Federal Court of Australia

Tikomaimaleya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 659

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The application for judicial review be dismissed.

3.    The applicant pay the respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

GOODMAN J

A.     INTRODUCTION

1    The applicant is a citizen of Fiji who arrived in Australia on 28 November 1987. On 26 November 2010, he was granted a Resident Return (Class BB) (subclass 155) visa.

2    On 18 June 2015, the applicant was convicted by the District Court of New South Wales of an offence of “sexual intercourse with a person under the age of 10 years” and sentenced to a term of imprisonment of nine years with a non-parole period of six years. On 1 September 2017, the Court of Criminal Appeal of the Supreme Court of New South Wales unanimously dismissed his appeal: Tikomaimaleya v R [2017] NSWCCA 214; (2017) 95 NSWLR 315 (Simpson JA, Harrison and Davies JJ). On 12 August 2021, the High Court of Australia (Keane and Gleeson JJ) refused an application for an extension of time in which to make an application for special leave to appeal: Tikomaimaleya v The Queen [2021] HCASL 157.

3    On 28 March 2019, the respondent Minister cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth). The Minister notified the applicant of this cancellation and invited the applicant to make representations concerning the revocation of the cancellation decision. The applicant did so.

4    On 18 October 2021, the Minister made a decision not to revoke the visa cancellation and provided a Statement of Reasons for Decision (Reasons, or D) for refusing to do so. The applicant seeks judicial review of the Minister’s decision. He contends that the Minister made jurisdictional errors in failing to afford procedural fairness to the applicant and in failing to engage properly with and consider, in the required legal sense, the evidence and issues relating to the extent of impediments that the applicant would face if he were to be removed from Australia.

5    For the reasons set out below, the application should be dismissed.

B.    Background

6    In view of the nature of the alleged errors, it is necessary to set out in some detail the representations made by the applicant to the Minister and the context in which those representations were made.

7    On 3 May 2019, the applicant, with the assistance of Mr Willis, a solicitor and migration consultant, made representations to the Minister seeking revocation of the cancellation decision. Those representations addressed, in turn, the “primary” and “other” considerations described in then current Direction No. 79. The representations included:

(1)    a lengthy submission under the heading “Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1.2)”;

(2)    the following representations concerning the impediments that the applicant would face if he were removed from Australia:

Extent of Impediments if Removed (14.5)

We submit that significant impediments exist if the Applicant were returned to Fiji. We submit that the Applicant would not be able to establish himself and maintain basic living standards in Fiji. The Applicant does not have any family connection or support networks in Fiji as his grandmother who raised him is deceased. The remainder of the Applicant’s family have migrated to Australia and would not be able to provide him with support in Fiji.

We submit that the Applicant’s age and poor health will significantly impede his ability to establish himself in Fiji. An attached medical report describes the Applicant’s having a medical history of ‘insulin-requiring type 2 diabetes, advance chronic renal disease due to diabetic nephropathy, hypercholesterolemia, hypertension, gout, diverticular disease, cervical spondylosis and obesity ... chronic renal disease.’ The medical report also details the Applicant’s prognosis in relation to his kidney function as, ‘relatively poor ... I anticipate that he will eventually have end stage kidney failure requiring dialysis. Accordingly I strongly recommend that he resides in a location near a large hospital where he can have access to dialysis when this becomes necessary.’

We submit that the Applicant’s health needs would not be adequately addressed in Fiji because he would not have the financial means to access Fiji’s limited diabetic and kidney disease treatments. A T1International article dated 22 April 2016 stated:

Insulin is meant to be provided free at the government pharmacy, which is located in the capital city, the main pharmacy distributes insulin to the individual clinics throughout the country. The individual clinics sometimes fail to restock enough insulin and the people are then forced to buy from the private pharmacy ... A pack of 50 [glucometer] strips will cost around USD $30. This is extremely expensive for common people whose average wage is around $100 USD weekly ... We have also been receiving complaints from our type 1 adults about being not offered a job or getting terminated due to their diabetes.

The ABC reported in 2013 that:

48 patients currently on dialysis ... about 16 percent of the population are diabetic, and out of that ... 8 percent should go on dialysis straight away ... [approximately] a couple of thousand ... around 95 percent of those who require dialysis in Fiji would die ... and 50-70 [year olds] we suggest not to get a transplant, because most of those transplants don’t work.

A 2017 Fiji Sun article reported:

The dialysis is the only way to keep us surviving. We have to undergo the treatment three times a week in a year will cost around $30,000. Patients have to use their own money ... in a week, one person dies from kidney failure and most those people were the ones who could not afford dialysis.

The Fiji Times reported an insulin shortage on 4 March of this year.

We submit that the Applicant would not be able access (sic) the treatment he needs to manage his worsening kidney disease and diabetes because his age and illness would prevent him from earning enough money to pay for medical care. Furthermore, we submit that any money we would earn would be spent on medical treatment at the expense of his other basic needs.

We submit that the Applicant’s lack of a support network combined with his low employment prospects, due to his age, low level of education and ill health, and his need for expensive medical treatment would preclude him from establishing himself and maintaining basic living standards if he was returned to Fiji. Therefore, we submit that the impediments the Applicant would face if returned to Fiji should weigh heavily in favour of revocation.

(emphasis added)

(The attached medical report was a report from Dr Mark Sheps dated 3 May 2019); and

(3)    the following representations concerning the strength, nature and duration of the applicant’s ties to Australia:

Strength, nature and duration of ties to Australia (14.2)

We submit that since arriving in Australia in 1987, the Applicant has contributed positively to the Australian community (the Directions s 14.2(1)(a)(ii)). These contributions include being gainfully employed throughout the majority of his time in Australia, aside from brief periods of unemployment during which he never accessed government benefits (Letters of Support, 9). The Applicant has also supported and raised two law-abiding children who positively impact their community (Letters of Support, 1, 11 and 17). Additionally, we submit that the stability of the Applicant’s long-term marriage allowed him to provide a loving environment where his and other children thrived (Letters of Support, 1, 3, 5, 7, 8, 9, 10, 11, 13, 15, and 16).

The Applicant is well regarded and plays a significant role in the lives of his family and close friends. The Letters of Support describe a variety of negative effects that will be experienced by a wide range of Australians should the revocation of the cancellation of the Applicant’s visa not be granted.

The Applicant is a well-regarded member of his community due to his active participation in his church and charitable fundraising events. The Applicant is described in the Letters of Support as generous and community minded man (sic). Pages 9, 11 and 13 of the Letters of Support detail his involvement with his local church and fundraising efforts for HIV/Aids related causes. David Low, as relative (sic) of the Applicant describes him at pages 16 and 17 in the Letters of Support as:

A respectful man, he always was kind and helpful to those who needed help and was selfless, always putting others needs before his ... Talemo has had quite a considerable service to the community ... Australia needs more hard working people with a great work ethic like Talemo. He has successfully raised two beautiful children who in addition continue to serve this country well. His service to the Australian/Fijian community is unparalleled and we need more people that can make a difference in our country ... I believe Talemo is great example of the true meaning to be an Australian, Talemo upholds the beliefs and ethics of this country Australia which he calls home.

