as a mandatory relevant consideration on the proper construction of the enactment conferring the power.

81    The Minister in the present case submits that the applicant’s rehabilitation efforts were not a mandatory relevant consideration in accordance with the principles stated in Peko-Wallsend. That submission may be correct, however, it does not wrestle with the present ground of review.

82    As I have mentioned, the Minister here determined that the risk that the applicant posed to the Australian community was a relevant consideration in determining what the national interest required. He also determined that it was relevant to consider what rehabilitative efforts the applicant had undertaken, particularly to address his use or abuse of alcohol. Whether or not those topics might otherwise be mandatory relevant considerations in the sense discussed in Peko-Wallsend is not to the point. Here, the issue is not whether a mandatory relevant consideration was or was not taken into account, but rather whether the legality of the decision depended upon the Minister taking into account the evidence in his constructive possession bearing on a question the Minister himself had concluded was relevant to the task under s 501BA(2)(b).

83    Counsel for the Minister further submitted that the arguments underpinning this ground of review are contrary to Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758, Bromberg J there saying of a similar power in s 501(3) of the Act (at [57]):

… the decisive issue here is whether there was any obligation upon the Minister to take into account the most up to date information available to him in the context of s 501(5) providing that the rules of natural justice do not apply. As the Minister contended, s 501(5) contemplates that the Minister may form the satisfaction required by s 501(3)(d) – that the cancellation of the visa is in the national interest – without ascertaining what, if anything, the affected person has to say about that topic. There is therefore no room to imply from ‘the subject matter, scope and purpose’ (Peko-Wallsend at 45) of the Act, that the Minister’s decision must be made on the basis of material provided by the affected person being taken into account at all, let alone that the most recent of material so provided must be taken into account.

84    Again, the submissions of the Minister do not assist the resolution of the controversy before me.

85    As I have previously mentioned, having determined that it was relevant to consider the risk the applicant posed to the Australian community, the task of the Minister was to evaluate that risk as it existed not at the time of the second delegate’s decision but at the time of his own decision. Unlike Chetcuti I am here concerned with a positive finding made by the Minister as to a present day state of affairs based on dated information in the Minister’s actual possession that was treated in the reasoning process as though it was up to date and that was contradicted by more up to date information in the Minister’s constructive possession.

86    On the particular facts of the present case, having identified the topic of the applicant’s rehabilitation efforts as relevant, it was not open to the Minister to have selective regard to the material before the second delegate but to ignore the very existence of more up to date material from the same source in his actual or constructive possession that bore upon the topic. I am reinforced in that view by the text of s 501BA(2) of the Act, expressed as it is in the present tense. Having regard to the text, context and purpose of s 501BA(2), subject to questions of materiality, s 501BA of the Act does not authorise the arbitrary course of fact finding just described. I reach that conclusion whether or not the subject matter determined by the Minister to be relevant on the facts of the case before him might otherwise be characterised as a mandatory relevant consideration in all cases, and notwithstanding that the rules of natural justice had no application.

87    To adopt the words of the present ground of review, such a course of decision-making may evidence a failure on the part of the Minister to give genuine consideration to the topic of the risk the applicant posed to the Australian community at the time of the Minister’s decision. Whilst that is an apt description of the error, it matters not what semantic label is ascribed to it.

88    There of course may be cases in which it is permissible for the Minister to prefer more dated material to more recent material. But that is not what occurred here. The Minister did not state in his Reasons that the Tribunal information should be disregarded or ascribed no weight, nor that it could be explained away or treated as unreliable. None of these things occurred because the very existence of the material was ignored when the impugned finding contained at [53] and [57] of the Reasons was made.

89    In resolving Ground 2 (below) I have concluded that the impugned finding at Reasons [53] and [57] had no proper evidentiary foundation in the material before the Minister, even without regard to the Tribunal information. But that does not mean that the error alleged in Grounds 1 and 4 is not material. The Tribunal information in the Minister’s constructive possession was different in quantity and quality than that in his actual possession. Of particular significance is the applicant’s submission as to what he had learned in the course, the insights he had gained and his assertion that he was then putting the course content into practice. I reject submissions advanced on behalf of the Minister that the Tribunal information took the issue of the applicant’s rehabilitation no further than the materials contained in the Minister’s brief.

