Federal Court of Australia
EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1349
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant be granted leave to file and rely upon the further amended originating application, upon the applicant’s solicitor’s undertaking to e-file that application within 3 days.
2. The name of the respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.
3. The further amended originating application be dismissed.
4. The applicant pay the respondent’s costs (except for the costs of and incidental to the respondent’s application made on 6 September 2022 in respect of which the respondent has been ordered to pay the applicant’s costs).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THAWLEY J:
INTRODUCTION
1 The applicant applies for judicial review of a decision of the respondent (Minister) made on 29 October 2021. By that decision, the Minister decided to cancel the applicant’s ex-citizen visa under s 501(3) of the Migration Act 1958 (Cth). Section 501(3) relevantly provides:
501 Refusal or cancellation of visa on character grounds
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
2 The rules of natural justice do not apply to such a decision. Section 501(5) provides:
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
3 The relevant facts are set out in further detail when dealing with the four grounds of judicial review. For introductory purposes, it is sufficient to provide the following brief outline.
4 The applicant has a serious criminal record. On 15 April 2016, he was convicted in the District Court of New South Wales on four counts of robbery in company and sentenced to eight years and two months imprisonment. The convictions arose from four separate incidents in 2014 and 2015. The first three incidents involved the applicant, in company, assaulting and robbing individuals in the street. The fourth incident involved the applicant luring his victim to a park at which point the victim was assaulted by the applicant and his associates, in what the sentencing judge described as a “case of homosexual bashing”.
5 The applicant’s ex-citizen visa was first purportedly cancelled by a delegate of the Minister under s 501(3A) of the Act in March 2019. On 4 June 2021, the Federal Circuit Court of Australia declared that decision invalid and ordered the release of the applicant from immigration detention forthwith: EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436. The decision was a nullity because the delegate purported to cancel a visa which the applicant did not in fact have.
6 Before that judgment was delivered, the applicant made an application for a protection visa, in the course of which a protection finding within the meaning of s 197C(4) of the Act was made. Upon delivery of the judgment on 4 June 2021, the applicant withdrew his protection visa application.
7 Also on 4 June 2021, a decision was made by the Minister, acting personally under s 501(3) of the Act, to cancel the applicant’s ex-citizen visa. The applicant was not released from immigration detention.
8 The applicant applied for judicial review of the decision made by the Minister to cancel the applicant’s ex-citizen visa under s 501(3) on 4 June 2021. That application was listed for hearing before Katzmann J on 1 November 2021. The applicant filed written submissions in support of the application on 11 October 2021. On 25 October 2021, the Minister advised her Honour’s chambers that the Minister wished to concede the matter without a hearing.
9 Consent orders were sent to chambers at 3:18pm on 29 October 2021. At 3:20pm, the applicant’s solicitor sent to the Minister material said to be “relevant in the event that the Minister intends to again consider cancellation of [the applicant’s] ex citizen visa”. The material comprised four statements, being statement of the applicant and his family members, an expert psychological risk assessment and a hospital discharge summary. The email stated that the applicant’s solicitors were preparing submissions and asked that no decision be made until after 2 November 2021 so that the submissions could be taken into account.
10 At 3:54pm on 29 October 2021, the parties were notified that Katzmann J had made the consent orders quashing the Minister’s decision to cancel the applicant’s ex-citizen visa and requiring the applicant to be released from immigration detention.
11 At 5:41pm on 29 October 2021, the applicant’s solicitor was informed that the Minister had made a further decision to cancel the applicant’s visa, being the decision the subject of this application for judicial review. By a further amended originating application, the applicant advanced four grounds of review.
GROUND 1
Ground 1(a) to (d)
12 Ground 1(a) to (d) was as follows:
Grounds of application
1. The decision of the respondent is affected by jurisdictional error because the respondent’s state of satisfaction that cancellation of the applicant’s ex-citizen visa was in the national interest was not formed reasonably, was the product of illogical reasoning, was formed on a misunderstanding of the legal consequences of the decision and/or failed to take into account mandatory relevant considerations.
Particulars
a. In forming a view as to whether cancellation of the applicant’s ex-citizen visa was in the national interest, the respondent was required to, and further or alternatively chose to, consider Australia’s international non-refoulement obligations under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees (Refugees Convention), Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR).
b. In considering Australia’s international non-refoulement obligations, the respondent reasoned that:
i. although the applicant did not have on foot an application for a Protection visa, it was open to the Applicant to apply again for a Protection visa (at [94]);
ii. even if an application for a Protection visa made by the Applicant was refused because of the “ineligibility criteria”, it was likely that a protection finding for the purposes of s 197C(3) of the Migration Act 1958 (the Act) would be made on such an application (at [97]-[98]);
iii. given the applicant’s fears for his safety if returned to Afghanistan which had been indicatively assessed by the Department of Immigration to be well-founded, it was likely that the Applicant would apply for a Protection visa again once his ex citizen visa was cancelled and he held no other visa (at [99]); and
iv. therefore, it was unlikely that the decision to cancel the applicant’s ex citizen visa would result in his removal to Afghanistan in breach of Australia’s international non-refoulement obligations (at [102]).
c. The chain of reasoning set out in (b) above was not open to the Minister, was unreasonable, illogical and/or erroneous because:
i. in light of the respondent’s position on the applicant’s character, any application by the applicant for a protection visa following the decision is highly likely to be refused even if a protection finding within the meaning of s 197C(3) of the Act is made;
ii. for that reason, given the terms of s 197C(3) and the fact that, as the Minister accepted at [92], there is no known prospect of removing the applicant to any other country, the likely result of any such application would be the applicant’s indefinite immigration detention in Australia;
iii. the Minister could not assume or infer from the applicant’s well-founded fears for his safety if returned to Afghanistan that the applicant would be likely to make an application for a Protection visa if the likely result of such application was the applicant’s indefinite detention in Australia;
iv. In particular, the Minister was or ought to have been aware that other persons who had have had visas refused or cancelled despite having well-founded claims to fear harm in their home country had opted to return to their home country when otherwise facing the prospect of indefinite immigration detention;
Particulars
The Minister was or ought to have been aware that at least 63 people in respect of whom the Minister accepted had well-founded claims to fear harm in their home country had been voluntarily removed to their home country when otherwise facing the prospect of indefinite immigration detention in the period 15 December 2014 to 29 October 2021.
v. the Minister took no step to ascertain whether in fact the applicant was likely to make a further application for a Protection visa if his ex-citizen visa was cancelled; and/or
vi. further or alternatively, the Minister was obliged to make the decision on the basis of a proper understanding of the legal consequences of the decision on the basis of the facts as they stood at the time the decision was made, and not the basis of speculation as to future factual matters which might alter those legal consequences if they came to pass.
d. By reason of this unreasonable, illogical and/or erroneous chain of reasoning, the Minister:
i. failed properly to understand the likely legal consequences of his decision, namely the refoulement of the applicant to Afghanistan in breach of Australia’s international non-refoulement obligations; and
ii. failed to take into account mandatory relevant considerations in respect of the national interest in the particular case, and/or considerations which a failure to take into account in the particular case meant that the Minister’s state of satisfaction as to the national interest was not attained reasonably, namely the knowing violation of international law by Australia that would result from the decision by reason of the refoulement of the Applicant to Afghanistan; the consequent possible adverse consequences with respect to Australia’s reputation, international standing, and international relations; and the nature of the undertaking by the Executive government to adhere (in good faith) to the terms of the Refugees Convention, the CAT and the ICCPR as a solemn assurance made to the international community and to the Australian people.
