Federal Court of Australia

Young (by his litigation representative Price) v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 292

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00 pm AWST on Thursday 20 April 2023 the parties must provide to the Chambers of Justice Jackson:

(a)    a minute of consent orders to be made consequent on the reasons published on 6 April 2023 or, if they cannot reach agreement, separate minutes; and

(b)    a written submission of no more than four pages in length in support or, if they cannot reach agreement, separate written submissions of no more than four pages in length.

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

REASONS FOR JUDGMENT

JACKSON J:

Preface

1    These reasons were listed for delivery on the morning of 3 April 2023. On that morning, the parties advised my Chambers that the applicant had passed away in March 2023. His legal representatives asked me to deliver judgment notwithstanding, and the Minister had no objection. As will be seen, I had determined to allow the applications for extension of time and judicial review. But the applicant's death raises questions as to whether the Court still has the power to allow the application, and whether it is appropriate that it do so. I therefore postponed judgment delivery until 6 April 2023. On 5 April 2023, my Chambers received evidence of the applicant's death, which occurred on 8 March 2023 (the day before the hearing of the application).

2    I have decided that the appropriate course is to publish the below reasons, for the most part without alteration from the version that was to be published on 3 April 2023 before the news of the applicant's passing came to me. But rather than pronounce the orders that I had intended to make, I will require the parties to indicate (preferably by consent) what orders are appropriate in the changed circumstances, together with brief written submissions. Apart from the questions raised in the preceding paragraph, the submissions should address, at least, the issue of futility which obviously arises in respect of any proposal to remit the matter to the Minister, as well as what costs orders, if any, are appropriate.

Introduction

3    The applicant, Michael Ranson, is an 85-year-old man. He came to Australia from the United Kingdom in 1950 at the age of 12. He has lived here since that time, but he never obtained citizenship.

4    In the mid-1990s Mr Ranson committed serious sexual offences against two children. He was convicted of those offences in 2017 and sentenced to a total effective term of 6 years' imprisonment. On 18 March 2021 a delegate of the respondent (Minister) cancelled Mr Ranson's visa, as was mandatory under s 501(3A) of the Migration Act 1958 (Cth). By that time, the Western Australian State Administrative Tribunal (SAT) had appointed Mr Ranson's daughter, Melissa Ranson, as plenary administrator of his estate and his limited guardian. It did so on the ground of mental disability. On 25 March 2021, Ms Ranson made representations on behalf of her father to the Minister as to why the cancellation of the visa should be revoked. On 6 July 2021 the Minister, acting personally, decided not to revoke the cancellation of the visa.

5    On 11 July 2022 another daughter of Mr Ranson, Jodie Price, applied to this Court for an extension of time within which to apply for judicial review of the Minister's decision. With the agreement of counsel on both sides, I heard the application for an extension of time and full argument on the merits of the judicial review application at the same time, and indicated that if I granted leave I would go on to determine the substantive merits of the application for judicial review.

6    Mr Ranson is in a poor state of mental and physical health. It appears that his condition has declined significantly since he was sentenced to prison. Administrators and guardians have been appointed to manage his affairs because of progressive dementia. He has also suffered two heart attacks (albeit before his convictions) and two strokes, and is in a wheelchair. He suffers from a range of other physical ailments. He is currently confined to a secure dementia ward. The issues that arise on the substantive merits of the matter concern the Minister's treatment of this deterioration in Mr Ranson's mental and physical health. Ms Price, who is Mr Ranson's litigation representative, contends that the Minister's treatment of these matters was illogical or unreasonable and lacked a probative basis and that the Minister failed to give proper, genuine and realistic consideration to the material before him in relation to the issue.

7    For the following reasons, I have determined that it is appropriate to grant an extension of time and to allow the application for judicial review.

Background of offending and mental and physical decline

8    The name on the applicant's birth certificate is Michael John Ranson and it appears that he has always called himself by that name, as does his family. However it seems that by the time of his arrival to Australia he bore the same surname as his stepfather, namely Young, and that is what the Minister has called him. Since it appears that his preferred surname is Ranson, I will use that name in this judgment.

9    The offending which led to Mr Ranson's imprisonment occurred between 1994 and 1996. The victims were two of his step-nieces. The offending against one of the victims occurred when she was between 7 and 9 years old and was living in the same house as Mr Ranson. The offences included sexual penetration. The other victim was 16 years old at the time of the offending and had an intellectual disability. Mr Ranson had sexual intercourse with her repeatedly, during a time when she was under his care and living in the same house. When a search warrant was executed at Mr Ranson's house some 25 years later, pornographic photographs he had taken of that victim were still in his possession, and he was convicted of possession of child exploitation material as well as the other offences.

10    The sentencing judge described the offences as:

very serious for reasons I will outline under the circumstances of aggravation, including that the offending was sustained, persistent and ongoing and involved a gross breach of trust and authority, and given that both victims were incredibly vulnerable.

There was no dispute about the accuracy of that description in this proceeding.

11    The sentencing judge also made the following remarks that are presently relevant:

Now, in your case although you are close to 80, as I've said, there are no acute health concerns. You do have lung issues and you have had two heart attacks. You are a fairly spritely man for almost 80, but I certainly accept that your health will decline during the time that you're in prison.

12    His Honour also found on the basis of a psychological report that Mr Ranson posed a 'very low risk of sexual reoffending, which reduces the need for personal deterrence, although not general deterrence'.

13    There was material before the Minister that after being sentenced, Mr Ranson's mental and physical health deteriorated. The material evidenced the following:

(1)    In January 2020 Mr Ranson spent five days in Fiona Stanley Hospital because of a right-side cerebrovascular accident (CVA, i.e. stroke) and carotid artery stenosis (narrowing). He was alert and able to follow commands and noted at that time as being usually independent.

(2)    In January and February 2020 Mr Ranson spent 17 days in Fremantle Hospital. The principal diagnosis according to the discharge summary was another right-side CVA with cognitive decline noted. The history of this was summarised as including four years of cognitive decline before his incarceration and including episodic memory loss. He was referred for a formal cognitive assessment but it is not clear whether that was conducted, as no results of it were in evidence. At that time, Mr Ranson was noted as being 'independent with all transfers and ambulating nil aid', albeit at high risk for falls with 'reduced recall, reduced executive function and … difficulty understanding complex instructions'.