90    In the particular facts and circumstances of the present case, the requirement that the Minister’s fact finding task be performed reasonably included a requirement that he have regard to the material that he determined should be considered and that he claimed he had in fact considered, namely the Tribunal information. Given the observations I have made about the content of the Tribunal information, I am satisfied that non-compliance with that condition materially affected the outcome. The errors established in Grounds 1 and 4 are therefore properly characterised as jurisdictional. Both grounds are upheld.

Ground 2

91    This ground alleges that the Minister’s decision was affected by jurisdictional error because when considering the risk that the applicant posed to the Australian community, he reasoned in a manner that was unreasonable, illogical and/or irrational in that:

2.1.    The Minister identified that the risk to the Australian community was a relevant consideration in determining whether cancelling the Applicant’s visa was in the national interest:  …

2.2.    The Minister found that the Applicant had not engaged in any ‘rehabilitative efforts’ in relation to Alcohol, despite the fact that there was evidence before the Minister that the Applicant had undertaken a rehabilitation program that included a focus on substance use, and that the Applicant had undertaken independent reflection:  …

2.4.    The Minister was ‘not convinced’ that after 15 years in Australia the Applicant’s English Skills improve sufficiently to allow him to undertake adequate rehabilitation to not reoffend, despite the obvious fact that, interpreters and/or mental health professionals who speak the Applicants language would be available in the community.

…

2.6.    The Minister found that the Applicant’s remorse was ‘not sufficient to prevent him reoffending a number of times over a period of some years’, despite the Minister having no evidence or indication that the Applicant was remorseful prior to the most recent offending:  ...

2.7.    The Minister positively found that the Applicant had not engaged in any ‘rehabilitative efforts’ in relation to Alcohol, despite:

2.7.1    the fact that there was evidence before the Minister that the Applicant intended to undertake further formal and informal rehabilitative efforts if he was released;

2.7.2    the Minister making no finding that the Applicant would not undertake these efforts if released; and

2.7.3    the Applicant having been in the community for 11 months prior to the Minister’s decision;

2.7.4    the Minister being aware that the Applicant had been given, and would be given, no opportunity to inform him of any rehabilitative efforts undertaken by the Applicant;

2.7.5    the fact that the Minister knew, must have known or ought reasonably to have known, that the information in relation to rehabilitative efforts was incomplete or likely to be incomplete; and/or

2.7.6    there being information or documents readily available to officers under the Migration Act, and to the Minister had he sought them, which would bear on the Minister’s finding.

2.8.    The Minister found that there was ‘no evidence’ that he had been able to overcome issues arising from his PTSD with ‘medical treatment’, despite there being no material before the Minister regarding the effectiveness of ‘medical treatment’:  ..

2.9.    The Minister’s errors with respect to the consideration of the risk posed to the Australian community by the Applicant were material to the Minister’s exercise of power.

92    There is no particular [2.3]. Particular [2.5] is not pressed.

93    The remaining particulars are to be considered in light of the conclusions I have reached in upholding Grounds 1 and 4 so far as they are relevant, including my interpretation of the Reasons, my observations about the content of the material before the Minister and my conclusions about the nature of the fact finding task implicitly required by s 501BA(2)(b) of the Act.

94    The particulars in [2.2] and [2.7] raise similar issues. I will turn to them first before dealing with the remaining arguments in different order.

95    The applicant submits that there was material before the Minister that directly contradicted the adverse finding about his absence of rehabilitative attempts in relation to alcohol, such that there was no reasonable basis upon which it could have been made. I have already concluded that the material before the second delegate (and the Minster) was not as extensive as the Tribunal information on that topic. However, it did include material that showed that the applicant was indeed able to complete programs in prison notwithstanding his earlier statements about his language difficulties, and that the Living Without Violence course was in some part dedicated to substance abuse (including alcohol abuse).

96    Counsel for the Minister submitted that the Minister should be taken to have appreciated that the applicant had completed the Living Without Violence course, but did not consider that course to constitute rehabilitative efforts in relation to alcohol. There are two problems with that submission. First, whilst I accept that there is a reference to the Living Without Violence course in the Reasons, the Reasons themselves do not disclose that the Minister correctly understood what that entailed. Secondly, as I have mentioned, the material upon which the Minister relied in support of his conclusion predated the applicant’s completion of the Living Without Violence course. It is reasonable to infer (and I so find) that the Minister would not have based his reasoning on the applicant’s dated statement of 2018 if he had engaged at any level with the later evidence about the applicant’s successful completion of the course.