13 The ground has been set out in full because, broadly, it articulates the submissions advanced. The written and oral submissions centred on the Minister’s finding that it was likely that the applicant would apply for a protection visa again if his ex-citizen visa were revoked. The applicant made clear in submissions that Ground 1(a) to (d) was not a “no evidence” ground. Rather, it was a complaint about unreasonable, irrational or illogical reasoning.
14 The aspects of the Minister’s reasoning central to the arguments concerning this ground are as follows:
The Minister chose to take into account Australia’s international non-refoulement obligations – see: Minister’s statement of reasons at [85]. He considered that those obligations “are likely engaged” in relation to the applicant and that removal to Afghanistan would likely breach those obligations: at [92]. There was no known prospect of removal to any other country: at [92]. The Minister accepted that removal in breach of Australia’s non-refoulement obligations would have serious implications for the applicant by reason of the risk of harm he faced and also for Australia in terms of its international standing and reputation: at [93].
A consideration of the risks of the applicant’s harm on a return to Afghanistan weighed in favour of non-cancellation of the ex-citizen visa: at [141]. The Minister accepted that the applicant “would face significant impediments on return to Afghanistan”: at [139]. If returned, there was a “real likelihood” that the applicant “would be subject to a risk of harm due to his religious identity as a Shi’a Muslim and his mental illness” and as a result of being perceived as an Australian citizen and a “westernised returnee”: at [91], [140].
However, the Minister considered it likely that, after cancellation of the ex-citizen visa, the applicant would again apply for a protection visa: at [94] to [99]. It was “highly likely that a protection finding for the purposes of s 197C(3) would be made” and this “would prevent his removal to Afghanistan”: at [117], [141]. Therefore, the Minister considered that his decision to cancel the ex-citizen visa would not result in the applicant’s removal to Afghanistan: at [102], [141].
The Minister considered that, if the applicant was not granted a protection visa, he would face the prospect of indefinite immigration detention and that this would have an adverse impact on him: at [117]. Reading the reasons as a whole, it is fair to say that the Minister proceeded on the basis that there was a real prospect of indefinite detention if the applicant applied for a protection visa given that he had twice been found to represent an unacceptable risk of harm to the Australian community – see, in particular [79], [97] and [117].
15 The Minister’s reasoning in relation to international non-refoulement obligations included:
International Non-Refoulement Obligations
…
[92] While [EUF20’s] protection visa application was not finalised because he withdrew the application, I have for the purposes of the present decision proceeded on the basis that Australia’s international non-refoulement obligations are likely engaged in relation to [EUF20]. This means that his removal to Afghanistan would likely breach these obligations. I also accept that there is currently no known prospect of removing [EUF20] to any other country.
[93] I have considered that any removal of [EUF20] in breach of Australia’s non-refoulement obligations would have serious implications not only for him as an individual in terms of the risk of harm that he faces, but also for Australia in terms of its international standing and reputation.
[94] However, it is open for [EUF20] to apply again for a Protection visa. His previous Protection visa application was withdrawn by himself and not refused by the Minister, and s49(3) of the Act makes it clear that he is not barred by s48A from making a further application for a Protection visa in these circumstances.
[95] A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Provided that [EUF20] does make a valid visa application again, the duty to remove him under s198 of the Act would not apply while his application is being determined. In that context, any claim by [EUF20] that he would face harm on return to Afghanistan could be conclusively assessed in the context of his Protection visa application to the extent that those claims are relevant to the criteria for visa grant.
[96] In this regard, I have noted that s36A of the Act ensures that the Minister assesses and records findings against the protection obligations criteria when considering a valid Protection visa application, even where the visa can be refused on other grounds. Where a criterion for a Protection visa implements a non-refoulement obligation, consideration of whether [EUF20] meets that criterion is in effect consideration of whether that non-refoulement obligation is in fact engaged in his case.
[97] I am cognisant of the possibility that [EUF20] may be refused a Protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria. However, even if he is not granted a Protection visa, any protection finding made for [EUF20] in the course of considering his Protection visa application in respect of Afghanistan would prevent him being removed to that country, except in the limited circumstances set out in s197C(3)(c) (such as where the Minister has decided that [EUF20] is no longer a person in respect of whom any protection finding would be made and that decision is no longer subject to merits review).
[98] While I am aware that Australia’s international non-refoulement obligations may not be fully encompassed by the Protection visa criteria in s36(2), there is no information currently before me to indicate that a protection finding for the purposes of s197C(3), which would prevent [EUF20’s] removal to Afghanistan, may not be made for him even if he engages nonrefoulement obligations with respect to that country. Indeed, the Department’s indicative assessment of [EUF20] previous Protection visa application indicated a high likelihood that a protection finding would have been made for [EUF20] in respect of Afghanistan if he had not withdrawn his application.
[99] I have noted that [EUF20] withdrew his previous Protection visa at a time when he was still holding an Ex-citizen visa. Given [EUF2’s] fears for his safety, which the Department has indicatively assessed to be well-founded, I consider it likely that he would apply for a Protection visa again once his Ex citizen visa is cancelled and he holds no other visa.
16 The Minister’s reasoning as to the legal consequences of his decision was as follows:
Legal consequences of a cancellation decision
[114] I am aware that the statutory consequence of a decision to cancel [EUF20] Ex-citizen visa is that, as an unlawful non-citizen, [EUF20] would become liable to removal from Australia under s198 of the Act as soon as reasonably practicable, and in the meantime, liable to detention under s189 of the Act.
[115] However, I have also noted that the requirement to remove [EUF20] under s198 would not apply if, following my decision to cancel [EUF20’s] Ex-citizen visa, he is granted another visa. I acknowledge that if I decide to cancel [EUF20’s] visa under s501(3) he will be prevented by s501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12A of the Migration Regulations).
[116] As noted above, having withdrawn his earlier Protection visa application, it is open for [EUF20] to apply for a Protection visa again. Provided that his visa application is valid, the duty to remove him under s198 of the Act would not apply while his application is being determined. Nevertheless, I accept that the character concerns about [EUF20], which I have considered in deciding to cancel his Ex-citizen visa, are likely to be also considered in the context of any Protection visa application [EUF20] may wish to make. As noted above, however, these concerns would not obviate the need to make findings in relation to any protection claims [EUF20] may make in a Protection visa application.
[117] Having regard to the Department’s indicative assessment of [EUF20] previous Protection visa application, I consider that should [EUF20] apply for a Protection visa again, there is a high likelihood that a protection finding would be made for him in respect of Afghanistan. The effect of such a protection finding would be that s198 does not require or authorise him to be removed to Afghanistan, except in certain limited circumstances which are not presently relevant (s197C(3)). There is currently no known prospect of removing [EUF20] to any other country. Accordingly, if [EUF20] is not granted a Protection visa, he would face the prospect of indefinite immigration detention. I accept that indefinite detention is likely to have an adverse impact on [EUF20].