(3)    In March to April 2020 Mr Ranson spent 20 days in Fiona Stanley Hospital. According to the discharge summary, it seems he was admitted via emergency with acute confusion, although he had independent mobility. The principal diagnosis was zoster encephalitis, being inflammation of the brain as a result of shingles, from which he appears to suffer. He was drowsy and mildly confused although apparently responded appropriately to simple questions and one-step commands. A deterioration in mobility and cognitive state was noted. While previously independent, the recommendation was that he now required assistance and was not suitable for discharge back to prison at that time. A list of conditions noted in his medical history included CVA, cognitive decline, cholecystitis (inflamed gall bladder), ischaemic heart disease and chronic obstructive pulmonary disease.

(4)    In April 2020 Mr Ranson spent another 16 days in Fremantle Hospital. The principal diagnosis was encephalitis with a comorbid CVA. A '[f]unctional and cognitive decline' was characterised by '[f]luctuating drowsiness and reduced mobility'. A note also said, 'Michael displays variable attention on a daily basis which is determined to be his baseline. Often, with encouragement and persistent engagement Michael becomes rousable at these times.' He had 'limited verbal output in sessions. Communication impacted on by fluctuating levels of alertness and cognition. Limited engagement within sessions when attempting to communicate with Michael (i.e. [patient] often closing eyes)'. His medical history was recorded as including aspiration pneumonia and cirrhosis of the liver, as well as the conditions already noted. A speech pathologist noted that he was having difficulty swallowing and recommended that he receive thin fluids only and a soft diet. It appears that he continues on that regimen to minimise choking risk.

(5)    On 29 July 2020, SAT declared that Mr Ranson was:

(a)    unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;

(b)    in need of an administrator of his estate;

(c)    incapable of looking after his own health and safety;

(d)    unable to make reasonable judgments in respect of matters relating to his person;

(e)    in need of oversight, care or control in the interests of his own health and safety; and

(f)    in need of a guardian.

SAT therefore appointed Ms Ranson as plenary administrator of Mr Ranson's estate and limited guardian with the functions of deciding where he lived and with whom, to make treatment decisions for him, and to determine the services to which he should have access.

14    This marked decline in Mr Ranson's mental and physical condition since his incarceration is relevant to his proposed application for judicial review, but also to his application for an extension of time, to which I now turn.

The application for an extension of time

15    The time limit with which Mr Ranson's application has not complied, and the Court's power to extend it, are found in s 477A of the Migration Act. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 the High Court laid down the principles concerning applications to extend time under that section. It is convenient to repeat the summary I recently gave in Fuller v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 65 at [10]:

The Court has power to grant an extension of time under s 477A of the Migration Act if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and if the Court is satisfied that it is necessary in the interests of the administration of justice to do so: s 477A(2). On its face, the power is unfettered save, in substance, by the requirement for the Court to form that state of satisfaction. The interests of the administration of justice comprise the sole mandatory relevant consideration: see [Katoa] at [11]-[12] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [35], [39], [62] (Gordon, Edelman and Steward JJ). The requirement that an extension of time be 'necessary in the interests of the administration of justice' is 'deliberately broad', as is the discretion that the provision confers: Katoa at [36], [39]-[40]. The two judgments in Katoa each gave a similar, evidently non-exclusive list of matters to which the Court may have regard:

… the length of the applicant's delay, the reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.

(Kiefel CJ, Gageler, Keane and Gleeson JJ at [12])

and

… the length of the delay; the explanation for the delay; any prejudice to the administration of justice as a result of the delay; and the prospects of the applicant succeeding in the application or the 'strength or weakness of the case … sought to be advanced and the utility of advancing that case'.

(Gordon, Edelman and Steward JJ at [40], footnotes removed)

16    There is no doubt that the length of the delay here is substantial. Under s 477A(1) of the Migration Act, the application was required to have been made within 35 days of the decision, that is, by 10 August 2021. It was in fact made just over a year after the decision and so 11 months late. However the Minister did not point to any prejudice as a result of the delay, although he did submit, correctly, that an absence of prejudice is not sufficient by itself to justify granting an extension of time.

17    An explanation for the delay appears in an affidavit of Ms Price sworn on 11 July 2022. Ms Price says that while Ms Ranson has been appointed administrator and limited guardian for Mr Ranson, that did not authorise her to initiate legal proceedings on Mr Ranson's behalf. Ms Ranson and Ms Price therefore had to seek a further order from SAT which was made on 21 September 2021. It revoked the former guardianship order and in its place appointed Ms Price as Mr Ranson's limited guardian with authority that included the power to commence legal proceedings as Mr Ranson's next friend.

18    According to Ms Price, she and Ms Ranson then sought legal assistance to file the necessary application, but the (unnamed) lawyer who assisted them was 'very unwell at the time', and it turned out that the documents she had drafted were incorrect. Ms Price did not understand why the Court could not accept the documents and she says she subsequently had difficulty in getting a complete copy of the Minister's decision, which had been sent to Ms Ranson. Ms Price is dyslexic, which makes it difficult to deal with the documentation herself. Ms Price also says that in about December 2021 Mr Ranson was moved to a secure dementia care facility and that her mother passed away last year. This caused stress and grief which, combined with the impact of the COVID-19 pandemic, made it difficult for Ms Price, who lives in Melbourne, to travel to Perth to lodge the application.

19    The Minister did not challenge any of this evidence, but he did criticise it as providing an inadequate explanation because of a lack of specificity. Certainly the evidence is given at a high level of generality; dates and names and other details are lacking that might enable the Court to gain a full picture of the reasons for the delay.

20    Nevertheless, I consider that there are two strong factors which compel the grant of an extension of time. First, as will be seen from the balance of this judgment, there is merit in the application for judicial review. Second, and relatedly, there is the bleak outcome that Mr Ranson will face if he is unable to challenge the decision. While many applicants for judicial review of s 501CA decisions face very unfavourable circumstances if they do not succeed, in Mr Ranson's case it is particularly acute. He is an 85-year-old man, who is very unwell and likely to be mentally incapable of understanding what is happening to him, and mentally and physically incapable of looking after his own interests if he were to arrive in the United Kingdom. In his decision the Minister described without demur a submission from a family member that Mr Ranson's dementia 'would result in his bewilderment if removed'. Mr Ranson has lived in Australia for the last 70 years, and the Minister found that Mr Ranson has no contact with friends or family members who may live in the United Kingdom. The Minister also found that Mr Ranson would 'face significant practical, financial and emotional hardship upon a return to United Kingdom, due to his age, lack of family and social support and lack of medical and economic support' (para 53).

21    In my view those two matters, combined, give rise to a serious risk of injustice if those consequences were to be visited on a frail, elderly man as a result of a decision that lacked lawful authority. So although the delay is long and the explanation for it could be clearer, in the circumstances of this particular case it is necessary in the interests of the administration of justice to extend the time for making the application.