97    Counsel for the Minister then submitted that the Minster should be taken to have appreciated that the material before him was dated. Whether or not that is so is not to the point. The question arising on this ground of review is whether it was reasonably open to the Minister to make that finding on the material before him, dated or otherwise. There may be cases in which conclusions as to a present state of affairs may well be made by drawing inferences from dated material. But that is not the manner of reasoning adopted by the Minster in the present case. The manner of reasoning involves a selective use of dated evidence as though it is the most up to date, in circumstances where the Minister has actual possession of more up to date and contradictory material.

98    The contentions in particular [2.2] are upheld.

99    Particular [2.7] is to the effect that the finding that the applicant had made no rehabilitative attempts in relation to alcohol was affected by unreasonableness or illogicality because it was a finding not open to be made in light of the materials referred to.

100    That argument should also be accepted. Again, it must be emphasised that it is permissible for the Minister to exercise the power in s 501BA(2) without first affording the affected visa holder an opportunity to be heard. However, if that course is taken, a practical consequence may be that there is an absence of evidence (or at least a gap in the evidence) bearing on a topic the Minister considers to be relevant. That absence or gap may limit the reasoning processes that are reasonably open to the Minster. For example, it may not be permissible (that is, within the bounds of legal reasonableness) for the Minister to proceed as though he has before him everything the applicant may have to say on the topic to the present day. It may not be permissible in the requisite sense to draw inferences about a current state of affairs by reference to an earlier state of affairs. It may not be logical to draw a positive inference that an event has not occurred merely by reference to the absence of evidence as to whether or not it has in fact occurred. I am satisfied that errors of those kinds occurred in the applicant’s case.

101    The problem is demonstrated by the Minister’s reasoning to a conclusion that the applicant had made no rehabilitative attempts in relation to his abuse of alcohol. It also manifests in the Minister’s finding at [50]. There, the Minister noted the remarks of a sentencing judge to the effect that the applicant had “reasonable prospects of rehabilitation” if he undertook treatment recommended by an expert psychiatrist. The Minister continued:

…  I agree with this assessment, but whether he continues the treatment in the community has not yet been established and ‘reasonable’ prospects of rehabilitation leaves open a risk of reoffending.

(emphasis added)

102    Like many passages in the Reasons, the words of [50] are duplicated from the written reasons of the second delegate. It may be that the cutting and pasting of passages of reasoning from the older decision had the perceived benefit of administrative efficiency. However, in the particular circumstances of the present case, the exercise in efficiency resulted in the Minister reasoning in an illogical way. The Minister adopted the conclusion that the question of whether the applicant would continue treatment in the community had not yet been tested. The expression “not yet” speaks prospectively to future circumstances that are yet to play out. The words make sense at the time of the April 2020 decision, at which time the applicant had not yet been released. They make little sense when considered from the date of the Minister’s decision, the applicant having been released into the community some 11 months prior.

103    Again, speaking in the abstract, it may well have been open to the Minister to draw inferences about the likely current state affairs on the basis of what was known about the past, but that is not a course of reasoning he in fact adopted.

104    The reasoning proceeds from the erroneous premise that the Minister has before him all of the information that bears on the topic of the applicant’s rehabilitation efforts following his release into the community, when (as a consequence of the choice not to afford procedural fairness) he plainly did not. Moreover, the Minister has extrapolated from the applicant’s statements made whilst in prison to support an assumption that he would not be able to access rehabilitation and counselling services in the community delivered in his own language. The factual foundation for that assumption is not stated in the Reasons, nor is there any evidentiary material in the Minister’s brief to support it.

105    The error alleged in particular [2.8] concerns the Minister’s finding at Reasons [46] (extracted above at [21]). There, the Minister recorded that the applicant “states that he drinks to try to get away from horrible mental images of seeing his father killed”. The Minster went on to conclude that “there is no evidence that he has been able to overcome this problem by medical treatment and I therefore expect that he will have to continue to deal with it for the foreseeable future”. On the basis of those conclusions, the Minister said that the applicant remained at risk of using alcohol to try to cope.

106    Counsel for the applicant submitted that such reasoning could only be permissible (that is, within the bounds of legal reasonableness) if the applicant had been afforded the opportunity to furnish evidence going to the topic, or if evidence on the topic had otherwise been obtained by the Minister or put before him. I accept that submission. Again, I should not be understood to say that the Minister was obliged to afford the applicant natural justice. The error lies in the Minister proceeding from the fictional footing that the applicant’s dated statements about his past circumstances represented all that he had to say about his current circumstances, and in reasoning from the absence of evidence about the outcome of medical treatment to the positive conclusion that there were none.

107    As alleged in particular [2.4], there is further error in the Minister’s statement (at [57]) that he was “not convinced” that after 15 years in Australia the applicant’s English skills would improve sufficiently to allow him to undertake adequate rehabilitation to not reoffend. A similar finding is made at [53]. Those findings were based on the applicant’s own statements that he had been unable to undertake rehabilitation programs because of his limited English. I have already found that those statements were dated May and June 2018 (when the applicant remained in prison), and they predated later statements and other evidence showing that more than 12 months later the applicant had indeed been able to successfully participate in rehabilitation activities. Like the earlier findings, the findings in these passages are lifted without alteration from the reasons given by the second delegate in relation to the April 2020 decision.

108    Particular [2.6] concerns the Minister’s conclusions about the applicant’s remorse. The applicant’s most recent proven offence occurred in September 2013. When considering that offence, the Minister recorded remarks of the sentencing judge to the effect that the applicant had entered an early guilty plea, that the offence was not premeditated and the applicant had expressed remorse. The Minister continued (at [54]):

I accept that he is remorseful for his criminal behaviour, but this remorse was not sufficient to prevent him reoffending a number of times over a period of some years, with his more recent offending showing a clear escalation in seriousness over the early offence.

(emphasis added)

109    It was submitted that that paragraph must be understood as containing a finding that the remorse the applicant had expressed after committing the September 2013 offence was not such as to prevent the commission of further offences. It was then submitted that there was no evidence before the Minister to suggest that the applicant had committed any offences after September 2013, nor was there evidence that the applicant had expressed remorse in respect of offending that occurred prior to that time. Accordingly, it was submitted, the Minister’s conclusion that feelings of remorse had not been such as to prevent further offending was unsupportable.

110    For the Minister it was submitted that the passage at [54] of the Reasons involved a mere infelicity of expression and that it should be understood as recording observations that the applicant’s criminal conduct had continued over a sustained period of about five years and that any feelings of remorse had not prevented the commission of the crimes generally.

111    I do not accept the Minster’s submissions. The applicant’s argument does not involve an overly technical approach to the Reasons, nor does it depend on an impermissible selection of language taken out of context from the remainder of the Reasons as a whole. The passage at [54] is directed to the important question of whether the applicant had insight and remorse into his prior offending, which in turn was critical to the Minister’s assessment of the risk he presently posed to the Australian community. Moreover, a search in the Reasons for other material bearing on the same topic yields nothing that might cause the reader to interpret the passage at [54] in any other way. The effect of the reasoning is that the Minister has failed to assess the significance of the applicant’s stated remorse. I emphasise again that the sub-topic of the applicant’s remorse is not to be elevated to a mandatory consideration in every case. However, the Minister in the present case identified the topic as one that was relevant. His analysis bearing on that topic is legally unreasonable in the sense that it proceeds from a factual assumption that finds no support in the material upon which the Minister purported to rely.

112    It was not reasonably open to the Minister to reason as he did in the multiple instances impugned in Ground 2.

Materiality

113    Given the highly evaluative nature of the statutory task under s 501AB(2), I am satisfied that if the Minister had acted within the bounds of legal reasonableness, he might have arrived at a different conclusion with respect to the topic of the applicant’s rehabilitation, and hence in relation to the statutory question of what the national interest required. I am fortified in that view by the several instances of illogicality that resulted from the adoption of reasoning employed by the second delegate, the treatment of dated material as if it were current, or a combination of those two things. Viewed in their totality, the errors are material in the sense that it could not be said that a legally authorised manner of reasoning would inevitably have resulted in the cancellation of the applicant’s visa.

114    The finding that the applicant’s stated remorse had not prevented him from committing further offences was particularly damaging having regard to the importance the Minister placed on the risk he present to the Australian community and his additional adverse findings about the lack of rehabilitation.

115    I should not be understood as finding that acting in a legally authorised way would have involved the Minister providing the applicant with an opportunity to be heard or otherwise obtaining more information. It is sufficient to conclude that if the Minister had acted within the bounds of legal reasonableness on the information before him, it could not be said that he would necessarily have arrived at the same outcome.

Ground 3

116    This Ground begins as follows:

3.    The decision of the Minister was affected by jurisdictional error in that, in considering the best interests of the minor children impacted by the Decision the Minister:

3.1.    reasoned in a manner that was unreasonable, illogical and/or irrational;

3.2.    failed to give real, genuine and proper consideration to a matter which the Minister himself had identified as a ‘primary consideration’ and which had been the subject of representations by the Applicant under the earlier s 501CA process; and/or

3.3.    failed to engage in necessary reflection upon the whole consideration of the human consequences involved, or to confront ‘what is being done to people’.