17 At the relevant time, s 36A of the Act included:
36A Consideration of protection obligations
(1) In considering a valid application for a protection visa made by a non-citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following:
(a) the non-citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C);
(b) the non-citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country;
(c) the non-citizen:
(i) satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and
(ii) would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non-citizen is a non-citizen mentioned in paragraph 36(2)(a).
(2) The Minister must do so:
(a) before deciding whether to grant or refuse to grant the visa; and
(b) before considering whether the non-citizen satisfies any other criteria for the grant of the visa; and
(c) before considering whether the grant of the visa is prevented by any provision of the Act or regulations; and
(d) without regard to subsections 36(2C) and (3).
18 At the relevant time, s 197C included:
197C Relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:
(a) the non-citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);
(iii) the non-citizen has asked the Minister, in writing, to be removed to the country.
19 Section 198, entitled “Removal from Australia of unlawful non-citizens” contains provisions requiring an officer to remove unlawful non-citizens as soon as reasonably practicable in accordance with the specific requirements of the section.
20 The applicant contended the Minister’s reasoning was erroneous, illogical and unreasonable. The applicant’s written submissions began with the following proposition:
The applicant was highly unlikely to be granted a protection visa if he were to make an application in the future. That is because he been twice found by the Minister to represent an unacceptable risk of harm to the Australian community. In those circumstances, it was likely that any protection visa application would be refused on character grounds under s 501 of the Act.
In circumstances where the grant of a protection visa was highly unlikely, and given that the likely outcome of making such an application was therefore the applicant’s indefinite immigration detention, there was “simply no basis for the Minister to find that it was likely that the applicant would apply for a protection visa again if his visa was cancelled”.
In particular, there was no sound basis for the Minister to assume or infer, from the premise that the applicant has well-founded fears for his safety if removed to Afghanistan, that the applicant would therefore decide to make an application for a protection visa. It cannot be assumed that a person would choose an “indefinite prison sentence in Australia” over taking their chances in finding safety in their home country. In this regard, the applicant referred to documents which the Minister had produced pursuant to a notice to produce, being data indicating that there were at least 63 people between 15 December 2014 and 29 October 2021 who were the subject of a positive protection assessment but who, upon losing their visa, were voluntarily removed to their home country. The applicant contended that it should be inferred that these people only chose voluntary removal because the only other option was indefinite detention.
21 The applicant then submitted:
(1) First, in finding it “likely” that the applicant would apply for a protection visa again if his visa was cancelled, the Minister was, in truth, engaging in no more than speculation. The applicant had withdrawn his previous protection visa application immediately upon the original s 501(3A) decision being declared a nullity. He had not sought to make a further application in the nearly 5 months which had elapsed since the Minister had made the first s 501(3) decision.
(2) Secondly, the conclusion reached by the Minister was incorrect. It could not reasonably be concluded, on the evidence before the Minister, that it was “likely” that the applicant would apply for a protection visa again if his visa was cancelled.
(3) Thirdly, the proper course was for the Minister, in taking into account the direct and immediate statutorily prescribed consequences of the decision, to avoid speculation and to assess those consequences on the basis of the facts of the matter before him. According to the applicant, the Minister should have:
(a) assessed the prescribed statutory consequence that upon cancellation of his visa (subject to any judicial review application) officers of the Department would be required to remove the applicant from Australia as soon as reasonably practicable: s 198(2A) of the Act;
(b) recognised that, in this, Australia’s non-refoulement obligations would be irrelevant by reason of s 197C(1) of the Act; and
(c) concluded that, there being no known prospect of removing the applicant to any other country, the applicant would be required to be removed to Afghanistan in breach of Australia’s international non-refoulement obligations.
22 The applicant submitted that it was irrelevant that the facts leading to that consequence might change in the future (if the applicant made an application for a protection visa) to assessing the direct and immediate statutorily prescribed consequences of the decision.
23 The applicant submitted that the error could be characterised as:
(a) unreasonable or illogical reasoning in finding that the applicant was “likely” to make a further application for a protection visa;
(b) a failure to understand or take account of the direct and immediate statutorily prescribed consequences of the decision; or
(c) a failure to take into account the matters inherent to assessment of the national interest and thus mandatory relevant considerations in the circumstances of the case.
24 Before addressing these grounds, and as the applicant recognised in his submissions, it is appropriate to observe that the concern of judicial review is with the legality of the challenged decision and not the merit of the decision. The Court’s decision about the legality of a decision should not be misunderstood as an endorsement of its merit.
25 Having made those observations, the answers to the applicant’s formulations of error are as follows:
(a) Not every decision-maker would have concluded that it is likely that the applicant would make a further application for a protection visa. However, this decision-maker did reach such a conclusion. There was an “evidentiary basis” for the decision in the sense that there was material before the Minister from which the conclusion could be reached. What is likely to occur in the future is inherently unpredictable. Labelling a prediction as to future events as “speculation” says little about the legality of the conclusion reached. Contrary to an implicit submission advanced by the applicant, the Minister was not required by notions of legal reasonableness to consult the applicant on the question whether the applicant would make such an application at some future time. The Minister’s conclusion was not one which no rational decision-maker could have reached. The conclusion was not illogical in the sense of having been reached through a process of reasoning which involved a non sequitur. Nor was the conclusion legally unreasonable either in the manner it was reached or in the result. Legal unreasonableness is not established by showing that there exist other decision-makers who, acting reasonably, would disagree. Legal unreasonableness might be established by showing that the conclusion was arbitrary or capricious or one which no reasonable person could have reached on the material, taking into account available processes of reasoning in relation to future events. That is not the case here.
(b) Recognising that the Minister had reached a conclusion that he considered the applicant would apply for a protection visa, the Minister then took into account the legal consequences of his decision, including the direct and immediate statutorily prescribed consequences of the decision. The Minister’s reasoning in this respect has been set out earlier. No complaint was made in relation to any aspect of it. The complaint was, rather, with the factual conclusion that it was likely that the applicant would make a further protection visa claim.
(c) The applicant has not demonstrated a failure to take into account a particular matter which was, in the circumstances of this case, a mandatory relevant consideration.
26 It follows that Ground 1(a) to (d) is not made out.
Ground 1(e)
27 Ground 1(e) proceeded on an assumption that the Minister had concluded that the likely consequence of the decision was the applicant’s indefinite immigration detention. Assuming that this was the Minister’s conclusion, the applicant contended that the decision was affected by jurisdictional error on the basis that the Minister failed to take into account that this consequence would also result in a knowing violation of international law.
28 The Minister submitted that:
“the prospect that the applicant would be indefinitely (not “permanently”) detained as a consequence of the operation of ss 189 and 196 of the Act did not require the Minister to take into account as a mandatory relevant consideration the impact that would have on Australia’s compliance with international law, possible reputational impact, or Australia’s “solemn assurance” to adhere to the terms of the ICCPR”;
unenacted international law obligations (such as those arising under the ICCPR) are not part of Australian law, and were not a mandatory relevant consideration in the Minister’s exercise of power under s 501(3): Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [20] (Kiefel CJ, Keane, Gordon and Steward JJ);
the applicant’s submission that relies on the prospect of reputational harm to Australia as a consequence of a potential breach of such an obligation “ignore[s] the choice Parliament made about the extent to, and manner in, which Australia’s international non-refoulement obligations are incorporated into the Migration Act”: Plaintiff M1 at [34].