The grounds of review

22    There are three grounds of review. The first is that the Minister's decision was affected by jurisdictional error because it was illogical and unreasonable. In broad terms, the illogicality and unreasonableness are said to have arisen because the Minister decided that Mr Ranson presented an unacceptable risk of harm to the Australian community, because the Minister could not rule out the possibility that he might reoffend, notwithstanding the mental incapacity and physical afflictions described above, including Mr Ranson's need for a wheelchair. Mr Ranson contends that based on all the evidence before the Minister, there was no justifiable basis for him to conclude that an 84-year-old person (as Mr Ranson was at the time of the decision) in Mr Ranson's state of health was capable of sexually offending against a child.

23    The second ground of review is that there was no probative basis for the Minister's findings that Mr Ranson would be capable of committing a sexual offence in the future and that he lacked remorse. In this ground, Mr Ranson contends that the Minister placed significant weight on Mr Ranson's lack of remorse, even though he is now mentally incapable of demonstrating insight or understanding about his past behaviour. This ground also asserts that the evidence before the Minister indicated that Mr Ranson 'is cognitively, practically and physically incapable of sexually offending against a child'. Once again, this relies on the material about Mr Ranson's mental incapacity and physical afflictions that has been set out above.

24    The third ground of review is that the Minister failed to give proper, genuine and realistic consideration to the material before him regarding Mr Ranson's risk of reoffending. Again, in broad terms this relies on the material about Mr Ranson's mental incapacity and physical condition that has been set out.

25    Each of the grounds depends in part on the representations that were made to the Minister and, of course, on the way the Minister reasoned in the decision. So it is convenient to set those matters out before turning to consider the grounds.

The representations made

26    As has been said, Ms Ranson made representations to the Minister on Mr Ranson's behalf. Annexed to the form requesting revocation of the mandatory visa cancellation was a document headed 'PART A - Reasons for requesting revocation' which commenced by saying:

Due to Michael John Ranson's ill health and progressive dementia and cognitive decline he is unable to fill in this application. I Melissa Ranson his daughter of 49 years is putting this request in due to Michael's ill health and progressive dementia as you will see in the Medical records I have submitted from Fiona Stanley and Fremantle Hospital. They have outlined his diagnosis.

That refers to the medical records summarised above.

27    After giving a biography of Mr Ranson and referring to the family's wish that Mr Ranson could stay in Australia, 'the only home he has known for 72 years', the 'Part A' document said (typographical errors corrected):

He was 79 years when sentenced, so the last 4 years have taken their toll. Since being in jail he has had two strokes and shingles which attacked his brain. He now lives his life in the infirmary in jail as this is the type of fulltime care he requires. He cannot be left to look after himself. He is now wheelchair bound. He needs personal hygiene support toileting, showering and dressing himself. I am a qualified social trainer and have worked with intellectual/physical disabilities dementia and Alzheimers as well as mental health. Once … Michael is released, I will be his fulltime carer. He will be living under my roof and I have all the necessary equipment and aids for his needs.

28    And over the page:

Due to Michaels progressive dementia stated by Doctor Jacob Nazarian of casuarina prison, I believe Michael is of no risk to the wider community, as I will be his fulltime carer and he will have full supervision by myself 24 hours a day seven days a week. At no time will he be left on his own due to his declining illness.

In conclusion Michael is in no way able to cope mentally physically and emotionally if he was to be taken out of a country he has known as his home for 72 years. He has no family or friends in England that can take care of his medical conditions and has no where to live. I believe that Michael does not have long to live due to his health conditions. So, I am asking you on compassionate grounds to reconsider your decision on cancelling his visa and please allow my father Michael to stay here in Australia where he can die with his family by his side.

No report of Dr Nazarian or other evidence of his diagnosis of progressive dementia was in evidence.

29    Other representations by Ms Ranson were in a 'Personal Circumstances Form' also dated 25 March 2021 that was before the Minister. They included the following statement in response to a prompt to 'Provide information on what you believe to be the risk of you offending in the future, and your supporting reasons':

There is no risk of Michael reoffending due to his health and dementia and his fulltime supervision that he needs.

30    The form also listed the medical conditions that have been noted in the summary given above, and in addition to those: hypercholesterolaemia; hypertension; asthma; renal impairment; chronic kidney disease and duodenal ulcer. In a part of the form asking about concerns if he were to return to his country of citizenship, Ms Ranson said 'Due to Michael's chronic asthma and health conditions and covid 19 running [rampant] in England Michael would be dead in weeks.' It later also asked the decision maker to consider 'Michael is a very unwell man and is close to death and would like to die in the only home he has known with his family around him'.

31    Ms Ranson made a further representation by way of an email dated 7 May 2021 to the Department, which was also before the Minister. The body of the email is as follows:

I am writing today to ask if you have made a decision on our request of a revocation of Michael John YOUNG/RANSON visa, it is nearing to his parole/ release date which is 27th May 2021, my fear is that he will be placed in centre that does not have the facilities to care for my father with all his elements [ailments] the most important one being Dementia and unable to shower and dress on his own he is also on a special minced moist or soft diet due to choking hazard as stated by the speech therapist.

Also as to address the change in Direction 79/90 I firmly believe Michael John Ranson/Young has never posed a violent threat to anybody and most definitely does not now with his medical condition if anything he is vulnerable.

Also I believe my father Michael John Ranson/Young does not have long on this earth I firmly believe his soul is waiting to be back at home with myself so I can take care of him he can then die peacefully at home with his family who loves him dearly.

I'm asking you Please let me bring my father home. Please the last four and a half years have been hell on earth for me, and for my sons who were unable to visit him and miss him dearly, Please let my dad and my sons Grandad come home.

As Michael is declining in mental health ie Dementia I had to fill out all forms I have attached: Guardianship and Power Of Attorney forms that have been witnessed by a JP.

The Minister's reasons

32    The Minister determined, of course, that Mr Ranson did not pass the character test as defined by s 501 of the Migration Act, and so proceeded to consider under s 501CA(4)(b)(i) whether there was 'another reason' to revoke the cancellation decision. He did so under headings that are familiar from the mandatory directions made under s 499 of the Migration Act to guide other decision makers although, since they do not bind the Minister, there was no need for him to refer specifically to the current direction.

33    The Minister commenced by having regard to the protection of the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. He detailed the nature of Mr Ranson's offending against the two children and determined that it was very serious. There is no challenge to that characterisation.

34    The Minister thus considered that any future offending of a similar kind would 'have the potential to cause physical and psychological injury to members of the Australian community'. He noted the physical pain and psychological effects of the offending on the young victims. The Minister then said (para 20): 'In assessing the risk of Mr [Ranson] reoffending in the future, I have considered factors that may assist to explain Mr [Ranson]'s past conduct, as well as his more recent conduct, remorse and rehabilitation'.