117    Particular [3.4] contends (correctly) that the Minister identified that the best interests of the applicant’s children was a primary consideration, and that their interests were best served by the applicant continuing to hold a visa, so that they may have personal contact with their father in the future:  Reasons at [66] and [79].

118    Particulars [3.5] to [3.8] set out various matters about which the Minister was aware, namely that:

(1)    the applicant’s ability to maintain a connection with his children was limited while he had been in prison and immigration detention for a period of almost seven years:  (Reasons at [70] – [74]);

(2)    the applicant had been in the community from 27 June 2020 until the time of the Minister’s decision on 1 June 2021:  (Reasons at [6]); and

(3)    the applicant had an active and regular role in his children’s lives prior to his incarceration in 2013 and intended to resume that active role “should he be released”: (Reasons at [68]);

119    It is then alleged (at particular [3.8]) that the Minister made no finding that the applicant would not resume (or had not resumed) that active role while in the community. The remaining particulars allege that despite the Minister’s knowledge, he failed to have regard to the fact that a decision to cancel the visa would mean that the applicant would once again be separated from his children after a period of 11 months in circumstances where the applicant had in fact resumed an active relationship with his children.

120    It is contended that the Minister purported to take the children’s interests into account using a “formulaic expression” and that he “failed at any point to confront the reality of what was being done to the Applicant and his children” (particular [3.10]).

121    Before turning to the merits of this ground it is necessary to make some observations about how the applicant’s submissions were advanced before me and how I have interpreted them.

122    In written submissions, Counsel for the applicant described the task of the Minister in having regard to the best interests of the children in the following way:

73.    It is pertinent to recall recent statements of this Court explaining what is required by the Minister in exercising powers under the scheme for character cancellation which includes s 501BA. In Hands v Minister for Immigration and Border Protection, Allsop P [sic] said [(2018) 267 FCR 62 [sic] at 630 [3] (Markovic J agreeing). (Emphasis added.) This paragraph has been cited in many subsequent decisions of this Court:  see, eg, Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165; Meyrick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 209]:

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law … .  The consequences of these considerations are that 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. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

74.    The ultimate relevant obligation on the Minister making a decision under s 501BA(2) is to consider the exercise of a discretion to cancel a visa in the national interest. The Minister ‘was under a legal obligation to consider the merits of [the] particular case[] and … such consideration had to be meaningful, in the sense of being ‘proper, genuine and realistic’’. Such consideration had to be given ‘to the issues and material before the decision-maker’. The requirement ‘focusses on the adequacy of his intellectual engagement with the relevant material’. In the context of a general discretion, it requires that proper, genuine and realistic consideration be given to the exercise of that discretion, which necessarily extends to matters the decision-maker has identified as relevant to the decision – and, a fortiori, those identified as a ‘primary consideration’.

123    Following the reservation of judgment on the application for judicial review, the High Court delivered judgment in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417. The question in that case concerned the matters that a delegate of the Minister was required to consider when identifying whether there was “another reason” to revoke a visa cancellation decision under s 501CA(4) the Act. In that context, the delegate had received representations provided by the former visa holder in accordance with s 501CA(3). The more specific issue was whether the delegate was obliged to have regard to Australia’s non-refouelement obligations under international law in the exercise of the power. The High Court was concerned with a question arising in a different legal factual context than that arising here, however, the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) issued a more general caution about the use of “labels” in advocacy and jurisprudence under the Act:

24    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.

25    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.

26    Labels like ‘active intellectual process’ and ‘proper, genuine and realistic consideration’ must be understood in their proper context. 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 Peko-Wallsend, ‘[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.

27    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(footnotes omitted, emphasis added)

124    The statements at [26] were directed at phrases employed in judgments of this Court, including the judgment of Allsop CJ in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628, upon which the applicant before me relies.

125    The applicant’s submissions must, of course, be approached having regard to the caution that there is no single test prescribing the degree of intellectual effort attending the statutory task of ascertaining what is in the national interest for the purpose of s 501BA(2) (nor in the consideration of sub-topics the Minister identifies as relevant to the task). Consistent with the principles stated in M1, there is no general warrant for this Court to substitute its own view for that of the decision-maker.

126    I do not apprehend the applicant to be inviting the Court to do anything of that kind. Nor do I consider the judgment of Allsop CJ in Hands to suggest that there exists a single formula or label intended by his Honour to describe the Minister’s task in all cases and all contexts. Fixed rules, rigid taxonomy and inflexibility in approach are not posited in Hands or in any other judgment of this Court to which the High Court referred. The applicant’s submissions may be understood in the same way:  phrases such as “proper, genuine and realistic consideration” are used in the submissions to point to an idea, properly nuanced in submissions in a way that is consistent with the caution subsequently issued in M1.

127    In Hands Allsop CJ referred to the text, context and purpose of the provisions of the Act conferring powers that affect a particular factual subject matter, namely, the lives of people. The concern is one that the Minister in the present case said that he was alive to:  the applicant has minor children residing in Australia. The task of the Minister was to first identify and then have regard to the impact the cancellation of the applicant’s visa would have on their lives. Necessarily, that entailed weighing in the balance the children’s actual factual circumstances.

128    The importance of the factual question the Minister asked himself, informs the legal question of whether he “genuinely” considered the question. The word “genuine” is used in juxtaposition to the consideration (or purported consideration) given on the face of the Reasons.

129    The Minister referred to the circumstance that the applicant had had limited time with his children during his custodial sentence. Standing alone, that is a correct finding, albeit one that relates to the period of time before the applicant’s release from prison nearly two years prior.

130    The Minister’s utilisation of outdated information throughout the Reasons as though it were current is exemplified in respect of this topic. The Reasons read as though they were prepared for the purpose of explaining the April 2020 decision, replicating the written reasons for that earlier decision in every substantive respect.

131    The Minister stated, in the present tense, that the applicant “has been separated from his children since he was imprisoned in 2013”, that the children “have missed him while he has been imprisoned”. He repeats the applicant’s dated submission about what he intended “if he is released”. The Minister’s references to the dated submissions in the present tense is not easy to reconcile with his knowledge that the applicant had in fact been released from prison, nor with the Minister’s awareness that he had not afforded the applicant an opportunity to be heard or otherwise sought up to date information.

132    The Minister’s concluding paragraph contains an acceptance that the applicant “has been closely involved in the early lives of his children and remains important in their development as minors”. I am satisfied that that paragraph is formulaic in the sense that it neither constitutes nor evidences the proper performance of the fact finding task the Minister himself identified should be undertaken. The Minister’s failure to make any finding about the present day circumstances of the children had the consequence that he was unable to determine the weight to be afforded to the consideration he described as “primary” in reaching his ultimate conclusion that the visa should be cancelled. The statement that the applicant remains important in his children’s lives is not a summation of any found facts about the role the applicant in fact played in his children’s lives at the time that the power was exercised.

133    As Gleeson J said in M1 at ([111]), the mere fact that a decision-maker appears to have copied the language of another decision is not necessarily indicative of jurisdictional error:  Wu Shan Liang at 266; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [10]; MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at [66]; Hands at [3]. However, in the present case I consider the duplication of the reasons previously given by the second delegate both caused and evidences a failure on the part of the Minister to undertake the task of identifying how his decision under s 501BA(2) would impact the applicant’s children as a matter of factual reality. The Minister’s references to the previous circumstances of the children in the present tense is particularly problematic. Those passages in the Reasons reinforce my conclusion that the Minter did not turn his mind at all to their present day circumstances and so could not have weighed those circumstances in the balance as a primary consideration.

134    As with the other grounds of review, I should not be understood as elevating the best interests of a visa holder’s children to the status of a mandatory relevant consideration and it is not necessary that I do so in order to uphold the applicant’s argument. The error lies in the failure of the Minister to perform the fact finding task that necessarily followed from his own identification of the topic as not only relevant but of critical importance.

135    It cannot be said that genuine consideration of the children’s actual circumstances could not have resulted in a different outcome. It is sufficient to observe that the Minister himself regarded the interests of the children as a consideration that should be afforded significant weight. The greater the impact of the decision upon them, the more weight that might be ascribed to their interests. I am satisfied that upon giving genuine consideration to the actual and current circumstances of the children, the Minister may have made findings that weighed more heavily in the balance than the statement that the applicant “remained important” in their lives. Ground 3 is upheld on that basis.

Conclusion

136    A writ of certiorari will issue quashing the Minister’s decision. Whether there should be any reconsideration of the exercise of the power is entirely a matter for the Minister.

Associate:

Dated:    12 October 2022