29 In his reasons for decision, the Minister referred to a “prospect” of indefinite detention: at [117]. Read in context, the Minister considered it likely that the applicant would be detained for some indefinite period of time after he applied for a protection visa.
30 For reasons analogous to those given by the High Court in Plaintiff M1, I consider that the question whether such detention might result in a knowing violation of international law and, if so, in what way, was not a mandatory relevant consideration in exercising the power under s 501(3). In my view, the Minister:
considered it likely that the applicant would apply for a protection visa if he cancelled the applicant’s ex-citizen visa;
considered it likely that a protection visa would not be granted;
recognised that, in this situation, indefinite detention was likely;
considered that the question of whether a protection visa should be granted would likely be dealt with at a later time when an application was made;
31 On the basis that those conclusions are correct, it was not a mandatory consideration in considering the exercise of the power under s 501(3) to take into account whether, if the applicant did apply for a protection visa, and the application were refused, that would result in indefinite detention which might result in a knowing violation of international law.
32 It follows that Ground 1(e) is not made out.
GROUND 2
33 Ground 2 was as follows:
2. The decision of the respondent is affected by jurisdictional error because the respondent failed to engage in an active intellectual process with respect to the material before him for the purposes of making the decision, and/or acted unreasonably in making the decision.
Particulars
Delegate’s findings and reasoning on danger to the community
a. The evidence and material before the respondent included a protection visa assessment made by a delegate of the respondent (delegate) on 29 January 2021 in the course of considering an application for a Protection visa made by the applicant on 28 July 2020.
b. As part of this assessment, the delegate found that the applicant does not constitute a danger to the Australian community.
c. The respondent failed to engage in an active intellectual process with that finding, and the reasoning which led to it, in his consideration of whether the applicant posed an unacceptable risk to the Australian community.
New evidence
d. The respondent made a previous decision to cancel the applicant’s visa under s 501 (3) of the Act on 4 June 2021 (previous decision). The applicant applied to the Federal Court for judicial review of that decision (previous proceeding). The respondent agreed to consent orders quashing the previous decision.
e. Before final orders were made, on 29 October 2021 at 3:20pm the applicant sent further evidence to the respondent by email, including updated statements by the applicant and his family members and expert evidence on the applicant’s risk of reoffending (new evidence).
f. The new evidence was received by and known to the respondent prior to the decision being made.
Particulars
i. The new evidence was sent to the “Minister’s Mailbox” address (Minister@homeaffairs.gov.au), copied “to the “Complex Cancellations address (Complex.Cancellations@homeaffairs.gov.au) and Ms Hervee Dejean and Mr Tom Ellison of the Australian Government Solicitor, the Minister’s solicitors in the previous proceeding (and this proceeding), at 3:20pm on 29 October 2021.
ii. On 29 October 2021 at 3:26pm, “Brooke”, an officer in Complex and Controversial Cases, Character and Cancellation Branch, of the Department of Home Affairs (Department) forwarded the new evidence to the National Character Consideration Centre (NCCC) address (“nccc@homeaffairs.gov.au”), “Nigel”, the director of the NCCC and other officers of the Department and of the Australian Border Force.
iii. On 29 October 2021 at 3:34pm, “Nigel” forwarded the new evidence to “Peter”, the Acting Principal Legal Officer, AAT & Removals Injection Section of the Legal Group in the Department, and another person.
iv. On 29 October 2021 at 3:56pm, “Peter” forwarded the new evidence to “Jack” and other persons, attached to an email which informed “Jack” that the Court had made the consent orders in the previous proceeding. Prior to sending that email, “Peter” and “Jack” had a telephone conversation, the contents of which are presently not known to the applicant. “Jack” held the position of Ministerial Advisor within the office of the Minister.
v. As at 3:56pm on 29 October 2021, the respondent had not yet made the decision which is the subject of this proceeding.
g. The respondent failed to engage in an active intellectual process as to whether or not he should consider the new evidence in making the decision.
34 The ground has been set out in full because, broadly, it articulates the submissions advanced. In submissions, the applicant contended that, in making the decision under s 501(3), the Minister was required to engage in an active intellectual process in assessing the merits of the case before him, referring to Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [46]. The applicant correctly recognised that this requirement is not a warrant for merits review but that the decision-maker must engage with the materials before the decision-maker to the extent contemplated by the particular statutory regime: Plaintiff M1 at [25] and [26].
35 The applicant contended that the Minister fell short of the requisite level of engagement in two respects.
36 First, the applicant contended that the Minister failed to consider the detailed findings of the delegate, in the delegate’s reasons of 29 January 2021, that the applicant did not constitute a danger to the Australian community. This finding was made for the purposes of the protection visa criterion in s 36(1C)(b) of the Act. The applicant observed that this finding was:
(a) made with the benefit of an interview with the applicant and careful consideration of the applicant’s criminal history, mitigating and aggravating factors, risk of re-offending and recidivism, likelihood of relapsing into crime and rehabilitation prospects; and
(b) at least relevant to (and in stark contrast with) the Minister’s finding there was an ongoing risk that the applicant would “re-offend and cause serious physical, psychological and/or financial harm to individuals and to the broader Australian community”, on the basis of which he concluded that “this makes him an unacceptable risk to the Australian community” – see: Minister’s statement of reasons at [79].
37 The applicant noted that the Minister’s failure to consider the delegate’s finding was the subject of an identical ground of judicial review in respect of the previous s 501(3) decision, and submissions in that respect, yet the Minister made no reference to the delegate’s findings. The applicant submitted that the Court should infer that the Minister did not take those findings into account, referring to NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [16].
38 Secondly, the applicant contended that the Minister did not take into account any of the detailed information which was communicated to him by the applicant’s solicitor on 29 October 2021 in circumstances where an active intellectual engagement required, at the least, consideration of whether to take the material into account. The applicant submitted that the material was: before the Minister at the time that the decision was made; obviously relevant and material to the decision to be made; current information (including expert evidence) going to central issues being considered by the Minister, namely the likelihood of recidivism and the applicant’s prospects of rehabilitation. I interpolate that it was not in dispute that the Minister did not consider this material.
39 In respect of the delegate’s finding contained in the reasons of 29 January 2021, the Minister submitted that:
he was neither bound by the views of the delegate, nor required to engage with them directly or to reconcile his own views with them;
the delegate’s reasons were not a mandatory consideration in respect of the Minister’s consideration of the national interest under s 501(3) and that the applicant had not otherwise established that there was an obligation to consider the delegate’s findings.