35    Under the heading 'Factors contributing to past conduct', the Minister considered Mr Ranson's difficult upbringing. But apparently on the basis of the remarks of the sentencing judge, he found that 'the driver of Mr [Ranson]'s offending was sexual gratification' and did not accept Mr Ranson's 'justifications', which appears to be a reference to the information about his upbringing.

36    The Minister then went on to consider 'remorse and rehabilitation'. He made the following observations, all on the basis of the sentencing remarks:

(1)    Mr Ranson had blamed one of the victims for the offending, saw nothing wrong with the photographs he had kept of the other victim, was unwilling to proceed with treatment or intervention and had shown no remorse. The pre-sentence psychological report had found that Mr Ranson had 'attempted to deny, rationalise, justify, minimise and externalise blame' for his actions.

(2)    The same report found that due to his age and time since the offending, Mr Ranson posed a very low risk of reoffending.

(3)    The Minister acknowledged that Mr Ranson had spent a considerable period of time in the community after the offending with no convictions for any further offences, but was concerned that he had kept 'a photographic souvenir of his offending for some 25 years after the events' (para 30).

37    The Minister thus found that Mr Ranson 'has limited insight or remorse into his offending, a view which is reinforced by his plea of not guilty despite his admissions to police of repeated sexual contact with a child under the age of ten' (para 31).

38    The following four paragraphs, under the next heading 'Other considerations' are important and need to be set out in full (bolding in original):

32.    During the sentencing remarks reference was made to Mr [Ranson]'s health and age. I note that Mr [Ranson] had already suffered two heart attacks and been diagnosed with asthma prior to his imprisonment. A pre-sentence assessment did not identify any cognitive issues. Since his imprisonment Mr [Ranson]'s health has deteriorated and he has suffered two strokes and been diagnosed with dementia. Mr [Ranson] resided in the prison infirmary, requires a wheelchair and assistance with self-care and has shown progressive cognitive decline. As a result of his health issues and mental disability Mr [Ranson]'s daughter, Ms Melissa Ranson, has been appointed as his legal guardian and been granted power of attorney Attachments B, D, F, G and I.

33.    Ms Ranson states that if Mr [Ranson]'s visa cancellation is revoked he will be released to her care where he will be under 24-hour supervision due to his medical needs. Ms Ranson states that Mr [Ranson] will be no risk to the community due to his health issues, dementia and the presence of full time supervision. Ms Ranson and other family members have asked that Mr [Ranson]'s visa cancellation be revoked so that he can spend his remaining life with his extended family including, sister, children, grandchildren and minor grandchildren Attachments D, E and H- R.

34.    I note that the Judge stated that a number of character references were received from Mr [Ranson]'s family which proclaimed his innocence and stated the complainants lied. These statements of Mr [Ranson]'s innocence have also been made to the Department by family members including Ms Ranson, Mr [Ranson]'s guardian and proposed carer. These claims of Mr [Ranson]'s innocence are maintained despite Mr [Ranson] possessing photos of one victim in sexual poses, making admissions to police of sexual contact with a child in his care and the findings of the jury. While I acknowledge that it can be difficult to accept that a loved one has committed sexual offences against children I find this denial from family members can reduce the protective factor to the community of family support Attachments B, K, L, M, N and Q.

Conclusion on risk to community

35.    I have found that the nature of Mr [Ranson]'s conduct is very serious. I have further found that sexual penetration of a child under 13 has the potential to cause physical and psychological injury to members of the Australian community. On balance I consider there remains a low risk that Mr [Ranson] will reoffend. I consider that, should Mr [Ranson] engage in similar conduct again it may result in psychological and physical harm to members of the community. Despite the low risk of Mr [Ranson] reoffending I cannot discount the significant harm caused to victims and the community by sexual offences against children. I have given this weight in favour of non-revocation and find that any risk of reoffending is unacceptable given the very serious nature of Mr [Ranson]'s offending.

39    The attachments referred to at paragraph 32 were: the sentencing remarks; the request for revocation form that had been completed by Ms Ranson; the first SAT decision of July 2020; an enduring power of attorney; and the medical discharge records summarised above.

40    The Minister then went on to consider a number of different matters, under the headings 'Best interests of minor children', 'Expectations of the Australian community', 'Extent of impediments if removed to United Kingdom' and 'Links to the Australian community'.

41    In the course of discussing the expectations of the Australian community, the Minister appeared to accept a submission that Mr Ranson's health issues will most likely cause him to die in a relatively short time. The Minister found, however, that the very serious nature of the offending outweighed the low risk of reoffending.

42    In the course of considering the impediments that Mr Ranson would face if removed to the United Kingdom the Minister found, under the heading 'Age and health' (para 49):

49.    Mr [Ranson] is aged 83 and has health issues including but not limited to: dementia, zoster encephalitis, shingles, aspiration pneumonia, cirrhosis of the liver, asthma, ischaemic kidney disease, carotid artery stenosis and chronic kidney disease. Mr [Ranson] has also suffered two strokes and two heart attacks. As a result of his health issues Mr [Ranson] resided in the prison infirmary as he is reliant on a wheelchair, needs assistance with self-care and is prescribed a soft food diet to minimise choking. Mr [Ranson]'s dementia has resulted in a guardianship order as he was assessed as unable to make responsible decisions by reason [of] mental infirmity. Attachments E and I [i.e. Personal Circumstances Form and medical discharge records]

50.    Mr [Ranson]'s family submit that any removal from Australia will greatly impact Mr [Ranson] because of his health needs. Ms Helen Ranson states Mr [Ranson] may not survive the flight, Ms Danielle Lim states Mr [Ranson]'s dementia would result in his bewilderment if removed and Ms Melissa Ranson submits that with no money, support or place to live Mr [Ranson] would be susceptible to COVID19 and a shortened life span Attachments E, P and Q.

43    The Minister later noted that Mr Ranson's 'increasing health needs have impacted on his ability to advocate for himself and this will be exacerbated by his lack of familiarity with the United Kingdom' (para 51) and that his 'illnesses impact upon his ability to engage services or advocate for appropriate care' (para 52). The Minister thus found (para 53) that Mr Ranson 'will face significant practical, financial and emotional hardship upon a return to United Kingdom, due to his age, lack of family and social support and lack of medical and economic support'.

44    Under the heading of links to the Australian community, the Minister noted with seeming acceptance a submission that Mr Ranson struggled to remember his family due to his cognitive decline.