We submit the time spent, by the Applicant, making these positive contributions should be given more weight than the time associated with his conviction. The Applicant’s conviction occurred after 28 years of positive contributions to the Australian community. We submit that the duration of the Applicant’s positive ties outweighs the negative impacts of his conviction since his conviction did not occur soon after his arriving in Australia (the Directions s14.2(1)(a)(i)).

The Applicant also has strong familial ties to Australia and social links with community members in Australia who have the right to remain indefinitely in Australia (the Directions s14.2(1)(b)). We submit that should the cancellation of the Applicant’s visa be upheld it would cause significant and lasting emotional and psychological harm to his Australian family. Upholding the cancellation of the Applicant’s visa would result in indefinite separation from his Australian family and from those with whom he has developed lifelong relationships and friendships with in Australia. The most significant harm would be experienced by his wife who stated at pages 3 and 4 of the Letters of Support:

If my husband’s visa were to be cancelled this would be highly distressing for our family. This would mean I would be losing my best friend, husband and the man I should be spending our senior life together. More importantly the financial burden this would place is something I cannot afford. This would place immense emotional and financial pressure.

We submit that significant weight in support of revocation should be given to the Applicant because of his strong and long-standing ties with the Australian community.

8    On 30 April 2020 and 2 December 2020 respectively, the Minister invited the applicant to comment on various issues. On 28 May 2020 and 15 December 2020 respectively, Mr Willis on behalf of the applicant made representations on those issues.

9    On 15 April 2021, Direction No. 79 was replaced by Direction No. 90. Relevantly, Direction No. 90 provided:

8.    Primary considerations

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the best interests of minor children in Australia;

(4)    expectations of the Australian community.

8.1    Protection of the Australian community

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2)    Decision-makers should also give consideration to:

a)    the nature and seriousness of the non-citizen’s conduct to date; and

b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

…

8.1.2    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non­citizen re-offending; and

ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

…

9.    Other considerations

(1)    In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a)    international non-refoulement obligations;

b)    extent of impediments if removed;

c)    impact on victims;

d)    links to the Australian community, including:

i)    strength, nature and duration of ties to Australia;

ii)    impact on Australian business interests

…

9.2     Extent of impediments if removed

(1)    Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)    the non-citizen’s age and health;

b)    whether there are any substantial language or cultural barriers;

c)    any social, medical and/or economic support available to them in that country.

…

9.4.1. The strength, nature and duration of ties to Australia

(1)    Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)    Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)     the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

10    On 19 April 2021, the Minister’s Department wrote to the applicant and to Mr Willis advising them that Direction No. 90 had commenced; providing them with a copy of Direction No. 90; and inviting them to read it carefully and make any further representations within 28 days.

11    On 16 August 2021, Mr Willis, on behalf of the applicant, provided further representations (16 August 2021 representations). Those representations addressed Direction No. 90. They included:

(1)    a lengthy submission under the heading “Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (8.1.2)”. As part of that submission, reference was made to an attached report of case notes obtained from New South Wales Department of Corrective Services recording observations from staff members and the applicant’s case officer. Extracts from various case notes were set out. The case notes were not part of the earlier representations made on behalf of the applicant;

(2)    the following representations concerning the impediments that the applicant would face if he were to be removed from Australia:

Extent of Impediments if Removed (9.2)

We submit that the Applicant’s health needs would not be adequately addressed in Fiji because he would not have the financial means to access Fiji’s limited diabetic and kidney disease treatments. A T1International article dated 22 April 2016 stated:

Insulin is meant to be provided free at the government pharmacy, which is located in the capital city, the main pharmacy distributes insulin to the individual clinics throughout the country. The individual clinics sometimes fail to restock enough insulin and the people are then forced to buy from the private pharmacy ... A pack of 50 [glucometer] strips will cost around USD $30. This is extremely expensive for common people whose average wage is around $100 USD weekly ... We have also been receiving complaints from our type 1 adults about being not offered a job or getting terminated due to their diabetes.

The ABC reported in 2013 that:

48 patients currently on dialysis ... about 16 percent of the population are diabetic, and out of that ... 8 percent should go on dialysis straight away ... [approximately] a couple of thousand ... around 95 percent of those who require dialysis in Fiji would die ... and 50-70 [year olds] we suggest not to get a transplant, because most of those transplants don’t work.

A 2017 Fiji Sun article reported:

The dialysis is the only way to keep us surviving. We have to undergo the treatment three times a week in a year will cost around $30,000. Patients have to use their own money ... in a week, one person dies from kidney failure and most those people were the ones who could not afford dialysis.

Fiji also has a history of having insulin shortages. For example, the Fiji Times reported an insulin shortage on 4 March 2019.

We submit that the Applicant would not be able access (sic) the treatment he needs to manage his worsening kidney disease and diabetes because his age and illness would prevent him from earning enough money to pay for medical care. Furthermore, we submit that any money we would earn would be spent on medical treatment at the expense of his other basic needs.

We submit that the Applicant’s lack of a support network combined with his low employment prospects, due to his age, low level of education and ill health, and his need for expensive medical treatment would preclude him from establishing himself and maintaining basic living standards if he was returned to Fiji. Therefore, we submit that the impediments the Applicant would face if returned to Fiji should weigh heavily in favour of revocation.

(emphasis added)

(3)    the following representations concerning the strength, nature and duration of the applicant’s ties to Australia:

9.4.1    The strength, nature and duration of ties to Australia

We submit that since arriving in Australia in 1987, the Applicant has contributed positively to the Australian community (the Directions s 9.4.1(1)). These contributions include being gainfully employed throughout the majority of his time in Australia, aside from brief periods of unemployment during which he never accessed government benefits (Letters of Support, 9). The Applicant has also supported and raised two law-abiding children who positively impact their community (Letters of Support, 1, 11 and 17). Additionally, we submit that the stability of the Applicant’s long-term marriage allowed him to provide a loving environment where his and other children thrived (Letters of Support, 1, 3, 5, 7, 8, 9, 10, 11, 13, 15, and 16).

The Applicant is well regarded and plays a significant role in the lives of his family and close friends (the Directions s 9.4.1(2)(b)). The Letters of Support describe a variety of negative effects that will be experienced by a wide range of Australians should the revocation of the cancellation of the Applicant’s visa not be granted.

The Applicant is a well-regarded member of his community due to his active participation in his church and charitable fundraising events. The Applicant is described in the Letters of Support as generous and community minded man. Pages 9, 11 and 13 of the Letters of Support detail his involvement with his local church and fundraising efforts for HIV/Aids related causes. David Low, as relative of the Applicant describes him at pages 16 and 17 in the Letters of Support as:

A respectful man, he always was kind and helpful to those who needed help and was selfless, always putting others needs before his … Talemo has had quite a considerable service to the community … Australia needs more hard working people with a great work ethic like Talemo. He has successfully raised two beautiful children who in addition continue to serve this country well. His service to the Australian/Fijian community is unparalleled and we need more people that can make a difference in our country … I believe Talemo is great example of the true meaning to be an Australian, Talemo upholds the beliefs and ethics of this country Australia which he calls home.

We submit the time spent, by the Applicant, making these positive contributions should be given more weight than the time associated with his conviction. The Applicant’s conviction occurred after 28 years of positive contributions to the Australian community. We submit that the duration of the Applicant’s positive ties outweighs the negative impacts of his conviction since his conviction did not occur soon after his arriving in Australia (the Directions ss 9.4.1(2)(a)(i), 9.4.1(2)(a)(ii).

The Applicant also has strong familial ties to Australia and social links with community members in Australia who have the right to remain indefinitely in Australia (the Directions s 9.4.1(2)(b)). We submit that should the cancellation of the Applicant’s visa be upheld it would cause significant and lasting emotional and psychological harm to his Australian family. Upholding the cancellation of the Applicant’s visa would result in indefinite separation from his Australian family and from those with whom he has developed lifelong relationships and friendships with in Australia. The most significant harm would be experienced by his wife who stated at pages 3 and 4 of the Letters of Support:

If my husband’s visa were to be cancelled this would be highly distressing for our family. This would mean I would be losing my best friend, husband and the man I should be spending our senior life together. More importantly the financial burden this would place is something I cannot afford. This would place immense emotional and financial pressure.

We submit that significant weight in support of revocation should be given to the Applicant because of his strong and long-standing ties with the Australian community.

12    Within the report of case notes attached to the 16 August 2021 representations was a case note of an interview with the applicant on 29 March 2016 which was recorded by an officer of Corrective Services in the following terms (29 March 2016 case note):

•    Tiko continues to deny categorically his involvement in the offence. He believes the victim was coaxed into making accusations against him and believed the victim’s mother coached her during the Court procedures.

•    Tiko stated he was shocked when Police came and arrested him on Christmas eve and he just felt “lost”.

•    When asked whether he believed the victim was sexually assaulted, he stated, “I don’t believe she was”.

•    He then stated that if what had actually occurred, in that “had I stuck my longest finger inside her privates for 10 minutes she wouldn’t be able to walk. It’s not true what she said”. (sic)

•    He then stated he was never left alone with her and that the victim claimed to be asleep but that she never sleeps. Tiko was challenged in regards to motivations for a victim or parents to make a 5-year-old child to falsely accuse him; and he continued to plead that he didn’t know and that was what made it so hard.

(emphasis added)

13    “Tiko” is a reference to the applicant. The 29 March 2016 case note was not one of the case notes from which extracts were included in the 16 August 2021 representations but, as noted above, formed part of a bundle of case notes provided by the applicant to the Minister with those representations.

C.    The minister’s decision not to revoke the cancellation

14    Set out below is an overview of the parts of the Reasons relevant to this application for judicial review. Again, given the nature of the alleged errors, it is necessary to describe the Reasons in some detail.

15    At the outset, the Minister acknowledged that the applicant’s visa had been cancelled and that he (the Minister) could revoke the cancellation under s 501CA(4) of the Act if: (1) the applicant made representations that he should do so; and (2) the Minister was satisfied that either the applicant passed the character test (as defined by s 501) or there was another reason why the cancellation decision should be revoked (at D[1] to [2]).

16    The Minister acknowledged (at D[3]) that the applicant had made representations seeking revocation of the cancellation decision; noted (at D[8]) that the applicant did not dispute that he did not satisfy the character test; and concluded (at D[9]) that he was not satisfied that the applicant passed that test. Thus, the only issue for determination was whether there existed another reason to revoke the cancellation of the applicant’s visa (see D[10]).

17    In considering that issue the Minister had regard to Direction No. 90 despite not being bound to do so (at D[11]). The Minister addressed the “Primary considerations” and then the “Other considerations” set out in Direction No. 90.

18    The first primary consideration was the “Protection of the Australian community from criminal or other serious conduct” (Direction No. 90 at cll 8(1), 8.1 – see [9] above). As part of that consideration the Minister addressed the “Nature and seriousness of the conduct” (at D[15] to [25]) and then the “Risk to the Australian community” (at D[26] to [38]).

19    In addressing the risk posed by the applicant to the Australian community, the Minister addressed “Factors contributing to past conduct” (at D[29] and [30]) and “Remorse and rehabilitation” (at D[31] to [37]). Under the heading “Remorse and rehabilitation”, the Minister stated at [31] to [33]:

31.    I have noted Judge King’s concern about Mr TIKOMAIMALEYA’s continued denial of the offence and that the judge said that he had ‘not demonstrated any insight in(to) the offence’ and that there was ‘no finding of remorse or contrition’ Attachment B. Mr TIKOMAIMALEYA’s conviction is a legal fact that was confirmed on appeal Attachment C. I also note that the High Court of Australia stated that Mr TIKOMAIMALEYA’s criminal case did ‘not enjoy sufficient prospects of success to warrant a grant of special leave’ and refused the special leave to appeal the Court of Criminal Appeal of the Supreme Court of New South Wales’ decision Attachment AP.

32.    I have also had regard to Mr TIKOMAIMALEYA’s prison case note reports which state that on 29 March 2016 he stated to a correctional officer that he believed that the victim had been ‘coaxed into making accusations’ against him and had been ‘coached’ by her mother during the court proceedings. Mr TIKOMAIMALEYA also stated to the correctional officer that he didn’t believe that the victim had been sexually assaulted and that “had I stuck my longest finger inside her privates for 10 minutes she wouldn’t be able to walk” Attachment AQ. I find these comments not only repugnant, but markedly inconsistent with having remorse or insight, or making significant progress towards rehabilitation.

33.    Mr Willis submits that the likelihood of Mr TIKOMAIMALEYA sexually offending against another minor is ‘low’ and highlights Judge King’s assessment that Mr TIKOMAIMALEYA had a low risk of reoffending, in view of his age and lack of prior criminal offending and his record of employment. Mr Willis also references a forensic psychologist’s report dated 26 March 2015, which found that Mr TIKOMAIMALEYA presented with a ‘low risk of reoffending’ in light of his ‘employment, a long-term stable intimate relationship, no evidence of problems with non-intimate relationships, no major mental illness or psychopathic personality, no substance abuse history, no evidence of sexual deviance and no known sexual offending other than this offence’ Attachments F, J, AR.

(emphasis on attachments in original; other emphasis added)

20    The Minister expressed the following conclusion as to the risk presented by the applicant to the community (at D[38]):

Conclusion on risk to community

38.    I have found that the nature of Mr TIKOMAIMALEYA’s conduct is very serious. I have further found that sexually assaulting a child has the potential to cause serious physical and/or psychological injury to vulnerable members of the Australian community. While I accept that Mr TIKOMAIMALEYA has no history of other similar offending or any other indications of sexual interest in children, neither has he been able to provide any explanation of his actions in sexually assaulting a child when the opportunity arose. On balance I consider there to be an ongoing risk, albeit possibly lower than before, that Mr TIKOMAIMALEYA will reoffend. I have given this significant weight against revocation.

21    The Minister then addressed:

(1)    the second primary consideration – whether the conduct engaged in constituted family violence (Direction No. 90 at cl 8(2)) – and concluded that it did not (at D[39] to [41]);

(2)    the third primary consideration – the best interests of minor children in Australia (Direction No. 90 at cl 8(3)) – and expressed the view that he did not accept that (relevantly) the applicant’s nieces and nephews would necessarily be significantly affected by his removal from Australia (at D[42] to [50]); and

(3)    the fourth primary consideration – the expectations of the Australian community (Direction No. 90 at cl 8(4)) – and concluded that those expectations were that the applicant be removed from Australia (at D[51] to [56]).

22    The Minister then turned to the “Other considerations” specified in cl 9 of Direction No. 90. One of those considerations was the extent of impediments that the applicant may face if removed from Australia to Fiji (Direction No. 90, cll 9(1)(b) and 9.2 – see [9] above). At D[61] to [75], the Minister stated:

Extent of impediments if removed to Fiji

61.    I have considered the extent of any impediments that Mr TIKOMAIMALEYA, if removed from Australia to his home country, will face in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Fiji), taking into account the following.

Age and health

62.    Mr TIKOMAIMALEYA is aged 67 and has insulin dependent type two diabetes, advanced chronic renal disease due to diabetic nephropathy, hypercholesterolemia, hypertension, gout, diverticular disease, cervical spondylosis and obesity and he believes that his health would deteriorate and he would suffer from psychological/mental health issues if removed to Fiji. Mr TIKOMAIMALEYA also states he has no family ties or financial support in Fiji Attachment E.

63.    Mr Willis highlights a medical report by Dr Mark Sheps dated 3 May 2019, which details Mr TIKOMAIMALEYA’s medical conditions and states the prognosis in relation to his kidney function is ‘relatively poor... I anticipate that he will eventually have end stage kidney failure requiring dialysis. Accordingly I strongly recommend that he resides in a location near a large hospital where he can have access to dialysis when this becomes necessary’ Attachments F, I.

64.    Mr Willis submits that there are ‘significant impediments’ to Mr TIKOMAIMALEYA being returned to Fiji, including that he would not be able to establish himself or maintain basic living standards there, particularly because of his poor health and advanced age. Mr Willis also notes that Mr TIKOMAIMALEYA has no family or support networks in Fiji Attachment F.

Social, medical and/or economic support available in Fiji

65.    Mr Willis submits that Mr TIKOMAIMALEYA’s health needs cannot be adequately addressed in Fiji, nor would he have the financial means to access the ‘limited diabetic and kidney disease treatments’ in Fiji. Mr Willis states Mr TIKOMAIMALEYA’s prospects of maintaining basic living standards have been exacerbated by the COVID-19 pandemic and the impact it has had on Fiji’s economy and employment Attachments F, H, AR. Mr Willis highlights the United Nations Pacific’s Socio-Economic Impact Assessment of COVID-19 in Fiji (‘UN Report’) dated July 2020, that found that the Fijian economy is expected to contract significantly and that overall, labour. conditions have ‘worsened’. Mr Willis submits that Mr TIKOMAIMALEYA ‘who is an elderly undereducated person with ongoing health problems, will find it very difficult if not impossible to find employment in Fiji’ Attachment H.

66.    Mr Willis references a T1International article dated 22 April 2016, which states that insulin in Fiji is meant to be provided free and distributed to individual clinics throughout the country, however sometimes there is not enough stock and people are forced to buy from private pharmacies. It is noted that the cost of packet of insulin strips cost $30 USD, which is ‘extremely expensive’, given the average weekly wage is $100 USD. The article also notes that the authors have received complaints from type one diabetes clients about not being offered employment or being terminated from employment because of their diabetes Attachments F, Y, AR.

67.    Mr Willis highlights an ABC news article dated 28 February 2013 which stated that about 16 percent of the Fijian population are diabetic and that ‘around 95 per cent of those who require dialysis in Fiji would die’. The article also notes that people aged in 50-70 years are not encouraged to undergo a kidney transplant as ‘most of those transplants don’t work’ Attachments F, AB, AR.

68.    Mr Willis also references a Fiji Sun article dated 1 January 2017 which states that patients use their own money to fund kidney dialysis treatment, which costs $30,000 a year in Fiji. The article states that each week one person dies from kidney failure and most of those could not afford dialysis treatment Attachments F, AA, AR.

69.    Mr Willis also states that Fiji has a history of insulin shortages and that the Fiji Times reported an insulin shortage on 4 March 2019 Attachments Z, AR.

70.    Mr Willis states that the current COVID-19 travel ban will prevent or ‘significantly impede’ Mr TIKOMAIMALEYA’s return to Fiji. Mr Willis also submits that under present arrangements, Mr TIKOMAIMALEYA’s family would not be able to travel to Fiji to support him, should he be returned there Attachment H.    ·

71.    Mr Willis states that Mr TIKOMAIMALEYA would not be able to access the medical treatment needed to manage his kidney disease and diabetes, and his age and illnesses would prevent him from earning sufficient money to pay for the medical treatment. Mr Willis submits the impediments that Mr TIKOMAIMALEYA would face if returned to Fiji should ‘weigh heavily in favour of revocation’ Attachment F.

72.    Whilst I see no reason to doubt that Mr TIKOMAIMALEYA will have access to health services, and treatment in Fiji, equivalent to the general population, I accept that the standard and ease of access is far inferior to the available healthcare and treatment Mr TIKOMAIMALEYA would have in Australia. I further accept and the evidence supports that Mr TIKOMAIMALEYA’s significant health needs, especially his kidney function, may not be adequately addressed in Fiji, which could likely result in a further deterioration of his physical and mental health. I also accept that Mr TIKOMAIMALEYA’s age, health issues and the poor economic situation in Fiji are all likely to be impediments to him finding employment in Fiji. This weighs significantly in favour of revocation.

73.    However it is not clear why Mr TIKOMAIMALEYA’s family in Australia could not provide him with at least some financial assistance to access some medication and treatment in Fiji. I note that Mr TIKOMAIMALEYA’s wife works full time and that his adult son also states that he is employed. I also note that Mr TIKOMAIMALEYA has worked and paid taxes in Australia and as noted by the Judge King has ‘rarely been without a job, and ... has not claimed unemployment benefits’ Attachments B, M, O. This suggests that Mr TIKOMAIMALEYA is likely to have some superannuation that could contribute to assisting him with paying for his medication and other healthcare needs in Fiji.

Language and cultural barriers

74.    Mr TIKOMAIMALEYA spent half his life in Fiji, moving to Australia as an adult of 33 years. As such, I do not consider that there are substantial language or cultural barriers that Mr TIKOMAIMALEYA would face if returned to Fiji. Nevertheless I accept that the lack of immediate support from family and friends and being separated from his wife and children, who state they are unlikely to relocate with him, are factors that would make relocating to Fiji very difficult for Mr TIKOMAIMALEYA.

75.    Overall, I find that Mr TIKOMAIMALEYA will face substantial practical and emotional hardship upon a return to Fiji, due to his age, lack of family and social support and limited employment opportunities. I also find that Mr TIKOMAIMALEYA’s physical and mental health will deteriorate if returned to Fiji due to the limited medical services and treatment in the country equipped to address his significant health needs.

(emphasis in original)

23    The Minister also addressed as an “Other consideration” the applicant’s links to the Australian community (as per Direction No. 90, cll 9(1)(d) and 9.4 – see [9] above). In doing so, the Minister addressed the strength, nature and duration of the applicant’s ties to his immediate family, at D[79] to [86]:

Links to the Australian community

Strength, nature and duration of ties to Australia

(a)    Immediate family

79.    I note that Mr TIKOMAIMALEYA has immediate family members in Australia, being: wife Mrs Mary Nair, two adult children Irene Nair and Eric Nair, two brothers Tommy Nair and Julian Nair, sister Susie Nair and seven nieces and nephews Attachment E.

80.    Mr TIKOMAIMALEYA submits that he has been married to Mrs Nair for 39 years and they intend spending the rest of their lives together. He states that if his visa cancellation is not revoked, his family would be ‘broken up’ and have psychological issues Attachment E.

81.    I have considered Mrs Nair’s letter of support and acknowledge that she remains supportive of her husband, who she submits is a caring and law abiding person. Mrs Nair states that Mr TIKOMAIMALEYA’s incarceration has been ‘very emotional/psychological/physically distressing’ on her and their children. She submits that his visa cancellation would be ‘highly distressing’ and would mean she would miss out on spending her senior years with her ‘best friend’ and husband Mrs Nair also submits that the non-revocation of Mr TIKOMAIMALEYA’s visa cancellation would place her under ‘immense emotional and financial pressure’ Attachment M.

82.    Mr TIKOMAIMALEYA states that his family misses him, are ‘distraught’ about his conviction and the possibility of his removal from Australia and are ‘almost going mad’. Mr TIKOMAIMALEYA submits that his son has resorted to drinking and drug taking because of his father’s incarceration and visa cancellation Attachment E. I have had regard to Mr TIKOMAIMALEYA’s son Mr Eric Nair’s letter of support and note that Mr Nair writes that if his father were to leave Australia that his family ‘would fall apart and mental issues would arise’. Mr Nair did not disclose that he had any drug or alcohol related issues in his letter to the Department Attachment O.

83.    I have also considered the letter of support from Mr TIKOMAIMALEYA’s daughter Ms Irene Nair. Ms Nair writes that she has a ‘very close relationship’ with her father. She states that if Mr TIKOMAIMALEYA’s visa cancellation is not revoked her family would be devastated and that her mother would be placed under emotional and financial pressure not being able to afford the costs of international calls and travel. Ms Nair further submits that her mother could not move to Fiji as she has financial commitments in Australia Attachment N. I do not accept that Mrs Nair would not be able to afford to speak with Mr TIKOMAIMALEYA in Fiji as there are many free or affordable applications for online contact. However I acknowledge that travel to Fiji may be cost prohibitive for family members.

84.    I have taken into account Mr Willis’ submission that the non-revocation of Mr TIKOMAIMALEYA’s visa cancellation ‘would cause significant and lasting emotional and psychological harm to his Australian family’ and would result in the ‘indefinite separation’ from his family Attachment AR.

85.    I note that Mr TIKOMAIMALEYA has been in prison or immigration detention for the last six years and has not been in a position to provide financially for Mrs Nair for many years. I also note that Mrs Nair submits that she works full time and intends to do so for many more years. She has not provided any evidence that she is not currently able to meet her financial commitments. However I accept that Mrs Nair may be planning to rely on Mr TIKOMAIMALEYA’s retirement funds in the future, which could place her under financial pressure.

86.    I have considered the impact of non-revocation upon Mr TIKOMAIMALEYA’s immediate family in Australia and find that those persons would experience emotional distress and practical and some financial hardship, particularly Mr TIKOMAIMALEYA’s wife, Mrs Mary Nair.

(emphasis in original)

24    After addressing each of the “Other considerations”, the Minister expressed the following conclusion (at D[93] to [99]):

CONCLUSION

93.    I considered whether there is another reason why the decision to cancel Mr TIKOMAIMALEYA’s visa should be revoked, despite Mr TIKOMAIMALEYA not satisfying me that he passes the character test.

94.    I have found that a number of other factors also weigh in favour of a decision to revoke. These include the strength and nature of his ties to Australia and significant impediments to him returning to Fiji.

95.    However I have also given significant weight to very serious nature of the crime committed in this case, which involved child sexual assault. This weighs heavily against revocation.

96.    Furthermore, I am of the view that non-citizens who have engaged in sexual assault or other sexually abusive behaviour raise character concerns so serious that the Australian community would expect they should not continue to hold a visa. I give this primary consideration significant weight as well against revocation of the visa cancellation.

97.    Noting that Mr TIKOMAIMALEYA has lived in Australia for over 30 years, I have taken into account that Australia may afford a higher level of tolerance of criminal conduct in relation to him than it would otherwise. However I am cognisant that where significant harm could be inflicted on the Australian community, even strong countervailing considerations may be insufficient for me to revoke the decision to cancel Mr TIKOMAIMALEYA’s visa.

98.    Mr TIKOMAIMALEYA engaged in a sexual crime against a child. As explained in the Direction, the inherent nature of this kind of conduct is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

99.    On balance, I find that the factors that weigh against revocation of Mr TIKOMAIMALEYA’s visa outweigh the factors in favour of revocation. Therefore, I am not satisfied that there is another reason why the decision to cancel Mr TIKOMAIMALEYA’s Class BB Subclass 155 Five Year Resident Return visa should be revoked, as required by s501CA(4)(b)(ii) of the Act.

(emphasis added)

D.    Ground 1 – Procedural fairness

25    I turn now to consider the grounds of review.

26    The applicant contends, by the first ground of review, that he was denied procedural fairness because he was not given the opportunity to comment on two issues. This ground is expressed as follows:

Mr. Tikomaimaleya was denied procedural fairness by not being given the chance to comment on 2 issues.

1.    The interpretation given to a statement he made to Corrective Services, being, “had I stuck my longest finger inside her privates for 10 minutes she wouldn’t be able to walk”.

2.    The suggestion that his family would pay for medication and medical treatment in Fiji or he would have superannuation to cover.

Relevant principles

27    It is common ground that the Minister was obliged to afford procedural fairness to the applicant.

28    It is well-established that the content of the obligation to afford procedural fairness is not fixed and is a function of the statutory framework in which the impugned decision was made and the circumstances of the particular case: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 160 to 161 ([25] to [26]) (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230 (Black CJ, Ryan and Hill JJ); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590 (Northrop, Miles and French JJ). As Gleeson CJ explained in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 14 [37], fairness is a practical rather than an abstract concept and in considering whether procedural fairness has been afforded, the concern of the law is to avoid practical injustice.

29    The statutory framework within which a decision under s 501CA of the Act is to be made was described by the High Court of Australia (Keane, Gordon, Edelman, Steward and Gleeson JJ) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 at 17 to 18 ([13] to [14]):

[13]    The relevant statutory scheme mandated by s 501CA of the Act comprises: the giving of relevant information to a person whose visa has been cancelled; inviting that person to make representations about why that cancellation decision should be revoked; the receipt of representations by the Minister made in accordance with that invitation; and, thereafter, the formation of a state of satisfaction, or not, by the Minister that the cancellation decision should be revoked. That scheme necessarily requires the Minister to consider and understand the representations received. What is “another reason” is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case. It follows that there may be few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii). Thus, the Minister is not obliged to take account of any non-refoulement obligations, as expressed in the Act or otherwise, when determining whether there is another reason to revoke a cancellation decision where the materials “do not include, or the circumstances do not suggest, a non-refoulement claim”. The power must otherwise be exercised reasonably and in good faith.

[14]    No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant. Based upon the representations made by an applicant, the cancellation decision and the “relevant information” given to the applicant pursuant to s 501CA(3)(a), the Minister must, when the Minister is not satisfied that an applicant passes the character test, then determine relevantly whether to be satisfied that there is “another reason” why the cancellation decision should be revoked. Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.

30    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497, Kiefel CJ, Keane, Gordon and Steward JJ (with Gageler J agreeing) described the statutory framework, in so far as is presently relevant, at 505 to 506 ([10], [14] to [15]):

Statutory scheme

10.    Section 501(3A) of the Migration Act relevantly provides that the Minister must cancel a visa that has been granted to a person if they are satisfied that the person has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record, and that the person is serving a sentence of imprisonment on a full-time basis in a custodial institution (“the original decision”). ...

…

14.    Where a person’s visa has been cancelled under s 501(3A), s 501CA provides a procedure for possible revocation of the original decision. The procedure relevantly has two aspects – as soon as practicable after making the original decision, the Minister must: give the person a written notice that sets out the original decision; and “invite the person to make representations to the Minister ... about revocation of the original decision” (emphasis added).

15.    Section 501CA(4) then provides that the Minister may revoke the original decision if the person makes representations in accordance with the invitation issued under s 501CA(3)(b) and the Minister is satisfied that the person passes the character test (as defined in s 501) or “that there is another reason why the original decision should be revoked”. ...

31    In Alphaone, the Full Court said at 590 to 591 (in a passage that was later approved by the High Court of Australia in SZBEL at 162 [32]):

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) FLR 34 at 41.

32    The Full Court then noted that this was subject to a qualification, as expressed by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 (in a passage later approved by the High Court of Australia in SZBEL at 166 [48]) as follows:

… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.

33    In SZBEL, after setting out the above passage, the High Court explained at 166 [48]:

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

34    Returning to Alphaone, the Full Court said at 591 to 592:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

35    The principles stated were conveniently summarised by Wigney J in EXT20 v Minister for Home Affairs [2022] FCAFC 72; (2022) 291 FCR 55 at 83 [141]:

141.    While procedural fairness requires a decision-maker to advise a person likely to be affected by the decision of any “issue critical to the decision which is not apparent from its nature or the terms of the statue under which it is made”, as well as any “adverse conclusion which has been arrived at which would not obviously be open on the known material”, it does not require the decision-maker to “expose his or her mental processes or provisional views to comment before making the decision in question”: Alphaone at 591-592; see also Snedden v Minister for Justice for the Commonwealth (2014) 230 FCR 82; [2014] FCAFC 156 at [176] (Middleton and Wigney JJ); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 at [22] (Gleeson CJ, Gummow and Heydon JJ); SZBEL at [29]-[32] and [48]; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] (French CJ and Kiefel J); Viane at [32].

(emphasis in original)

36    In considering whether there has been a failure to afford procedural fairness by reason of an alleged failure by a decision-maker to disclose a particular matter to a person likely to be affected by a decision, it is necessary to consider the centrality or significance of that matter to the reasoning upon which the decision was based: see Alphaone at 592 (“… any issue critical to the decision …”); Degning v Minister for Home Affairs [2019] FCAFC 67; (2019) 270 FCR 451 at 487 [154] (Thawley J, with whom Allsop CJ and Collier J agreed; and see also Allsop CJ at 455 [12] and 465 [37]).

37    In considering these questions (and the second ground of review), the Reasons must be read fairly, as a whole and not in an unduly critical manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Plaintiff M1/2021 at 512 [38] (Kiefel CJ, Keane, Gordon and Steward JJ).

Consideration

38    I turn now to consider the particular matters in respect of which the applicant contends there was a denial of procedural fairness.

Sub-ground (1)(a) – opportunity to comment upon the Minister’s interpretation of the 29 March 2016 case note

39    The first such matter is:

a.    The interpretation given to a statement he made to Corrective Services, being, “had I stuck my longest finger inside her privates for 10 minutes she wouldn’t be able to walk”.

40    That statement was set out in the 29 March 2016 case note (see [12] above). The Minister stated at D[32]:

32.    I have also had regard to Mr TIKOMAIMALEYA’s prison case note reports which state that on 29 March 2016 he stated to a correctional officer that he believed that the victim had been ‘coaxed into making accusations’ against him and had been ‘coached’ by her mother during the court proceedings. Mr TIKOMAIMALEYA also stated to the correctional officer that he didn’t believe that the victim had been sexually assaulted and that “had I stuck my longest finger inside her privates for 10 minutes she wouldn’t be able to walk” Attachment AQ. I find these comments not only repugnant, but markedly inconsistent with having remorse or insight, or making significant progress towards rehabilitation.

(emphasis in original)

41    The applicant’s complaint is that he was not provided with an opportunity to comment upon the Minister’s interpretation of the extract from the case note: “had I stuck my longest finger inside her privates for 10 minutes she wouldn’t be able to walk”. The applicant submitted that the Minister’s interpretation of this extract, as set out at D[32], was “not only repugnant, but markedly inconsistent with having remorse or insight, or making significant progress towards rehabilitation”.

42    The applicant submitted, in essence, that: (1) the extract from the 29 March 2016 case note should have been treated by the Minister as simply another denial by the applicant of the allegation of child sex abuse; (2) instead, the Minister’s reasoning (that the applicant’s comments were repugnant) in D[32] was “idiosyncratic”; (3) the Minister’s reasoning was “clearly important to the decision-making process, as suggested by its prominence it was given and their language”; (4) the Minister’s reasoning was not reasonably apparent to the applicant; (5) the Minister was obliged to invite the applicant to comment upon the extract from the 26 March 2019 case note and upon the proposition that the Minister might find that its repugnant nature carried weight on the question of the protection of the Australian community; and (6) the Minister’s failure to do so constituted a material jurisdictional error.

43    I do not accept this submission for the following reasons.

44    First, the Minister’s reasoning in D[32], when read fairly in the context of the whole of the Reasons, did not amount to anything more than a basis for a conclusion that the applicant lacked remorse and insight. The Reasons, read as a whole, do not indicate that the notion that the applicant’s comments recorded in the 26 March 2019 case note were repugnant, was a matter that carried any weight at all in the Minister’s reasoning process. To adopt the phrasing used in Alphaone and Degning (see [36] above) it was not a matter which was critical, central or significant to the Minister’s reasoning. The applicant’s written submission that the Minister’s reference to repugnancy of the applicant’s comments was “clearly important to the decision-making process, as suggested by its prominence it was given and their language” was not expanded upon (save for a passing reference to D[97], which paragraph is not supportive of the proposition that the notion of repugnancy of the applicant’s comments was operative over and above the nature of the offence and the applicant’s lack of remorse) and it is not borne out by the text of the Reasons (in which it is mentioned only at D[32]). I do not accept it.

45    Secondly, the information in the 29 March 2016 case note was information known to the applicant and submitted by him to the Minister. The Minister’s obligation to afford procedural fairness to the applicant did not extend to reminding the applicant of information that he had disclosed as part of his case for revocation of the cancellation decision: Milne v Minister for Immigration and Citizenship [2011] FCAFC 41; (2011) 120 ALD 405 at 420 and 421 [53] and [57] (Ryan, Bennett and Edmonds JJ).

46    Thirdly, there was no adverse conclusion reached by the Minister which was not obviously open on the known material. The conclusions both as “repugnancy” of the applicant’s comments and the applicant’s lack of remorse and insight were well open on the materials provided by the applicant’s solicitor to the Minister, and as such cannot be considered idiosyncratic.

47    Finally, as explained at [32] and [33] above, the Minister was not obliged to expose his mental processes or provisional views to comment by the applicant before making the decision.

48    The following passage from the judgment of Mortimer J (as her Honour then was) in CQI18 v Minister for Home Affairs [2021] FCA 1168 is apposite:

94.    The underlying rationale for the approach to the content of procedural fairness as set out in authorities such as Alphaone and Milne is that, subject to any facts which suggest this inference should not be drawn, a person affected by a decision is to be taken to understand not only the actual information they have volunteered or supplied to a decision maker, but also the natural or obvious factual consequences which might flow that information, including adverse ones.

95.    Therefore, the first question will always be – is it fair and rational to attribute the particular information to a person affected, as information they volunteered or supplied? Second, if it is, then are the adverse conclusions or inferences the decision maker has drawn from the information so natural or obvious that it is fair and rational to expect the person affected to have been aware that those conclusions or inferences might be drawn? If yes, then there may be no obligation on a decision maker to expressly put those adverse conclusions or inferences to the person affected and give them an opportunity to comment.

In the present case, it is common ground that the information in the 26 March 2019 case note was supplied to the Minister by the applicant; and the conclusion as to repugnancy was an obvious conclusion to draw. It follows that there was no obligation on the Minister to provide the applicant with an opportunity to comment upon the conclusion that the applicant’s comments as recorded in the 29 March 2016 case note were repugnant.

Sub-ground (1)(b) – opportunity to comment upon a “suggestion” that the applicant’s medical costs in Fiji would be paid by the applicant’s family or from the applicant’s superannuation

49    The second matter in respect of which the applicant contends there was a denial of procedural fairness is:

b.    The suggestion that his family would pay for medication and medical treatment in Fiji or he would have superannuation to cover it.

50    The source of this “suggestion” is D[73], which is reproduced at [22] above. The Minister’s observations in D[73] must be read in the context of the Reasons as a whole. That context includes that the Minister:

(1)    noted that the applicant was aged 67, and suffered from insulin dependent type two diabetes, advanced chronic renal disease due to diabetic nephropathy, hyper-cholesterolemia, hypertension, gout, diverticular disease, cervical spondylosis and obesity (D[62]);

(2)    noted that the applicant believed that his health would deteriorate and that he would suffer from psychological or mental health issues if removed to Fiji, a place to which the applicant claimed he had no family ties or financial support (D[62]);

(3)    referred to the medical report by Dr Sheps which stated that the prognosis in relation to the applicant’s kidney function was: “relatively poor... I anticipate that he will eventually have end stage kidney failure requiring dialysis. Accordingly I strongly recommend that he resides in a location near a large hospital where he can have access to dialysis when this becomes necessary”;

(4)    noted the applicant’s submissions that:

(a)    his health needs could not be adequately addressed in Fiji, and that he would not have the financial means to access the “limited diabetic and kidney disease treatments” in that country (D[65]);

(b)    his prospects of maintaining basic living standards had been exacerbated (sic: diminished) by the COVID-19 pandemic and the impact of the pandemic on Fiji’s economy and employment;

(c)    he would find it very difficult if not impossible to find employment in Fiji;

(5)    referred to the submissions and evidence provided by the applicant concerning the position in Fiji, including articles stating that:

(a)    whilst insulin in Fiji is meant to be provided free and distributed to individual clinics throughout the country, sometimes there is not enough stock and people are forced to buy insulin from private pharmacies at a cost of $30USD per packet of insulin strips (which is “extremely expensive”, given the average weekly wage is $100USD) (D[66]);

(b)    the authors of one article had received complaints from clients with type one diabetes about not being offered employment or being terminated from employment because of their diabetes (D[66]);

(c)    about 16 per cent of the Fijian population are diabetic and that “around 95 per cent of those who require dialysis in Fiji would die” (D[67]);

(d)    people aged in 50 to 70 years are not encouraged to undergo a kidney transplant as “most of those transplants don’t work” (D[67]);

(e)    patients use their own money to fund kidney dialysis treatment, which costs $30,000 per annum (D[68]);

(f)    each week one person dies from kidney failure and most of those could not afford dialysis treatment (D[68]);

(6)    noted a submission that the applicant would not be able to access the medical treatment needed to manage his kidney disease and diabetes, and his age and illnesses would prevent him from earning sufficient money to pay for the medical treatment (D[71]);

(7)    indicated his acceptance that:

(a)    the standard and ease of access to health services and treatment in Fiji that the applicant would have if he were to be removed from Australia would be far inferior to the available healthcare and treatment that the applicant would receive in Australia (D[72]);

(b)    as the evidence indicated, the applicant’s significant health needs, especially his kidney function, may not be adequately addressed in Fiji, which could likely result in a further deterioration of his physical and mental health (D[72]);

(c)    the applicant’s age, health issues and the poor economic situation in Fiji are all likely to be impediments to him finding employment in Fiji (D[72]);

(d)    this weighed significantly in favour of revocation (D[72]);

(8)    noted that it was not clear whether the applicant or his family could afford the cost of medication and treatment in Fiji (D[73]); and

(9)    expressed the following conclusions:

(a)    at D[75]:

Overall, I find that Mr TIKOMAIMALEYA will face substantial practical and emotional hardship upon a return to Fiji, due to his age, lack of family and social support and limited employment opportunities. I also find that Mr TIKOMAIMALEYA’s physical and mental health will deteriorate if returned to Fiji due to the limited medical services and treatment in the country equipped to address his significant health needs.

(b)    at D[94]:

I have found that a number of other factors also weigh in favour of a decision to revoke. These include the strength and nature of his ties to Australia and significant impediments to him returning to Fiji.

51    Thus, read in context, the observations in D[73]:

(1)    followed: (a) a comprehensive summary of the evidence provided and submissions made by the applicant as to the impediments he would face; and (b) the Minister’s acceptance that the applicant’s significant health needs may not be adequately addressed in Fiji, which could lead to a further deterioration in his health and which was a matter weighing significantly in favour of revocation of the cancellation decision; and

(2)    preceded the Minister’s conclusions that: (a) the applicant’s physical and mental health would deteriorate if he were to be returned to Fiji, due to the limited medical services and treatment in that country equipped to address his significant health needs; and (b) the significant impediments to the applicant returning to Fiji weighed in favour of revocation of the cancellation decision.

52    Read in this context, those observations were not a “suggestion” that the applicant’s wife and son would pay for medication and medical treatment in Fiji, or that the applicant would have superannuation to cover such expenses, much less a finding to this effect on an issue that the applicant could not have anticipated (as the applicant’s counsel submitted). Nor is such an interpretation available on the text of D[73]. Rather, the Minister’s observations at D[73] were observations that the applicant, despite having provided evidence and submissions concerning his medical conditions and the issues in obtaining adequate care absent the financial resources to do so, had not satisfied the Minister that he or his family would not be able to pay for his medical treatment in Fiji.

53    It must be borne in mind that the case set out in the applicant’s representations was the applicant’s to make against the criteria set out in Direction No. 90 (which the Minister’s Department provided to him) and that the 16 August 2021 representations (in particular) addressed those criteria. The applicant’s true complaint is that he was not told of a flaw in his case (i.e. an absence of evidence proving that the cost of the applicant’s medical treatment could not be borne by his family or be paid from his superannuation entitlements) and given an opportunity to supplement his evidence. However, it was no part of the Minister’s obligations to point out such a flaw and to invite the applicant to remedy it: see Viane at 21 [32]; EXT20 at 90 to 91 ([181] to [185]) (Snaden J) and the authorities cited therein.

54    Further, it is clear from D[94] that the Minister considered there to be significant impediments to the applicant returning to Fiji and this was a factor which weighed in favour of a decision to revoke. At D[72], the Minister recorded that this weighed significantly in favour of revocation. Thus, the observations in D[73] did not prevent the Minister from concluding that the impediments to the applicant were significant and that they should be counted in the applicant’s favour in the Minister’s exercise of his discretion. It follows that the observations made in D[73] were not a step in the Minister’s reasoning to his conclusion, much less a step which is central to that reasoning, as is required: see [36] above.

55    For the reasons set out above, the Minister did not fail to afford procedural fairness to the applicant.

e.    Ground 2 – Failure to properly engage with and consider evidence and issues concerning the impediments faced by the appicant upon removal

56    I turn now to the second ground of review which is as follows:

2.    The decision maker failed to properly engage with and consider, in the required legal sense, the evidence and issues relating to the ‘extent of impediments if removed’, arising from the Applicant’s circumstances (including ill-health, financial status, age, employability, intellectual functioning and lack of social and community ties in Fiji) and in particular failed to confront:

a.    The prospect that removal would cause the death of the Applicant; and

b.    The prospect that the Applicant would be unable to subsist in Fiji

c.    The impact the consequences of removal would have on his family in Australia.

Relevant principles

57    In Plaintiff M1/2021 the plurality explained at 508 to 509 ([22] to [27]) the approach to be taken by the Minister in considering representations made in support of the revocation of a cancellation decision:

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, 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, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

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

(footnotes omitted)

58    In ECE21 v Minister for Home Affairs [2023] FCAFC 52, the Full Court (Mortimer J, as her Honour then was, Colvin and O’Sullivan JJ) stated at [6] to [9]:

[6]    The submissions in support of those main contentions tended to criticise the Reasons as failing to fully and meaningfully engage with the representations as to the likelihood of indefinite detention in circumstances where it was a likely consequence based upon the Minister’s own findings set out in the Reasons. Particular reliance was placed upon the reasoning in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at 607. There may be difficulties with such an approach given the reasoning of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 and the criticism in those reasons of aspects of the reasoning in Omar (and other Full Court decisions of this Court).

[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, 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.

(emphasis added)

59    A conclusion that the decision-maker has not properly engaged with representations made to them will not lightly be made. The question of whether the decision-maker has engaged with representations to the requisite degree will frequently be a matter of impression reached in light of all the circumstances of the case, including the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons. This requires an assessment of whether the decision-maker has, as a matter of substance, had regard to the representations made: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; (2022) 292 FCR 15 at 27 to 28 ([47] to [49]) (Bromberg, Jackson and Feutrill JJ).

Consideration

60    The starting point is that the Minister was to undertake his assessment by reference to the case made by the applicant by his representations: Plaintiff M1/2021 at 508 [22]. In this regard:

(1)    the representations made by the applicant as to the impediments he would face if he were to be removed to Fiji are set out at [7(2)] and [11(2)] above; and the Minister addressed those considerations at D[61] to [75] and D[94] (which paragraphs are summarised at [50] above); and

(2)    the representations made by the applicant specifically as to the impact of his removal on his immediate family are set out at [7(3)] and [11(3)] above; and the Minister addressed those considerations at D[79] to [86] (see [23] above).

61    The applicant’s submissions did not point to any particular representation within the applicant’s representations that the Minister failed to address. Instead, the applicant’s submissions relied heavily upon views expressed in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at 630 [3] (Allsop CJ) and Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). The essential propositions in the applicant’s submissions are:

(1)    the Minister was required to confront the human consequences of the applicant’s removal to Fiji, namely that he would likely die from kidney disease in circumstances where he would be unable to obtain dialysis;

(2)    the Minister failed to do so and instead the Reasons were an example of “mechanical formulaic expression and pre-digested shorthand expressions” which hid “a lack of the necessary reflection upon the whole consideration of the human consequences involved”; and

(3)    thus, the Minister fell into jurisdictional error.

62    I do not accept these submissions for the following reasons.

63    First, the Minister was required to determine whether there was another reason for revoking the cancellation decision. He was required to do so by reading, identifying, understanding and evaluating the applicant’s representations: Plaintiff M1/2021 at 504 [9(1)], 508 [24] and 512 [36]. The Reasons suggest that the Minister did so. The Minister then attributed to those representations the weight he considered appropriate. More particularly, he found that the applicant faced significant impediments if removed to Fiji and that this weighed significantly in favour of the revocation of the cancellation decision (at D[72]) but that and the other considerations favourable to the applicant were outweighed by the gravity of the crime committed by the applicant (i.e. sexual assault of a child), and thus that he was not satisfied that there was another reason why the cancellation decision should be revoked.

64    Secondly, the representations made by the applicant did not, in terms, state that the applicant would likely die if removed from Australia to Fiji. At best, this is implicit, but any such implication rests on the proposition that the applicant would not be able to afford treatment in Fiji. In this regard, as discussed at [50] to [52] above, the Minister evaluated the applicant’s representations on this issue but was not satisfied that the applicant could not afford such medical treatment.

65    Thirdly, the proposition that the Minister failed to confront “the prospect that the applicant would be unable to subsist in Fiji” (see particular b.) assumes that the applicant would, in fact, be unable to subsist in Fiji and that assumption was not made out in the representations before the Minister. As noted previously, the Minister was not satisfied on the evidence before him that this would be the case (at D[73]).

66    Fourthly, the applicant’s submission that the conclusion in D[86] – that the applicant’s immediate family (particularly the applicant’s wife) would experience emotional distress and practical and some financial hardship – did not address the issue of the applicant’s likely death, is a submission which ignores the context in which that conclusion was expressed. It was the conclusion of the Minister’s reasons concerning the applicant’s links to the Australian community as per Direction No. 90 (cll 9(1)(d) and 9.4), and addressed the applicant’s representations concerning that consideration (see [7(3)] and [11(3)] above). The applicant’s representations to the Minister did not suggest, as the applicant now seeks to suggest, that the Minister should have considered the prospect of the applicant’s death as part of his consideration of that issue. The Minister, properly, undertook his assessment of this issue by reference to the case made by the applicant by his representations. Having regard to the nature, form and content of the representations made by the applicant, the Minister cannot be criticised for having not expressly considered the impact on the applicant’s family of the deterioration in the applicant’s health if he were to be removed to Fiji as part of his consideration of this issue.

67    Finally, to the extent that the applicant’s submissions rely upon the degree or quality of the Minister’s evaluation of the representations advanced by the applicant, and in particular taking into account the “human consequences” of the outcome of his decision, those submissions are misplaced following Plaintiff M1/2021: see ECE21 at [6] and [8] (set out at [58] above).

F.    conclusion

68    The application should be dismissed with costs. I will make orders accordingly.

Associate:

Dated:    20 June 2023