40 In respect of the applicant’s contention that the Minister failed to engage in an intellectual process by not considering the more recent material provided by the applicant (or considering whether to consider that material), the Minister referred to Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758. The Minister submitted that, in Chetcuti, Bromberg J accepted the Minister’s submission that the statutory scheme of s 501(3) – including s 501(5) that provides that natural justice is not required to be given – left no room to imply from “the subject matter, scope and purpose” of the Act, that the Minister’s decision must be made taking into account material provided by the affected person, whether at all or the most recent material. The Minister submitted that on appeal, the Full Court expressed no concern with the Bromberg J’s findings in this respect and had no difficulty with the fact that the Minister had been aware of the documents, but chose not to consider them – see: Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; 288 FCR 657 at [35].
41 The Minister was required to engage in an assessment of the material before him relevant to the exercise of power. In the decision of 29 January 2021, the delegate expressed views as to whether the applicant was a “danger to the Australian community” for the purposes of the protection visa criterion in s 36(1C)(b) of the Act. That was a different question from the one the Minister was required to consider, which was whether the applicant was a risk to the Australian community as a component of his evaluative judgment as to whether the cancellation of the applicant’s visa was in the national interest under s 501(3) – see, in case concerning s 501(1) rather than 501(3): Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179; 287 FCR 581. The delegate’s conclusion in the decision of 29 January 2021 was made by a different decision-maker, engaged in the exercise of a different power, by reference to different material. The Minister is correct in the submission that he was not obliged to consider it as a mandatory relevant consideration or otherwise. Specifically to the ground of review advanced, the failure to take the finding into account does not establish a failure to engage in an active intellectual process directed to the statutory task.
42 It is clear from the Minister’s reasons that he was acting promptly in making “a swift decision” because he considered the applicant posed a risk to the Australian community if released. He expressly considered whether he should have afforded the applicant the opportunity of being heard, but determined against that course: at [6] to [8]. I do not infer that the Minister failed to consider whether to consider the new material put forward by the Minister. The applicant has not established that it was an unlawful exercise of the Minster’s powers to choose not to take into account documents provided by the applicant in circumstances where the Minister had not requested such material and desired to make a prompt decision in order (I infer) to prevent the applicant’s removal from immigration detention.
43 It follows that Ground 2 is not made out.
GROUND 3
44 Ground 3 (omitting particulars) was as follows:
3. The decision of the respondent is affected by jurisdictional error because the respondent made critical findings of fact for which there was no evidence or other material before him and/or reasoned illogically or unreasonably in making those findings.
45 The applicant submitted that the Minister made two findings of fact that had no basis in the evidence, each being a “finding of fact that was critical to the assessment”, referring to Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [32]; and SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231; 77 ALD 402 at [19], citing Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-357. The findings were said to be central to the Minister’s conclusion that there was an ongoing risk that the applicant would re-offend and that “this makes him an unacceptable risk to the Australian community”: at [79].
46 The first finding of fact was as follows. Under the heading “Nature of [EUF20’s] criminal conduct”, the Minister referred in his statement of reasons to the applicant’s conviction of four counts of robbery in company for which he was imprisoned, and referred to his prior convictions for three other offences: at [23] to [39]. The Minister then stated:
Pattern of behaviour showing disregard for law
[65] Apart from the serious criminal conduct I have considered above, I have also taken into account the nature of [EUF20’s] other criminal offending. I note that [EUF20’s] most recent criminal conduct involved an innocent victim being lured into a late night meeting. [EUF20] and his co-offenders set upon the victim and physically assaulted him in a cruel and demeaning way when the victim was highly vulnerable. The conduct was pre-planned and it was committed by [EUF20] in breach of bail. This conduct is unacceptable.
[66] I have had regard to [EUF20’s] prior offending of larceny, possessing an unauthorised pistol and goods suspect stolen in premises. I consider that this conduct is unacceptable.
[67] I consider [EUF20’s] criminal behaviour demonstrative of a person who has an ongoing disregard for law and order. This presents a risk to the Australian community that he may re-offend.
47 The applicant observed that the criminal offending described in this passage occurred over a two-year period, between July 2013 and July 2015, when the applicant was 18 to 20 years old. The last offence was more than six years before the Minister’s decision.
48 The applicant submitted that there was no evidence to suggest that the applicant had been charged with, or convicted of, any further criminal offences and that there was no basis in the material to consider the applicant’s “criminal behaviour” demonstrative of a person who “has” (emphasising the use of the present tense) an “ongoing disregard for law and order”.
49 The second finding was as follows. The Minister’s assessment of risk to the community included consideration of the applicant’s mental health; childhood, family and resettlement to Australia; and rehabilitation. The Minister concluded at [64] (applicant’s emphasis):
Whilst [EUF20] has had psychological counselling and participated in some rehabilitative courses whilst incarcerated and detained, the longstanding issues described above, namely his traumatic childhood, lack of family support, perceived differences with his family and his fractured relationship with his father appear to remain untreated and unresolved. I find that this presents a risk to the Australian community that [EUF20] may re-offend.
50 The applicant submitted that there was no evidence to support the finding that, at the time of the decision, the issues faced by the applicant remained “untreated and unresolved” so as to present a risk to the community. The applicant submitted that the only evidence before the Minister was to the contrary, even leaving to one side the new evidence provided to the Minister which was not considered.
51 The applicant referred to a STARTTS psychological assessment report dated 26 May 2020 following an assessment conducted shortly after the applicant’s arrival in immigration detention on 8 April 2020. In respect of the applicant’s “traumatic childhood”, the report identified his symptoms of Post-Traumatic Stress Disorder and recommended he undergo trauma counselling and other psychological treatment. The applicant noted that there were, before the Minister, IHMS Clinical Records of 14 consultations the applicant attended with mental health professionals between 9 April and 2 July 2020 which indicated that the applicant was receiving treatment from STARTTS (trauma counselling) from a psychologist and from a psychiatrist. A statement from the applicant dated 15 December 2020 (December 2020 statement) indicated that he was continuing to take medication and see the psychiatrist. The applicant submitted that there was no evidence that issues stemming from the applicant’s “traumatic childhood” were untreated or unresolved.
52 In relation to family support, the applicant submitted that the evidence was that the applicant now had strong family support and that there was no evidence of a subsisting lack of family support. The applicant referred in this regard to the statement of the applicant’s brother referred to by the Minister at [58].
53 In relation to the applicant’s fractured relationship with his father and perceived differences with his family the Minister stated at [56] (references omitted):
I note that [EUF20] has a reportedly good relationship with his mother, however he does appear to have fractured relationship with his father with a history of physical punishment inflicted at the hands of his father. [EUF20] has reported that he does not get on well with his family as he sees himself as being different to them.
54 The applicant submitted that there was no evidence that the various issues referred to above remained untreated or unresolved. It was submitted that the applicant had evidently received significant trauma counselling and psychological treatment. The most recent evidence was his December 2020 statement, where he explained how this treatment had helped him. He gave evidence that he spoke with his family daily, and that he had developed a better understanding of his father’s mental illness and developed strategies to deal with his challenging behaviours.
55 The applicant submitted that the Minister’s findings at [64] and [67] were each central findings of fact made without any probative foundation, referring to Hands at [47]. The applicant contended that, in making the findings, the Minister fell into jurisdictional error, noting that the absence of any evidence for these findings was one of the grounds of the previous judicial review application, but the findings were made again, on the basis of the same reasoning, without any attempt to identify any evidentiary basis for them.