45    The Minister then reached the conclusion that he was not satisfied that there was another reason to revoke the cancellation of the visa, as follows:

62.    In considering, whether I was satisfied that there is another reason why the decision to cancel Mr [Ranson]'s visa should be revoked, I have considered that the best interests of Mr [Ranson]'s minor great grandchildren, as a primary consideration, weigh in favour of revocation.

63.    In addition, I have found that a number of other factors also weigh in favour of a decision to revoke. These include best interests of minor children in Australia; strength, nature and ties to Australia and impediments to return. I accept that Mr [Ranson]'s health issues and lack of supports in the United Kingdom weigh significantly in favour of revocation.

64.    However, I have also given significant weight to the very serious nature of the crimes committed, that being, intra-familial sexual abuse against vulnerable children and Mr [Ranson]'s lack of remorse. I have also considered the expectations of the Australian community that offending such as Mr [Ranson]'s is so serious that no level of risk that it will be repeated is acceptable.

65.    I consider that where great harm could be inflicted on the Australian community even strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of risk of reoffending by Mr [Ranson], than I otherwise would because he has lived in Australia for most of his life from a young age.

66.    On balance, I find that the factors that weigh against revocation of Mr [Ranson]'s visa cancellation outweigh the factors in favour of revocation. Therefore, I am not satisfied that there is another reason why the decision to cancel Mr [Ranson]'s Absorbed person visa should be revoked, as required by s501CA(4)(b)(ii) of the Act.

Ground 1 - illogicality and unreasonableness

46    Ground 1 relies on what is contended to be the illogicality and unreasonableness of the Minister's decision. This is said to lie in the fact that the Minister decided that Mr Ranson represented an unacceptable risk of harm to the Australian community in the face of the evidence about his dementia and medical conditions. Mr Ranson contends that based on all the evidence before the Minister, there was 'no justifiable basis' to conclude that an 84-year-old person in Mr Ranson's state of health 'is capable of sexually offending against a child'.

The parties' submissions

47    In Mr Ranson's submissions, ground 1 was developed into an argument that the Minister's 'inference' that Mr Ranson might reoffend in a similar way was not logically open to him. Mr Ranson submits that the Minister's finding as to risk of harm was not logical because it was based on an opinion about the likelihood of a person reoffending in the future based on past conduct, where the physical abilities of the person have since significantly changed. Mr Ranson submits (written submissions, para 28) that:

There is no reasoning by the Respondent as to why the past conduct may be repeated many years later in entirely different circumstances, especially after making express findings as to the significant changes in the Applicant's physical and mental health since he offended in the 1990s.

48    In oral submissions, senior counsel for Mr Ranson said that the Minister did not grapple with the serious decline in Mr Ranson's capacity to reoffend in any way. Senior counsel submits that the Minister simply reverted to the assessment of risk given by the sentencing judge and the pre-sentencing report in 2017.

49    The Minister meets these submissions by making three main points. First, he emphasises the high threshold that must be cleared if illogicality and unreasonableness are to be made out. Second, according to the Minister, what must be shown is that the decision is one that no logical or rational decision maker could come to. Third, he says that the evidence did not compel the conclusion that Mr Ranson was incapable of offending further.

50    In other words, according to the Minister's submissions, there was room on the material to rationally conclude that there was still a low risk of reoffending. According to what the Minister puts now in this Court, even though Mr Ranson suffers dementia and lacks the ability to make decisions in his own interests, he has a recognised sexual deviance and might still abuse a child. There was no material before the Minister positively indicating that Mr Ranson is now cognitively unable to do so. Similarly, according to the Minister, the fact that Mr Ranson is in a wheelchair does not necessarily prevent him from sexually abusing a child. He might still retain sufficient physical ability to do so. Counsel for the Minister also referred to the reasoning in the decision that Ms Ranson's proposed supervision of Mr Ranson might not be a sufficiently protective factor in view of her and her family's denial of his offending. The Minister sought to characterise ground 1 as inviting impermissible merits review.

Consideration of ground 1

51    It is an implied condition of the grant of almost any statutory power that it will be exercised reasonably, and an aspect of that requirement is that it be exercised rationally or logically, at least in the sense explained by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [123]-[130]. It is not easy to establish that a decision maker has failed to observe those conditions: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [33] (Allsop CJ, Besanko and O'Callaghan JJ). The Full Court in Djokovic described the task of the Court in such cases as follows (at [34]-[35]):

The task in assessing illogicality is not an exercise in logical dialectic. 'Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case': [SZMDS] at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in [Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1] at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20-21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

52    The correct approach is to ask whether it was open to the Minister to ‘engage in the process of reasoning in which [he] did engage and to make the findings [he] did make on the material before [him]': SZMDS at [133]. In that case, at [130], Crennan and Bell JJ comment that an allegation of illogicality or irrationality which provides a distinct basis for seeking judicial review of a decision as to a jurisdictional fact is 'an allegation of the same order as a complaint that a decision is … "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'. A decision that is illogical in this sense will therefore be one that is unreasonable, as no reasonable person could have reached that decision on the same material.

53    In this case, the issue of Mr Ranson's ability to reoffend was crucial to the Minister's consideration of whether there was another reason why the cancellation of the visa should be revoked. The Minister was focussed on whether Mr Ranson represented an unacceptable risk to the Australian community. In view of the Minister's assessment of the crimes as being very serious, and as having caused serious physical and psychological damage to the victims, the Minister considered that any risk of reoffending was unacceptable. Plainly, he put significant weight on his assessment of the level of risk. His finding that Mr Ranson had shown limited remorse and insight into his offending dispensed with those matters as possible protective factors. So although the Minister acknowledged countervailing considerations, none were sufficient to displace the Minister's view that the risk of Mr Ranson reoffending meant that his visa should be cancelled.

54    With that in mind, the following observations about the approach and reasoning process of the Minister can be made:

(1)    At paragraph 32 of the Minister's statement of reasons, set out above, the Minister gives a summary of Mr Ranson's physical and mental decline.

(2)    At paragraph 33 the Minister acknowledges a representation that was based on Mr Ranson's 'health issues, dementia and the presence of full time supervision'.

(3)    The Minister then, at paragraph 34, articulates quite fully his consideration of the significance of the full time supervision which Ms Ranson proposed she would provide. He explicitly finds that the denial of Mr Ranson's offending by family members, including Ms Ranson, reduces the protective factor of family support. But there is no articulation at all of the significance of the health issues and dementia, or their lack of significance, had that been the view of the Minister. So the view he took about that central point, Mr Ranson's physical and mental decline, is not stated, while his view about another related point, concerning the protective factor of family support, is.

(4)    The relevant conclusion in paragraph 35 is only 'On balance I consider there remains a low risk that Mr [Ranson] will reoffend.' As this implicitly acknowledges, this is the same level of risk that the sentencing judge found in 2017.

(5)    Under the heading 'Expectations of the Australian community' the Minister accepts that Mr Ranson will die soon. So it can be inferred that he did not disbelieve the evidence showing that his physical condition, at least, had deteriorated significantly. That is confirmed by the subsequent findings under the heading of 'Age and health' of the extent of Mr Ranson's infirmity and the Minister's acceptance of the significant hardship Mr Ranson will face on return to the United Kingdom.

(6)    In his conclusion the Minister accepted that Mr Ranson's 'health issues and lack of supports in the United Kingdom' weighed significantly in favour of revocation. This further indicates acceptance of the extent and seriousness of Mr Ranson's health issues, but apparently in the context of impediments on return. The conclusion otherwise contains no reference to Mr Ranson's capacity to reoffend.

55    There is thus a gap in the Minister's logic. The Minister appears to have accepted that Mr Ranson has suffered a significant decline in his mental and physical abilities, and that he will die soon. And yet, the Minister has concluded that the risk that Mr Ranson will reoffend is the same as it was in 2017, when his physical and mental condition was much better and, on the materials before the Minister, the sentencing judge had described him as 'a fairly spritely man for almost 80'.

56    The argument put by the Minister, as summarised above, emphasised the proposition that a rational and reasonable decision maker could have come to the view that there remained a low risk of reoffending. But in my view, with respect, the argument fails at two points. First, showing that the outcome of the decision is one at which no rational and reasonable decision maker could have arrived does not exhaust the circumstances in which an administrative decision might transgress the implied condition that it be made rationally and reasonably. Chief Justice Kiefel and Bell, Gageler and Keane JJ encapsulated other circumstances, in relation to reasonableness, in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [19] (quoting from Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [91]; and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290 respectively):

'[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made' such that '[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course'.

57    It will be noted that the Full Court's encapsulation in Djokovic at [35] of the standard to be applied encompasses the process as much as the outcome: 'it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material'. So here, if the decision of the Minister lacks plausible justification, the power under s 501CA(4) may not have been exercised properly.

58    The second point at which the Minister's argument fails is that where reasons are given for a decision, the plausible justification for the course of reasoning taken is to be found in those reasons. That appears from the following extract from Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ). After saying (at [46]) that the Minister in the appeal before them had put forward justifications for the decision under review which were not matters mentioned in the reasons for decision, their Honours said (at [47]):

This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The 'intelligible justification' must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

59    While this view is expressed in terms of an inclination, the passage has been adopted and approved by subsequent Full Courts: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at [57]; Vo v Minister for Home Affairs [2019] FCAFC 108; (2019) 269 FCR 566 at [43(2)]; CKL21 v Minister for Home Affairs [2022] FCAFC 70 at [64].

60    The difficulty for the Minister here is that he too finds himself in the position of supplying justifications for his decision now, before the Court, that are absent in his stated reasons themselves. As said in Singh, if the Court were to supply those justifications now, it would be acting in the position of the decision maker. That would not be permissible.

61    I therefore conclude that ground 1 is made out. While it is possible to speculate as to reasons why the Minister might have reached the view that Mr Ranson remained at low risk of reoffending, those reasons are absent from his actual decision. And the intelligible path of reasoning that is there - a lack of confidence in the protective factor of constant supervision by Ms Ranson because of her denial of her father's offending - is insufficient to justify the decision that was made. That is because it does not take account of Mr Ranson's underlying ability or inability to offend by reason of his mental and physical ailments, even without constant supervision.

62    That is not a mere lapse in logic that has led to an error of fact made within jurisdiction. It is a fundamental gap in the Minister's reasoning on a point that, in the context of his decision as a whole, was of crucial importance to the outcome. As a result, when viewed in light of the reasons actually given, the decision was illogical and unreasonable.

63    The Minister is not correct to characterise this as impermissible merits review. The authorities recognise that inquiry into error of this kind will inevitably be fact dependant: Singh at [42]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [84] (Nettle and Gordon JJ). But it is not an inquiry into whether the decision was right or wrong; it is an inquiry into whether, in exercising the statutory power, the Minister has dealt logically and reasonably with the materials that have enlivened that power. Ground 1 is upheld.

Ground 2 - no probative basis and remorse

64    Ground 2 is put in terms that 'there was no probative basis for finding that the Applicant would be capable of committing a sexual offence again in the future and that the Applicant lacked remorse'. But it was unclear what place the Minister's treatment of Mr Ranson's lack of remorse had in the latter's case in this Court. The particulars to ground 2 make the point that, given Mr Ranson's cognitive decline, he is not now capable of demonstrating insight into or understanding of his past behaviour. But the Minister's findings about a lack of remorse concerned his lack of remorse at the time of his sentencing, as found by the sentencing judge. Senior counsel for Mr Ranson accepted that in oral submissions. Indeed he emphasised it, as demonstrating that the Minister was focussed on the position as at 2017 when Mr Ranson was sentenced and had not taken into account his subsequent decline.

65    I do not accept that the lack of remorse as at 2017 was irrelevant to the decision facing the Minister. It was open to the Minister to reason that, as a starting point, Mr Ranson had shown no remorse for his crimes, so that insight into his offending at the time of sentencing was not a protective factor. Whether this mattered at the time of the Minister's decision would then depend on what the Minister found about the effect of his subsequent cognitive decline. It is the lack of findings on that point which have led to error in the present case.

66    It is not, however, correct to characterise the error as a lack of a probative basis for the conclusion that Mr Ranson remained capable of committing a sexual offence. He was capable of doing so in the mid-90s and may well have remained capable of it at the time of sentencing. Whether he remained capable of it at the time of the Minister's decision depended on an assessment of the extent of his mental and physical decline. An assessment that Mr Ranson remained capable may have been open to the Minister on the material before him. The problem is that he does not appear to have made that assessment.

67    Mr Ranson's written submissions did not focus on the question of remorse but, rather, set out the findings the Minister had made about Mr Ranson's mental and physical condition, and submitted that they could not be rationally connected with a finding that he posed a low risk of reoffending. That is said to be because the Minister's findings about Mr Ranson's condition 'demonstrate that he is physically and mentally incapable of offending in a similar manner'. I do not accept that. Certainly they provide a basis on which a conclusion to that effect could have been reached, but as already discussed they also leave room to rationally reach a different view. The problem is that the Minister's reasons do not provide any plausible or logical justification for how he apparently reached that different view. Ground 2 has not been made out.

Ground 3 - the Minister's consideration of the risk of reoffending

Plaintiff M1 - principles as to how representations are to be considered

68    As has been said, Mr Ranson contends that the Minister 'failed to give proper, genuine and realistic consideration' to the material before him regarding Mr Ranson's risk of reoffending. A majority of the members of the High Court made observations about the use of that verbal formula in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Kiefel CJ, Keane J, Gordon J and Steward J, Gageler J agreeing). Their Honours did so in the course of considering the approach that decision makers under s 501CA(4) of the Migration Act should take to the representations that a non-citizen must make in order to enliven the revocation power under that provision. The relevant passage in full is as follows (footnotes removed):

Decision-makers' approach to representations

[22]    Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is 'another reason' why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is 'another reason' for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is 'another reason' for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

[23]    It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

[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 [(1995) 57 FCR 451 at 495], 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 [Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; see also 30, 71], '[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.

So, in accordance with well-established authority (Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [41]), while it is mandatory for the decision maker to consider the representations as a whole, not every statement made in the course of the representations must be considered, in the sense of deliberated over or made the subject of findings (see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14]-[15]). Rather, the representations must be read, identified, understood and evaluated. The decision maker must bring their mind to bear upon what has been put forward, and understand it. At that point, being conscious of what has been said by the person seeking revocation, the decision maker may determine which representations are important and are to be given weight and deliberated over and, at the other end of the spectrum, which are not important and need not be taken into account further.

69    It is not suggested that there is always a need to fully articulate this 'sifting' aspect of the decision maker's thought process in any reasons given, let alone a need to go further and make a finding about everything that the person seeking revocation has put forward. The main limits on that part of the process that are identified in Plaintiff M1/2021 are rationality and reasonableness. If the decision maker acts irrationally or unreasonably in discounting a representation, he or she will have gone outside the bounds of the statutory task.

70    Whether a matter cannot logically or reasonably be disregarded will depend on its place in the representations and more broadly in the materials before the decision maker, evaluated in the context of the statutory task. Consistently with established principle, it is not always required that the person seeking revocation expressly put a matter forward for it to be necessary to consider. If the claim arises clearly on the materials before the decision maker, that may be enough.

71    If a matter is expressly put or clearly arises, and cannot logically or reasonably be disregarded, then the decision maker will err if he or she ignores, overlooks or misunderstands it. It could be argued that avoiding those failings is not exhaustive of the requirements of the statutory task. Their Honours say in Plaintiff M1/2021 that they are given as examples. Also, the passage above arguably contemplates that in some cases, the Court will evaluate whether there was the 'requisite level of engagement' with a claim, that is, whether the decision maker has gone to the necessary 'degree of effort' in dealing with it. However in ECE21 v Minister for Home Affairs [2023] FCAFC 52 the Full Court (Mortimer, Colvin and O'Sullivan JJ) recently described the significance of Plaintiff M1/2021 as follows:

7    Having regard to what their Honours said in Plaintiff M1/2021, two aspects of the statutory task must be borne in mind for present purposes. The first aspect is that there is an important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand). What was emphasised by their Honours in Plaintiff M1/2021 was the width of the discretionary power conferred by s 501CA(4). The consequence is that it is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance. Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister's reasons, even a matter that was clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made.

8     Hence when it was said in Plaintiff M1/2021 that 'a decision-maker must read, identify, understand and evaluate the representations' (at [24]), noting that this does not extend to claims that are not clearly articulated or which do not clearly arise on the materials (at [25]), reference was being made to comprehending what was being advanced by the applicant. Similarly at [27] when it was said that relevant facts or materials or substantial and clearly articulated arguments must not be ignored or overlooked. In respect of both these propositions, the reasons of a decision-maker must demonstrate this has occurred. Accordingly, approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: at [26]. This, it seems, was the aspect of Full Court decisions of this Court, like Omar [Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589], that the High Court disagreed with.

9     The second aspect of the statutory task that it is necessary to bear in mind is that the weight to be afforded particular representations was a matter for the Minister: Plaintiff M1/2021 at [24]. That includes forming the view that the representation, or a matter arising from the representation, should be afforded no weight. Even so, the Minister must first understand the purport of the representations, facts and materials. If it is shown that the Minister proceeded without being consciously aware of the purport of the representations, facts and materials (and matters which clearly arise on the materials) and their possible significance, such that the Minister proceeded without a proper awareness and understanding of what was being put forward and therefore without a proper appreciation of the matters that might bear upon the decision to be made, then jurisdictional error may be demonstrated. On the reasoning in Plaintiff M1/2021, if the decision-maker lacks such an understanding, they will not be in a position for themselves to 'sift' what has been put to them, and attribute the weight they consider appropriate to various matters.

72    I will therefore proceed on the basis that it is necessary for the applicant to show that the Minister proceeded without a proper awareness and understanding of what was being put forward, and that if this is not shown, assessing whether he engaged with or considered the representations to 'the requisite degree' is outside the scope of this Court's function on judicial review. In doing so, however, I will bear in mind that neither Plaintiff M1/2021 nor ECE21 modify the large body of jurisprudence about how reasons for decisions are to be read, in order to determine whether any error of the kind canvassed in the above passages has been made. In particular, they do not engage with the issue of when a decision maker can be inferred to have overlooked or misunderstood a matter which has not been expressly discussed.

Application of principles

73    In the present case, these principles must be applied to the question of whether Mr Ranson had, since his sentencing, deteriorated mentally and physically to the extent that he no longer posed any risk of reoffending to the Australian community. The issue is whether the Minister was required to consider that question and, if so, whether he gave it the consideration required in order to discharge his statutory task.

74    Certainly, as the summary of the decision given above shows, the Minister adverted to the evidence about Mr Ranson's pre-imprisonment diagnoses and mental and physical decline since imprisonment, by summarising that evidence at paragraph 32 of his decision. But mere advertence may not be enough: see Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [46]. Here, there is nothing on the face of the decision to indicate that the Minister made any assessment of the evidence to which he referred in paragraph 32, or applied it to the matter at hand, namely: did those things mean that Mr Ranson no longer posed a risk? Instead, the Minister focussed on whether the constant care, and therefore supervision, which Mr Ranson would receive might eliminate the risk (at paras 33-34). The Minister appeared sceptical of that because Melissa Ranson, his proposed carer, was in denial of the offending.

75    That path of reasoning was open, and apparently led to the conclusion that the supervision would not eliminate the risk. But it did not address whether Mr Ranson remained capable of offending regardless of supervision. Rather, the Minister then went straight to the general conclusion (at para 35), that '[o]n balance' there remained 'a low risk' of reoffending. Nothing in the reasons indicates that the Minister factored Mr Ranson's asserted mental and physical infirmity into his assessment of the level of risk. And although the Minister assessed the risk as low, it is not clear on what basis this assessment was reached.

76    The framework of principle just discussed affords four relevant potential explanations for the absence of any express consideration, in this case, of how the evidence might have borne upon the question of Mr Ranson's ability to reoffend. The first is that the question did not arise on the material, including the representations made on Mr Ranson's behalf. The second is that it did arise but, after conducting the necessary evaluation of the representations described in Plaintiff M1/2021, the Minister decided that it was not of sufficient importance or weight to warrant further consideration. The third is that the Minister did apply the evidence to the question, but did not articulate that in the reasons. The last explanation is that the Minister overlooked, misunderstood or ignored the question.

77    In oral submissions counsel for the Minister put some emphasis on the first of these as a reason why the Minister did not deal with the question expressly. She submitted that the representations made about the risk of reoffending all concerned the asserted need to care for and supervise Mr Ranson full-time. It was submitted that at no point was a representation made that he was physically incapable of offending against a child or that his cognition was such that he could not offend in that way.

78    I do not accept that submission. I have set out the relevant representations above. It is true that in the 'Part A' document, Ms Ranson said that she believed Mr Ranson was of no risk to the wider community because she would be his full-time carer and she would be supervising him '24 hours a day seven days a week'. There is a link between supervision and the asserted lack of risk there. But in the 'Personal Circumstances Form' that link was not so clear. It relevantly said, 'There is no risk of Michael reoffending due to his health and dementia and his fulltime supervision that he needs.' Counsel for the Minister submitted, in effect, that the there was still a link between the health and dementia and the full time supervision, but it is at least equally open to read them as being two independent reasons why there was no risk of Mr Ranson reoffending. And in the email of 7 May 2021, there was more straightforward reliance on Mr Ranson's medical condition, with Ms Ranson saying that he 'most definitely' did not pose 'a violent threat to anybody' given his medical condition, and 'if anything he is vulnerable', with no reference to the proposed supervision. So while one of these statements did seem to rely on the asserted supervision, and another was ambiguous, taken together with the third it was made clear to the Minister that Ms Ranson was contending that Mr Ranson was incapable of reoffending.

79    In any event, that is a contention which arose clearly on the materials taken as a whole. It must be recalled that these were statements made by a non-legally trained person as part of an administrative and not a court process. Assessing the representations and the import of the material as a whole at this point is not an exercise in carefully parsing the language used to discern fine gradations of meaning. Given Mr Ranson's advanced age, the ample material suggesting that there had been a marked decline in his cognitive abilities and physical condition, and the express statements that were made, it was obvious that his asserted incapacity was being put forward as a reason why there was no risk that he would reoffend, independently of other factors. I therefore do not accept the first possible explanation given above.

80    If the true explanation for the apparent absence of consideration of that contention is the second one, that the Minister decided that it was not of sufficient importance or weight to warrant further consideration, that would bespeak jurisdictional error. That is because, as already explained, the contention was central to the Minister's consideration of whether there was another reason why the cancellation of the visa should be revoked. This does not involve the Court imposing its own views of what is and is not important, and so transgressing into merits review. It is merely to acknowledge the logical consequence of the Minister's own reasoning, as described above in connection with ground 1. Viewed in that light, for the Minister to conclude that the representations that Mr Ranson was no longer capable of reoffending were irrelevant, or of so little weight as to require no deliberation, would be to transgress the limits of rationality and reasonableness that circumscribed his discretion as to which aspects of the representations he was to consider.

81    In fact, I doubt that the Minister did reach that conclusion. At paragraph 33 he acknowledges Ms Ranson's submission that Mr Ranson 'will be no risk to the community due to his health issues, dementia and the presence of full time supervision'. These seem to be presented as three matters which mean, separately and together, that there is no risk to the community. It is unlikely the Minister would have mentioned those representations if they were ones to which he had decided to accord no weight.

82    The third possible explanation for the Minister's apparent lack of engagement with the evidence is that it is indeed apparent only. It is possible that he did in fact consider it, and merely chose not to articulate that in his written reasons. It is, after all, the reality of consideration by the decision maker that is required. The Court must make its own qualitative assessment about whether, as a matter of substance, the decision maker had regard to the representations before him or her: see Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ). The same may be said if, in light of Plaintiff M1/2021, the nature of the requirement is better described as being to read, identify, understand and evaluate the representations. An administrative decision maker such as the Minister is under no obligation to articulate every step in their reasoning process, and an absence of any express consideration of a matter does not necessarily lead to a conclusion that it was not considered (in the requisite sense). Such a conclusion will not be lightly reached and must be supported by clear evidence, bearing in mind that judicial review applicants carry the onus of proof: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48]. It will frequently be a matter of impression reached in light of all of the circumstances of the case, including as a matter of inference to be drawn from the way in which the representation was advanced, and 'the structure, tone and content of the decision-maker's reasons': Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ).

83    I have described above under ground 1 the approach the Minister took to his assessment of the likelihood that Mr Ranson would reoffend. The inference I make on the basis of the matters described there is that the Minister overlooked, ignored or misunderstood the potential significance of the representations and material bearing on Mr Ranson's ability to reoffend, regardless of supervision. I make the inference on the basis of three matters in particular: the centrality of the issue; the Minister's apparent acceptance of the extent of Mr Ranson's infirmity; and the Minister's full articulation of his views on the significance of family supervision, with a contrasting absence of any mention of the significance of the infirmity (or lack thereof). In light of those matters, taken together, it is improbable that the Minister appreciated the import of the representations about Mr Ranson's infirmity but chose not to express his view about that import. So I do not accept the third possible explanation, that the lack of consideration of the representation was apparent and not real.

84    It follows from all this discussion that the fourth explanation is more likely than not: the Minister overlooked, ignored or misunderstood the potential significance of Mr Ranson's physical and mental decline for the probability that he would reoffend. It appears that he instead moved straight to considering supervision as a protective factor. That he overlooked the potential significance of Mr Ranson's infirmity is also suggested by the lack of any explanation as to how, in light of it, the Minister's assessment of the risk level remained the same as that of the sentencing judge in 2017, before Mr Ranson's decline.

85    For those reasons, I find that the Minister did not consider the representations that Mr Ranson's physical and mental condition meant that he posed no threat to anyone in the manner necessary to discharge the statutory task. This lack of consideration was not because the Minister evaluated the representation as not worthy of deliberation (and if he had done so, that would have been illogical and unreasonable). Therefore the Minister fell into jurisdictional error in the way which ground 3 contends.

Conclusion

86    An extension of time to make the application for judicial review should be granted. Grounds of review 1 and 3 are upheld. The Minister's decision should be set aside and ordinarily the matter would be remitted to him for reconsideration according to law.

Associate:

Dated:    6 April 2023