56 The Minister’s first submission in response was that, “the “critical step” analysis as the basis for establishing jurisdictional error where a finding of fact is made without evidence is not (necessarily) the correct analysis”. The Minister accepted that there was “some authority in this Court that (on one view) might support the proposition the applicant advances”, but that authority of the High Court indicates that a “jurisdictional fact” approach is the law.
57 The Federal Court authority referred to was the decision of Kenny J in SZNKV v Minister for Immigration and Citizenship [2010] FCA 56; 118 ALD 232 at [38]. The Minister submitted that, to the extent the Full Court in Hands at [32] preferred the “critical step” approach, it is not apparent that the issue was argued before the Court.
58 The High Court authority referred to was Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [39] (Gummow and Hayne JJ, with whom Gleeson CJ agreed); Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [31] (Gummow A-CJ, Kiefel J).
59 The Minister’s second submission was that, whichever approach was followed, the applicant’s contention had not been made out.
60 The Minister submitted that the applicant overstated the significance of the Minister’s use of the word “ongoing” at [67], in expressing a conclusion about the applicant’s disregard for law and order. The Minister submitted that, if one reads the Minister reasons in context and in a manner which is not overzealous, what is clear is that the Minister had significant concerns about the applicant’s attitude to law and order, based upon his past criminal offending, including one offence which was “pre-planned”, committed with co-offenders, involving a “cruel and demeaning” physical assault, and was committed in breach of the applicant’s bail: at [65]. It was submitted that the Minister was entitled to form the view he did about the applicant’s attitude to law and order based on his past offending, and observing that the applicant has spent most of the years since his latest criminal offending in 2015 either incarcerated, or in immigration detention. The Minister submitted that there was some “evidence” to support that conclusion.
61 I am persuaded that the Minister’s submissions on this issue should be accepted. The Minister’s conclusions at [67] must be read in the context of the reasons as a whole and the context of the particular section in which it appears. The paragraph was one of three under the heading “Pattern of behaviour showing disregard for law”. Read in context, the Minister’s conclusion at [67] was simply that he concluded as a matter of present fact that the applicant had a disregard for law. That conclusion was based on past behaviour as referred to in [65] and [66] and elsewhere in the reasons. A part of the context is that the applicant had spent most of his time since the latest offending either incarcerated or in immigration detention. The Minister’s conclusion at [67], understood in context, was open on the material and not shown to have been reached in an unlawful way.
62 As to the Minister’s findings at [64], the Minister submitted that it was incorrect that there was “no evidence” to support the finding that the applicant’s issues as identified by the Minister “appear[ed] to” remain “untreated and unresolved”. The Minister emphasised the language employed by the Minister at [64], noting that the Minister found that, notwithstanding the applicant had had counselling and participated in rehabilitation courses, “longstanding issues described above” (traumatic childhood, lack of family support, perceived differences with his family and his fractured relationship with his father) “appear to remain” untreated and unresolved.
63 The Minister’s reasons included the following (references omitted):
Risk to the Australian Community
…
Substance Abuse
[43] Substance abuse appears to be a driver of [EUF20’s] behaviour. In convicting [EUF20] for his most recent and most serious offending, the Court noted that [EUF20] ‘previously indicated that he was under influence of illicit substances when he commits crime. Therein lies the problem, because his culpability on the basis of ice addiction, must be countered by the consideration that when he is on ice, he commits crimes’.
[44] His Honour further commented that [EUF20] ‘accepted responsibility for his actions and that he linked it all to substance abuse’.
[45] In addition to the Court’s findings in relation to his drug use, in his request for revocation [EUF20] has stated that ‘the things that I can change are my peer relationships and use of drugs and attitude’. He recognises that drug use adversely affected his conduct and may have led, to some extent, to his criminal offending.
[46] [EUF20] states he has participated in an addiction program during his incarceration. He states that he now has ‘the maturity and insight into offending to enable me to avoid offending in the future’.
[47] I note [EUF20’s] comments as to how drugs affected his behaviour. He states, ‘I now see that drugs had a bad effect on me. It damages your brain. I am a different person now to when I was using drugs. I handle things better and deal with people better. It has changed how I interact with my family. Drugs affected how I interacted with people’.
[48] [EUF20] states that ‘I have been without drugs for over 5 years now. I think I am a bit wiser now, and more patient’. However, [EUF20’s] access to illicit drugs may have been limited since his incarceration and subsequent detention and his resolve to stay off drugs and alcohol has not been tested outside of a controlled environment.
Mental health
[49] I note that [EUF20] suffers from mental health issues and that he has symptoms consistent with depression and anxiety to a high degree. [EUF20] has reported experiencing suicidal ideation, feeling overly anxious and panic attacks. [EUF20] has suffered from auditory and visual hallucinations and that these hallucinations have lessened since he commenced taking prescribed medication.
[50] Whilst I note that [EUF20] has reported receiving psychological therapy during his incarceration and his detention, psychological assessments submitted by [EUF20] indicate that he often projects anger towards others and that therefore he prefers not to interact with others. [EUF20] has disclosed during a psychological assessment that he experiences sadness and loneliness daily. He has also reported negative thoughts, a tendency to respond with selfblame, anger, pessimism, anxiety, sadness and lack of trust in others, to everyday situations.
[51] I note that [EUF20] has ongoing symptoms consistent with Post Traumatic Stress Disorder (PTSD) as well as comorbid Dysthymia and that his current state of psychological health has been affected by a lack of proper psychological treatment in the past, his reliance on illicit substances to ‘mask’ symptoms and his uncertain future surrounding his immigration status.
[52] [EUF20] currently takes a number of prescribed medications to assist him with his psychological health. I note that [EUF20] medications were switched to Escitalopram ‘to increase compliance’ and that his dose of Quetiapine was increased due to sleep issues.
[53] I acknowledge that [EUF20’s] mental health continues to be an issue for him. [EUF20] has had some therapy whilst incarcerated and he now takes medication to control his symptoms. However, it is unclear what the effect of [EUF20’s] mental health might have if he were released into the community outside of a controlled environment without having had appropriate treatment to deal with his longstanding issues. Indeed, if he were unable to sufficiently control his symptoms with continued therapy and treatment, his mental health may deteriorate and increase the risk that [EUF20] will re-offend.
64 In relation to the applicant’s “Childhood, family and resettlement in Australia”, the Minister reasoned (references omitted):
Childhood, family and resettlement in Australia
[54] I note that [EUF20] was born in Afghanistan and he submits that he was kidnapped by the Taliban at a young age. In information furnished to the Department as part of his application for a Protection visa (submissions), it has been stated that [EUF20] suffered torture and trauma at the hands of his Taliban captors before his mother paid a ransom for his release. The family fled to neighbouring Pakistan and resided there for a considerable period prior to being offered humanitarian resettlement to Australia.
[55] [EUF20] was resettled to Australia in 2008 with his family under Australia’s Humanitarian Program. I note that following his resettlement, [EUF20] struggled to adjust to life in Australia. He struggled to learn English and states that he and his brothers were teased at school. [EUF20] submits he had no formal education prior to his arrival to Australia and that he abandoned his secondary school studies in Australia part way through Year 11. He submits that his parents’ lack of understanding of life in Australia and their lack of support may have caused him to stray. He states that he then fell in with the wrong crowd and started using illicit substances including cannabis, ‘ice’ and cocaine. He began offending at around the same time.
[56] I note that [EUF20] has a reportedly good relationship with his mother, however he does appear to have fractured relationship with his father with a history of physical punishment inflicted at the hands of his father. [EUF20] has reported that he does not get on well with his family as he sees himself as being different to them.
[57] [EUF20] has reported that both of his parents have mental health issues. His father was admitted several times to receive psychiatric care and is easily angered, has had seizures and has had multiple operations “to the head”. I note that [EUF20] believes his father may have been injured as a soldier in the war in Afghanistan. [EUF20’s] mother has had problems with depression and is taking a number of medications to assist her with her condition.
[58] [EUF20’s] brother submitted a letter of support to the Department in which he states that his family (his parents and his siblings) strongly support [EUF20] and desperately wish for him to re-join them in the community. I note that [EUF20’s] brother is able to offer him employment and financial assistance upon his release. He states that “every support [EUF20] needs, I am willing to give. If he is released I can support him financially and with a job”.
65 The conclusion reached at [64] was located in the section of reasons under the heading “Rehabilitation”. That section provided (references omitted):
Rehabilitation
[59] I note that [EUF20] has completed the following rehabilitative and employment courses whilst incarcerated;
• EQUIPS Aggression Program
• EQUIPS Addiction Program
• EQUIPS Foundation Program
• Gurang Life Challenge
• Employment skills course at Western Sydney Institute of TAFE
[60] I have considered [EUF20’s] personal statement, furnished as part of his request for revocation, in which he provides detail about how participating in the above rehabilitative courses has assisted him in reforming his behaviour and staying off drugs. I note particularly [EUF20’s] comments regarding the EQUIPS Addiction Program, ‘The program gave strategies for avoiding going back to drugs - including to avoid going back to the same friends and lifestyle’.
[61] I have also considered the submissions advanced by [EUF20’s] representative and furnished to the Department in the context of his application for a Protection visa, which outline the extent of [EUF20’s] involvement in these rehabilitative courses and the detail provided outlining the content of the above courses. [EUF20’s] participation in these courses weighs in his favour as he has worked towards lessening the risk that he may reoffend.
[62] [EUF20] advised medical staff in the detention centre that he had some psychological counselling whilst he was incarcerated. His diagnosis of PTSD appears to have been made during his incarceration.
[63] In his personal statement to the Department furnished as part of his request for revocation, [EUF20] states that he started to see a psychologist whilst he was incarcerated and this appeared to be beneficial to his psychological state. He states, “I started talking to a psychologist soon after I got to gaol. I opened up to the psychologist. She was good at using different strategies to help me. I have a much better understanding about my mental health. I think if I had this support before, things could have been different”. In submissions to the Department, [EUF20’s] representative contends that ‘the extensive rehabilitation completed by [EUF20] is a strong consideration to indicate he does not present a danger to the community’.
[64] Whilst [EUF20] has had psychological counselling and participated in some rehabilitative courses whilst incarcerated and detained, the longstanding issues described above, namely his traumatic childhood, lack of family support, perceived differences with his family and his fractured relationship with his father appear to remain untreated and unresolved. I find that this presents a risk to the Australian community that [EUF20] may re-offend.
66 In my view, jurisdictional error is not established in relation to the finding at [64]. The applicant emphasises the language used by the Minister that issues “remain” untreated and unresolved. In context, the Minister’s conclusion should be understood as being that he was not satisfied that the applicant’s issues had been fully treated or completely resolved. This conclusion was one which was open on the material. The Minister expressly took into account that the applicant had taken steps to receive treatment for at least some of his issues. He took into account the evidence from the applicant’s brother and the applicant’s December 2020 statement. He referred at [56] to the STARTTS report noting the applicant’s fractured relationship with his father due to a history of physical punishment inflicted by the father, and to the applicant’s comment that he “does not get on well with his family as he sees himself as being different to them”. There was material before the Minister from which a rational conclusion could be drawn that the applicant continued to suffer from mental health issues and that he had not fully recovered from his earlier mental health issues. There was material from which it could rationally be concluded that, if released into the community, the applicant would need to continue treatment or the taking of medication. The Minister’s conclusion at [64] was not the only one that could be drawn from the material. However, it was the Minister’s evaluative judgment based on material from which differing conclusions were open.
67 The applicant has not established that the Minister formed a conclusion, affecting his decision, in respect of which it can be said that there was not a “skerrick of evidence”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17].
68 It follows that Ground 3 is not made out.
GROUND 4
69 Ground 4 was as follows:
4. The decision of the respondent is affected by jurisdictional error because the respondent failed to give proper, genuine and realistic consideration to the merits of the case and/or acted unreasonably in making the decision.
Particulars
a. The parties were notified of the Court’s orders in the previous proceeding at approximately 3:54pm on 29 October 2021.
b. The respondent made the decision before 5:15pm on 29 October 2021.
c. The respondent’s statement of reasons is largely identical to the previous decision and did not address at all some of the matters raised by the applicant in the previous proceeding in relation to the previous decision and further or alternatively did not address or acknowledge the existence of the new evidence.
d. In the circumstances of (a)-(c), it may be inferred that the respondent did not properly engage with the merits of the case before him and/or acted unreasonably.
70 The applicant submitted that the Minister failed to give “proper, genuine and realistic consideration” to the merits of the case before him. It was submitted that such a finding may be made when, for example, the evidence discloses that there was insufficient time for the Minister to engage in the requisite active intellectual process necessary for making a personal decision under s 501(3) of the Act, referring to Carrascalao at [120] to [131].
71 Whilst the applicant’s submissions referred to “active intellectual process” and used the phrase “proper, genuine and realistic” consideration, argument proceeded with a recognition of the observations of the High Court in Plaintiff M1 about the use of such labels – see, in particular at [25] and [26].
72 The applicant submitted that the evidence discloses that:
(a) the Minister had no more than 79 minutes in which to make the decision;
(b) the reasons for decision are largely identical to those which the Minister signed in making the previous s 501(3) decision; and
(c) the Minister did not acknowledge or address criticisms made of the previous decision in the earlier judicial review application, nor the new material submitted for consideration on the applicant’s behalf.
73 The Minister submitted that, even if established, none of these factors, alone or in combination, demonstrated a failure by the Minister properly to consider the merits of the case.
74 The applicant’s reference to 79 minutes arises out of the following sequence of events. On 21 October 2021 at 4:45pm, a detainee brief and submissions were sent to the Minister’s office by way of email from the Director of Complex and Controversial Cases in the Character and Cancellation Branch of the Department of Home Affairs (the Department). The applicant says it should be inferred, and I do infer, that a concession of the previous judicial review proceeding was in contemplation at the time. The email asked for “the Minister’s views on whether he wishes to consider cancelling [EUF20’s] ex-citizen visa after it is reinstated and, if so, when he may wish to do that”. The email was in the following terms:
I am sending this to you in Luke’s absence this afternoon as the matter is time sensitive. The submission and brief have been uploaded in PDMS and will follow later.
Minister Hawke has previously cancelled [EUF20’s] Ex-citizen visa, in the national interest under section 501(3) of the Act, and this matter is before the Federal Court for review.
…
The submission seeks the Minister’s views on whether he wishes to consider cancelling [EUF20’s] Ex-citizen visa after it is reinstated and, if so, when he may wish to do that.
75 The response from the Minister’s adviser was that the Minister was “minded to promptly see another submission if [EUF20’s] visa is reinstated”. The applicant submitted that this should be understood as meaning that the Minister did not wish to see a submission unless and until orders had been made reinstating the visa. In the context in which the emails were written, I do not read the email as stating that the Minister would not consider a submission before orders were made reinstating the visa. In context, the email is merely indicating that a submission would need to be considered if the visa was reinstated, being what was then anticipated to occur. In any event, the email says little about what would actually happen if the Minister were to be provided with a submission before an order was made reinstating the visa.
76 On 22 October 2021 at 9:03pm, the Assistant Secretary of the Character and Cancellation Branch in the Department sent to the Minister’s office a submission, statement of reasons and relevant material for the cancellation of the applicant’s visa. The Assistant Secretary stated that the email was sent “after hours” because “the material will potentially need to be considered urgently”. The Assistant Secretary stated that he would “continue to provide advice on the progress of this matter as necessary”. The email included:
Please see attached PDF versions of the submission (MS21-002424) [EUF20] (26 years of age) - Consideration of cancellation of [EUF20’s] Ex-citizen visa under s 501(2) or s 501(3) of the Migration Act 1958 (the Act).
As advised/discussed this material will potentially need to be considered urgently and therefore I am providing to you electronically out of hours. The submission is also being progressed through the PDMS process.
Attached are the submission, statement of reasons and relevant material.
Please feel free to contact me to discuss further as required. We will continue to provide advice on the progress of this matter as necessary.
77 On 25 October 2021 at 12:15pm the Assistant Secretary sent an email to the Minister’s office with an updated statement of reasons for the cancellation of the applicant’s visa. The email stated:
As discussed, please see attached updated SoR for [EUF20].
Please note that this has been progressed through PDMS for priority clearance to Minister Hawke’s office, with the hardcopy arriving today.
…
We will advise you once we have provided the orders to the Court and as soon as the orders are made.
78 On 29 October 2021, at 3:16pm the Acting Principal Legal Officer in the Department’s Migration and Citizenship Litigation Team advised the Minister’s office that Australian Government Solicitor and the applicant’s lawyers had agreed consent orders to quash the Minister’s prior decision. At 3:56pm the same day, the Minister’s office was told that the Court had made the consent orders. The Minister’s decision was made no later than 5:15pm, 79 minutes later.
79 The applicant submitted that this was not enough time for the Minister to give “proper, genuine and realistic” consideration to the materials annexed to the decision. The applicant noted that the Minister had already made a decision to cancel on the basis of the same materials four months earlier, but submitted that the Minister was now required to approach the materials afresh and that he could not do so with a closed mind merely because he had (invalidly) made a decision on those materials earlier.
80 It is first appropriate to observe that the Minister had already considered much of the material before him in relation to his earlier decision. The Minister is therefore likely to have had knowledge of a number of aspects of the matter and the issues which had arisen, as to which see: Carrascalao at [62]. Given the timing of the two decisions and the fact that the material was essentially the same, I give more weight to this consideration than the Full Court did on the different facts in Carrascalao.
81 I accept that 79 minutes elapsed from the time the Minister was informed that the consent orders had been made until the time the decision was made. It does not follow from this that the Minister only had 79 minutes to consider the merits of the decision. The Minister’s office was in possession of the materials which the Minister ultimately considered in making the decision some days in advance and, as I have said, had already considered much of that material on an earlier occasion. I do not infer that the Minister gave no consideration to the merits until he was informed that the prior decision had been set aside by consent.
82 The applicant submitted that the Minister gave no consideration to two arguments articulated in the previous judicial review application, being the failure to take account of the earlier delegate findings and the making of findings with no evidence. The applicant observed that the Minister’s reasoning in that respect was almost entirely identical to the earlier decision. The applicant repeated for the purposes of Ground 4 that the Minister chose not consider the new material submitted on behalf of the applicant. It was submitted that these matters, individually or in combination, justified the conclusion that the Minister did not give “proper, genuine and realistic” consideration to the merits of the case.
83 The Minister submitted that these matters did not point to a failure to engage with the material that the Minister had before him. The Minister’s concession of error in respect of the earlier decision was limited to the manner in which the Minister had understood the operation of s 197C in light of a mistaken belief about the status of the applicant’s withdrawn protection visa application. The Minister made no other concession and the Court made no decision about the other asserted errors.
84 The fact that parts of the Minister’s decision of 19 October 2021 reflect the Minister’s views expressed in his earlier decision does not establish a failure to engage with the material and is unsurprising. There were extensive changes to those parts of the reasons which concerned the admitted error in approach. It may well be that the Minister was engaging in a more detailed way with those aspects of his decision which he considered had been erroneous. I do not take from this that the Minister failed to consider the merits as a whole. The Minister was entitled to consider the merits of the matter before him having regard to the fact that he had examined the material on an earlier occasion and so had familiarity with a number of the issues. As has been observed earlier, the Minister was also entitled, in this statutory context, not to consider the new material, a decision I conclude was taken after considering whether to consider that new material.
85 The applicant has not discharged the onus of establishing that the Minister did not engage with the material before him or engaged with it in such an inadequate was as to amount to a failure to exercise jurisdiction or an unlawful exercise of jurisdiction by not assessing the merits.
86 It follows that Ground 4 is not made out.
FURTHER AMENDED ORIGINATING APPLICATION
87 At the hearing on 30 June 2022, the applicant applied (for the sake of abundant caution) to further amend the amended originating application. The Minister was not in a position to consent or oppose reliance on the proposed further amended originating application. Subsequently, the Minister informed the applicant that there was no opposition to leave being granted to rely on it. Leave is granted and the reasons set out above proceed on the basis of the further amended originating application.
APPLICATION MADE ON 6 SEPTEMBER 2022
88 It remains to mention that the Minister, exercising liberty to apply, had the matter relisted on 6 September 2022 whereupon the Minister, without the courtesy of notifying the Court in advance as to the reasons for exercising the liberty, applied for leave to reopen. This was said to be for the purpose of adducing evidence related to one of the amendments to the further amended originating application. The possibility of this being necessary had been reserved at the hearing, hence the reservation of liberty to apply.
89 In one of the more bizarre applications made to the Court, the Minister refused to identify the evidence which he wanted to adduce if leave were granted to reopen, stating that it “shed a little bit of light” on the question of whether the Minister engaged with the question of whether to consider the new material.
90 The Minister’s position was that he would not show the evidence he would adduce if leave were granted, either to the applicant or to the Court, unless leave to adduce the evidence was first granted. This unsatisfactory application was dismissed with costs, without prejudice to the Minister bringing a proper application for leave to reopen. No such application was made.
CONCLUSION
91 The application must be dismissed with costs.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley. |
Associate:
