Federal Court of Australia

Palmer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1113

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs on an agreed or assessed basis.

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

REASONS FOR JUDGMENT

RAPER J:

Introduction

1    Section 501BA of the Migration Act 1958 (Cth) gives the Minster the power to set aside an original decision and cancel a visa that has been granted if the Minister is satisfied that the person does not pass the character test because of the operation of certain other parts of the Act: s 501BA(2).

2    Relevantly, the rules of natural justice do not apply to a decision made under s 501BA(2): s 501BA(3).

3    This is an application for judicial review of a decision of the respondent (Minister) to cancel the Class TY Subclass 444 Special Category (Temporary) visa of the applicant (Ms Palmer) pursuant to s 501BA (Minister’s Decision (MD)).

4    The Minister exercised his power following a decision of the Administrative Appeals Tribunal to set aside the decision of a delegate of the Minister not to revoke the cancellation of Ms Palmer’s visa: Palmer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 88 (T). In that decision, the Tribunal set aside and substituted the delegate’s decision such that the cancellation decision be revoked pursuant to s 501CA(4)(b)(ii) of the Act: at T[177].

5    After Ms Palmer had been successful in her application before the Tribunal, the Department of Home Affairs informed her that the Minister was intending to personally consider setting aside the Tribunal’s decision and cancelling her visa under s 501BA(2). Whilst natural justice principles are expressly prescribed under the Act as not applying with respect to a discretionary decision of this kind, the Department provided Ms Palmer with multiple opportunities to comment on information and provide evidence and submissions. Ms Palmer’s first and second grounds of review revolve around what was the statutory obligation of the Department once it had made an election to allow her to be heard.

6    Ms Palmer advances three grounds of review in this Court. By the first and second grounds, Ms Palmer contends that by the Minister inviting her, on 6 November 2020 and 21 April 2021, to provide evidence and submissions in support of her case and by failing to consider her responses to those invitations on 3 December 2020 (ground 2) and 29 July 2021 (ground 1), the Minister fell into error by: (a) denying her procedural fairness; (b) exercising unreasonably: (i) the power, incidental to the decision-making power in s 501BA(2) of the Act, to afford Ms Palmer natural justice; (ii) the power under s 501BA(2); and/or (c) failing to have regard to relevant materials in his constructive possession, being the material provided by Ms Palmer on 29 July 2021 (ground 1) or [77]–[78] of Ms Palmer’s statutory declaration made on 3 December 2020 (ground 2). Ms Palmer also contends, with respect to ground 1, that the Minister failed to act on a correct understanding of the law, namely that the rules of natural justice involve both inviting an affected person to provide material in support of their case and actually considering that material.

7    By the third ground, Ms Palmer contends that the Minister’s finding that there was “a low likelihood that Ms Palmer will reoffend” (at MD[77]) (emphasis added) was affected by illogicality, irrationality or unreasonableness (ground 3). In essence, Ms Palmer contends, absent error, the Minister could have found that there was “no”, “no non-negligible” or “an extremely low” risk of reoffending.

Preliminary matters

8    This Court has jurisdiction to review a decision made personally by the Minister pursuant to, relevantly, s 476A(1)(c) of the Act: see XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6; 289 FCR 256 at [8] (per Rares J). However, the Minister submitted, in order for the Court to have jurisdiction, Ms Palmer was required to amend her originating application so as to seek an order in the nature of prohibition against the Minister preventing him from acting upon the decision. Ms Palmer’s originating application sought an order in the nature of certiorari. The Minister contended that, having regard to ss 476A(1)(c) and 476A(2) of the Act, and s 75(v) of the Constitution, this Court only has jurisdiction where a writ of mandamus or prohibition (but not certiorari) is sought against an officer of the Commonwealth: see Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [79]–[81]. Ms Palmer made submissions to the effect that amendment was unnecessary but ultimately amended her originating application to include this form of relief. In the circumstances, given I granted her leave to file her amended application (a course which the Minister did not object to), this issue does not require determination.

9    Further, to the extent that leave is required (which Ms Palmer was of the view that it was not required), Ms Palmer seeks leave to extend time. Leave was not opposed by the Minister and it is appropriate, to the extent required, that I grant leave. Section 477A(1) of the Act requires that an application be made within 35 days of the “date of the migration decision” (defined in s 477A(3)). As noted by the Full Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; 200 FCR 207 at [50], “date of the written notice of the decision” is capable of referring both to the date that a written notice of decision bears, but also, perhaps the date upon which it was delivered to the recipient, but goes on to say that it is difficult to accept that s 477(3)(d) was intended “to apply to the date of delivery”. There was no dispute in this case that the written notice relied upon by the Minister was undated (CB825). Ms Palmer’s solicitor received that notice on 11 April 2022 at 2:25pm but four minutes later, received another email from the same officer in the Minister’s Department recalling the earlier email. Ms Palmer’s solicitors sought clarification of the same of the Minister’s representative. Ms Palmer then received, through her solicitor, another cancellation notice dated 16 May 2022. Ms Palmer electronically filed her originating application on 20 June 2022. Given these circumstances and if leave to extend time were required, I am satisfied that it is appropriate in the circumstances. The Minister would suffer no prejudice by the grant and the delay was not lengthy.

10    For the reasons that follow, I dismiss Ms Palmer’s application.

Background

11    Ms Palmer is a 46-year-old citizen of New Zealand. She first travelled to Australia in June 2001 and last arrived in Australia on 19 March 2010, however she has been ordinarily resident in Australia since July 2006. Also on 19 March 2010, the Minister granted the visa to Ms Palmer.

12    On 19 January 2018, the District Court of Western Australia convicted Ms Palmer for grievous bodily harm. Ms Palmer was charged with this offence as a result of engaging in sexual relations with an individual (in the course of her work as a sex worker) despite knowing that she had contracted HIV, where that individual consequently contracted HIV. She was sentenced to six years’ imprisonment. However, on 28 December 2018, the Court of Appeal of the Supreme Court of Western Australia reduced Ms Palmer’s sentence of imprisonment to four years.

13    On 13 March 2019, a delegate of the Minister mandatorily cancelled Ms Palmer’s visa under s 501(3A) of the Act as he or she was satisfied that Ms Palmer did not pass the character test on the basis that she had a “substantial criminal record” under s 501(6)(a) of the Act, as she had been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act) (cancellation decision). Ms Palmer then requested that the cancellation decision be revoked under s 501CA.

14    On 6 November 2019, a delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) (non-revocation decision). The delegate was not satisfied that Ms Palmer passed the character test as required under s 501CA(4)(b)(i) of the Act, nor was the delegate satisfied that there was any other reason as to why the cancellation decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act.

The Tribunal’s decision

15    On 14 November 2019, Ms Palmer applied for review of the non-revocation decision in the Tribunal on the following grounds:

•    While I accept that the offence I was convicted of is serious, I believe that the risk of me reoffending in that manner is negligible and that the risk to the Australian community is not unacceptable. As such, this primary consideration should be given neutral weight.

•    The interests of minor Australian children weigh in favour of revocation.

•    The expectations of the Australian community should be given neutral weight.

•    The extent of impediments to removal should be given significant weight in favour of revocation due to the circumstances identified in my representations.

•    The length, nature and duration of my ties to Australia should be given significant weight in favour of revocation due to the circumstances identified in my representations.

16    On 30 January 2020, the Tribunal ordered that the non-revocation decision be set aside, and substituted with a decision that the cancellation of Ms Palmer’s visa pursuant to s 501(3A) of the Act be revoked under s 501CA(4)(b)(ii) of the Act: at T[177].

The Minister’s decision

Opportunities for Ms Palmer to comment on information

17    On 24 August 2020, the Department wrote to Ms Palmer and informed her that the Minister was intending to personally consider setting aside the Tribunal’s decision and cancelling her visa pursuant to s 501BA(2) of the Act.

18    The Department informed Ms Palmer that it believed she had a “substantial criminal record” within the meaning of s 501(7)(c) of the Act, and as a result it believed she did not pass the character test by virtue of s 501(6)(a) of the Act. Further, the Department informed Ms Palmer that her failure to declare a prior criminal conviction on an incoming passenger card may be taken into account by the Minister as a factor which indicates that Ms Palmer will “engage in criminal or other serious conduct further to the offending” which has previously been recorded. The Department also advised Ms Palmer that she may wish to consider Ministerial Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79). The Department noted that, whilst the Minister “is not required to give consideration to Direction 79”, it does provide “a broad indication of the types of issues that he may take into account”. The Department also invited Ms Palmer “to comment on the information which indicates that you may not pass the character test”.

19    On 6 November 2020, the Department again wrote to Ms Palmer inviting her to comment on further information the Department had received, including the Department’s Notes for guidance for Human Immunodeficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) dated July 2020 (July 2020 Report), as well as to comment or provide further information on whether the Minister should exercise his power to set aside the Tribunal’s decision and cancel Ms Palmer’s visa.

20    Relevantly for the purpose of ground 2, on 3 December 2020, Ms Palmer made a statutory declaration which supported her submissions to the Minister in relation to the proposed visa cancellation. In this statutory declaration, amongst other things, Ms Palmer declared that should she be allowed to remain in Australia, she could contribute to the Australian community by mitigating some of the cost of providing treatment for HIV to the victim of her offence:

77.     I also understand that the Minister is considering the cost of HIV treatment for the victim of my offence as a reason to cancel my visa in the National Interest.

78.     All I can say in this regard is that whether my visa is cancelled or not, that cost is likely to be the same. However, if I were given the opportunity to remain in Australia, I could make contributions to the Australian community which could mitigate some of that cost. This could be through my paying taxes in Australia as well as through my non-monetary contributions to the community such as my work with River and Shilo’s children as well as through my work in the HIV sector. If, however, I was to return to New Zealand, there would be no way for me to mitigate this cost.

21    By ground 2, Ms Palmer contends that, whilst the Minister considered in his decision other aspects of this Declaration, no consideration was taken of these two paragraphs.

22    Ms Palmer provided an additional submission, dated 11 January 2021, to the Department regarding the proposed exercise of the Minister’s discretion to cancel Ms Palmer’s visa under s 501BA(2) of the Act.

23    On 1 February 2021, the Department again wrote to Ms Palmer inviting her to comment on further information that it had received which may be taken into account when determining whether to cancel her visa. Relevantly, the Department had been informed that Ms Palmer’s parole had been suspended on 16 December 2020 due to illicit substance use. Ms Palmer was returned to criminal detention on 1 January 2021, and she was released on 31 January 2021 following a decision to cancel the suspension of Ms Palmer’s parole.

24    On 21 April 2021, the Department again wrote to Ms Palmer inviting her to comment on further information it had received. It also provided Ms Palmer with a copy of Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), which replaced Direction 70 on 15 April 2021.

25    On 19 May 2021, Ms Palmer’s legal representatives responded to the Department’s letters sent on 1 February 2021 and 21 April 2021, providing a further statutory declaration made by Ms Palmer on 19 May 2021. Ms Palmer’s legal representatives indicated to the Department that they were “still in the process of gathering some documents” and they hoped to provide them to the Department “in no more than 2 weeks” as well as some further “brief” submissions.

26    Relevant to ground 1, on 29 July 2021, Ms Palmer’s legal representatives provided further submissions and material to support Ms Palmer’s case. Ms Palmer’s legal representatives received an automatic reply via email from the Department on the same day. In those submissions, Ms Palmer’s representatives submitted that Ms Palmer had taken active steps to address her use of illicit drugs (including attending “weekly to monthly counselling with a counsellor to manage her drug use”), that she had secured employment with a cleaning company, and that Ms Palmer did not pose a risk of harm to the Australian community given her “perfect adherence to her HIV medication was has caused her viral load to remain undetectable”, which in turn meant that she could not “pass on HIV to anyone else”.

27    It was admitted by the Minister that the Minister had received those supplementary submissions and materials in support of Ms Palmer’s case (provided on 21 July 2021), but that those particular documents were not brought to the Minster’s personal attention before he made the decision; and the Minister therefore did not consider them.

The decision

28    On 5 April 2022, the Minister set aside the Tribunal’s decision and cancelled Ms Palmer’s visa pursuant to s 501BA of the Act, as he was satisfied that Ms Palmer did not pass the character test in s 501(6)(a) of the Act on the basis of s 501(7)(c) of the Act, and as he was satisfied that it was in the national interest to cancel Ms Palmer’s visa.

29    The Minister noted that the rules of natural justice do not apply to a decision made under s 501BA(2) pursuant to s 501BA(3): at MD[9]. Nonetheless, the Minister had given Ms Palmer an opportunity to be heard given the “passage of time since the original decision was made” and to obtain more up-to-date information regarding Ms Palmer’s circumstances: at MD[10]. The Minister also had regard to Direction 90, noting that whilst Direction 90 does not apply in relation to decisions made under s 501BA of the Act, Ms Palmer had made representations on the basis of Direction 90 in its previous iteration (namely, Direction 70): at MD[11].

30    Given Ms Palmer’s conviction of grievous bodily harm (followed by a reduced prison sentence of four years), the Minister found that Ms Palmer did not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(c) of the Act, meaning the criterion in s 501BA(2)(a) of the Act was satisfied: at MD[15]. The remainder of the Minister’s Decision concerned the criterion in s 501BA(2)(b), namely whether the cancellation is in the national interest.

31    The Minister noted that “national interest” is not defined in s 501BA(2)(b), and that courts have been reticent to attempt to define the meaning of “national interest” in statutory contexts, and have instead determined that whether something is or is not in the national interest is largely a political question: at MD[16]–[18].

32    The Minister identified that matters of national interest included the protection of the community, the expectations of the Australian community, and the risk of an individual reoffending: at MD[19]–[20]. With respect to Ms Palmer specifically, the Minister found that a consideration of the national interest included “the costs to the community of ongoing medical support and loss of productivity to further individuals should Ms Palmer again conceal her health status from a sexual partner and infect them with HIV”: at MD[20]. The Minister referred to the July 2020 Report, which estimated the total costs for medical and pharmacological treatment for an individual with HIV as being between $55,303 and $309,565 over 10 years: at MD[21].

Protection of the community

33    In determining whether it was in the national interest to cancel Ms Palmer’s visa, the Minister considered the need to protect the Australian community: at MD[22].

34    First, with respect to the seriousness of Ms Palmer’s criminal conduct, the Minister found that grievous bodily harm was “a very serious offence”, noting the sentencing remarks of the District Court of Western Australia: at MD[24]–[28]. The Minister emphasised the effects Ms Palmer’s offence had on the victim: Her victim is required to take medication for the rest of his life, he fears he will be the subject of stigma, he has hidden his diagnosis from his family and friends, he no longer believes that he can get married, and he feels depressed and worthless as a result of contracting HIV. Given the same, the Minister found that Ms Palmer’s actions “demonstrated a wilful disregard for the welfare of the victim”: at MD[29]–[30]. The Minister also considered the sentence imposed on Ms Palmer to further indicate the seriousness of her offending: at MD[31]–[32].

35    The Minister also considered Ms Palmer’s other criminal offending. In particular, the Minister was concerned that after the Tribunal’s decision, on 30 July 2020, Ms Palmer was found guilty of another offence (“no authority to drive (never held)” (emphasis in original)): at MD[34]. The Minister also noted that Ms Palmer’s parole was suspended on 16 December 2020 due to illicit substance use, and that following her release from criminal detention on 31 January 2021, she had used illicit drugs on several occasions: at MD[36]. Whilst the Minister acknowledged that Ms Palmer’s other criminal offending was “less serious than her primary offending”, in the Minister’s view there was “a cumulative effect of Ms Palmer’s minor infractions” (at MD[38]), and that Ms Palmer’s other criminal offending was “indicative of her disrespect for Australia’s laws”: at MD[39].

36    Secondly, with respect to the risk posed to the Australian community, the Minister considered the nature of the harm to individuals or the Australian community should Ms Palmer reoffend, and the risk of further criminal or other serious conduct, taking into account the likelihood of Ms Palmer reoffending: at MD[40]. The Minister found that should Ms Palmer reoffend, members of the Australian community could be exposed to physical and psychological harm, and the community as a whole could be exposed to economic harm: at MD[42].

37    In assessing the likelihood of Ms Palmer reoffending, the Minister considered the factors contributing to Ms Palmer’s past conduct. The Minister noted Ms Palmer’s representations regarding her drug use, childhood trauma and mental illness: at MD[44], [46]. However, the Minister found that Ms Palmer’s offending was “due to her denial of her HIV status, her unwillingness to disclose her status and her reckless refusal to accept the possibility of transmission”. It was the Minister’s view that the other factors did not absolve Ms Palmer of responsibility for the offending: at MD[47].

38    The Minister also considered any remorse demonstrated by Ms Palmer and rehabilitation. The Minister referred to the medical evidence which suggested that, if Ms Palmer returned to illicit drug use, the “potency of her HIV medication would ensure it would remain effective” even if she became non-compliant with her treatment regime: see MD[49]–[53]. The Minister commended Ms Palmer for taking the opportunity to address her illicit drug use whilst imprisoned (at MD[55]). However, the Minister noted that, contrary to Ms Palmer’s statutory declaration made on 3 December 2020, she had relapsed into drug use (however, Ms Palmer acknowledged later that this statement was an unintentional error). Nonetheless, the Minister could not discount the possibility that Ms Palmer “intended to attempt to conceal her return to drug use from the Department”: at MD[56]. The Minister also found that Ms Palmer’s return to drug use was of great concern, and did not demonstrate a willingness to comply with Australia’s laws: at MD[59]. Ultimately, the Minister found that Ms Palmer’s engagement with a rehabilitation program and medical supports reduced the likelihood of reoffending, however found that Ms Palmer’s return to drug use increases the likelihood of her reoffending: at MD[63].

39    The Minister was of the view that Ms Palmer increased the likelihood, and harm, of her offending by refusing to acknowledge that she was aware of her HIV-positive status multiple times: at MD[64]. The Minister disagreed with representations made on Ms Palmer’s behalf that she was “otherwise a good person who for a brief period behaved negligently due to fear of stigma and the influence of addiction” on the basis that Ms Palmer exposed her victim to HIV over a period of 10 months, and then maintained her denial for more than three years: at MD[65]. The Minister considered that while Ms Palmer had “some remorse” for her offending and the impact it has had on the victim, her remorse was “self-serving”: at MD[68]. The Minister also considered that Ms Palmer’s repeated disregard for the safety of her victim, her relocation in order to continue sex work, and her history of other offending “move [her conduct] from a reckless disregard for the safety of individuals and the community to a wilful and negligent disregard”: at MD[70]. The Minister did commend Ms Palmer for engaging in community organisations which have educated Ms Palmer and others as to HIV and harm minimisation practices, however reiterated the fact that Ms Palmer had been involved in a subsequent offence and her parole had been suspended twice since she engaged with community organisations: at MD[72].

40    The Minister came to the following conclusion with respect to the risk posed by Ms Palmer to the community (at MD[77]):

I have found that the nature of Ms Palmer’s conduct is very serious. I have further found that grievous bodily harm by infecting another with HIV has the potential to cause physical and psychological injury to members of the Australian community and subsequent financial harm to the Australian community as a whole. On balance I consider there to be a low likelihood that Ms Palmer will reoffend. Nevertheless, I considered that, should Ms Palmer engage in similar conduct again it may result in psychological and physical harm to members of the community and subsequent financial harm to the Australian community as a whole. I have given this significant weight towards a finding that it is in the national interest to cancel Ms Palmer’s visa.

(Emphasis in original.)

41    This conclusion is the subject of ground 3.

Expectations of the Australian community

42    The next factor that the Minister identified in considering whether it was in the national interest to cancel Ms Palmer’s visa was the expectations of the Australian community. The Minister summarised how Direction 90 explained what the Australian community’s expectations were:

78.     As explained in the Direction, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

79.     As explained in the Direction, the Government’s view is that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

43    The Minister upheld the principle that the Australian community would expect that non-citizens who commit serious crimes in Australia, such as grievous bodily harm, can and should have their visa cancelled, and applied that principle to Ms Palmer: at MD[83].

44    In coming to his conclusion on “national interest considerations”, the Minister summarised the submissions made by Ms Palmer’s legal representative and her supporters (at MD[87]–[93]), and concluded as follows:

94.     In deciding whether I am satisfied that it is in the national interest to cancel Ms Palmer’s Class TY subclass 444 Special category (Temporary) visa, I am required to make an evaluative judgement. I am entitled to make that judgement having regard to a range of matters that may inform the national interest, the content of the national interest being in large part a political question.

95.     In the specific case of Ms Palmer, having regard to the information concerning the serious nature of Ms Palmer’s criminal conduct involving causing grevious [sic] bodily harm by concealing her health status and subsequently infecting her victim with HIV, my finding regarding the serious risk to the community posed by Ms Palmer, as well as the expectations of the Australian community in relation to persons involved in such conduct, I concluded that the use of my discretionary power to set aside the original decision of the AAT and cancel the visa, is in the national interest.

96.     I consider it highly unlikely that my present decision to cancel Ms Palmer’s visa would result in her removal to New Zealand in breach of any international non-refoulement obligations.

97.     Having regard to all of the above, I conclude that the use of my discretionary power to cancel Ms Palmer’s Class TY subclass 444 Special category (Temporary) visa is in the national interest.

Other considerations

45    The Minister then went on to consider whether there were other relevant considerations that may support not setting aside the Tribunal’s decision and not cancelling Ms Palmer’s visa.

46    With respect to the best interests of minor children, there were several children in Ms Palmer’s life with whom she had a caring relationship. The Minister found that that it was in the best interests of these children that Ms Palmer’s visa not be cancelled, however given Ms Palmer did not have a parental relationship with the children, and due to her imprisonment, detention, and returns to prison, the Minister found that the harm to their best interests was limited: at MD[106].

47    The Minister also considered the extent of impediments (Ms Palmer would face) if removed to New Zealand. The Minister considered Ms Palmer’s age and health: at MD[108]–[115]. The Minister found that it was unlikely that Ms Palmer would face any linguistic barriers: at MD[116]. However, the Minister did find that Ms Palmer would face “practical, financial and emotional hardship upon a return to New Zealand, due to her lack of family and social support, and the impact of changes to her medical services and treatment options”: at MD[121]. The Minister also found that Ms Palmer would have access to health, treatment and welfare services in New Zealand, but could suffer disadvantage if her medical records were not available to her in New Zealand: at MD[122].

48    With respect to Ms Palmer’s links to the Australian community, whilst Ms Palmer did not have any immediate biological family members in Australia (at MD[123]), the Minister recognised the negative impact visa cancellation would have on Ms Palmer’s other family members and friends in Australia, and noted that Ms Palmer has developed other ties to the Australian community. The Minster gave this consideration moderate weight: at MD[125]–[128]. The Minister also considered how Ms Palmer’s visa cancellation would impact Australian community organisations with whom she was connected, but found that Ms Palmer’s visa cancellation would not significantly compromise the organisations’ ability to perform their work: at MD[129]–[132].

49    The Minister then concluded, noting that whilst he had found it was in the best interests of minor children that Ms Palmer’s visa should not be cancelled (at MD[134]), and that other factors weigh against cancelling her visa (including Ms Palmer’s strength, nature and ties to Australia and the impediments to returning to New Zealand) (at MD[135]), given the serious nature of Ms Palmer’s crime, the expectations of the Australian community, and the risk of harm posed by Ms Palmer to the Australian community, the considerations favouring cancellation outweighed the considerations against cancellation, and therefore exercised his discretion pursuant to s 501BA of the Act to cancel Ms Palmer’s visa: see MD[136]–[141].

Grounds of review

50    Ms Palmer advances three grounds of review in her amended application, for which leave was granted on the second day of hearing (not opposed by the Minister) which are extracted below:

1.     The decision of the Minister is affected by a denial of procedural fairness, in that the Minister By invitinged the Applicant to comment on information which may be taken into account in deciding whether to cancel her visa but failinged to consider the Applicant’s response to that invitation, the Minister fell into jurisdictional error, in that he:

(a)     denied the Applicant procedural fairness in the manner particularised below;

(b)     exercised unreasonably:

(i)     the power, incidental to the decision-making power in section 501BA(2) of the Migration Act 1958 (Cth) (Act), to afford the Applicant natural justice,

(ii)     the power in section 501BA(2);

(c)     failed to have regard to relevant materials in his constructive possession, being the material provided by the Applicant on 29 July 2021; and/or

(d)     failed to act on a correct understanding of the law, being that the rules of natural justice involved not only inviting an affected person to provide material in support of their case but also considering that material.

Particulars of procedural unfairness

(a)     On 21 April 2021, the Minister, in the exercise of his power under section 501BA of the Migration Act 1958 (Cth) (Act), invited the Applicant to comment on the “Government of Western Australia Department of Justice Adult Community Corrections report dated 26 March 2021”, because such information “may be taken into account when making the decision whether to revoke the original decision to cancel [the Applicant’s] visa under s501CA [sic] of the Act”.

(b)     On 29 July 2021, the Applicant’s solicitor sent to the Minister by e-mail a response to that invitation in excess of three pages, together with three enclosures. The response (and its enclosures) contained substantial, clearly articulated claims relying on established facts, including that the Applicant had taken active steps to manage her use of illicit drugs; she had secured employment; and that her relapse into illicit drug use did not evince an increase in the risk that she presented to the Australian community as the evidence established that she continued to receive HIV medication which enabled her to maintain an undetectable viral load.

(c)     The Minister failed to take the Applicant’s material into account in making the decision to cancel her visa under section 501BA(2) of the Act: the response was not listed in the Minister’s reasons for decision or in the “Index of Relevant Material for Ms Palmer”.

(d)     The failure by the Minister to consider the Applicant’s response caused the Applicant practical injustice and/or was material to the decision to cancel her visa. Had the material been taken into account, the Minister could realistically have made a different decision, including for the reason that the Applicant did not present any, or any non-negligible, risk of reoffending.

2.     The decision of the Minister is affected by a denial of procedural fairness, in that the Minister By invitinged the Applicant to comment on information which may be taken into account in deciding whether to cancel her visa but failinged to consider the Applicant’s response to that invitation, the Minister fell into jurisdictional error, in that he:

(a)     denied the Applicant procedural fairness in the manner particularised below;

(b)     exercised unreasonably:

(i)     the power, incidental to the decision-making power in s 501BA(2) of the Act, to afford the Applicant natural justice,

(ii)     the power in section 501BA(2); and/or

(c)     failed to have regard to relevant materials, being [77]-[78] of the Applicant’s statutory declaration made on 3 December 2020.

Particulars of procedural unfairness

(a)     On 6 November 2020, the Minister, in the exercise of his power under section 501BA of the Act, invited the Applicant to comment on certain information, including “the cost to the community of medical treatment required by any victim” as outlined in the ‘Notes for guidance for Human Immunodeficiency Virus (HIV)/Acquired Immune Deficiency syndrome (AIDS)’ published by the Department of Home Affairs in July 2020.

(b)     On 3 December 2020, the Applicant provided to the Minister a statutory declaration made on the same date, which contained material evidence and/or a substantial, clearly articulated claim relying on established facts, namely, that, if she were given the opportunity to remain in Australia she could make a contribution to the Australian community which could mitigate some of the cost of providing HIV treatment to the victim of her offence.

(c)    While the Minister considered that the cost to the Australian community of the provision of treatment to those living with HIV was relevant to his assessment of the national interest (at [20]-[21]), he failed to take this material into account in his consideration of the national interest, or at all.

(d)     Had the Applicant’s material been taken into account, the Minister could realistically have made a different decision, whether because it was not in the national interest to cancel the Applicant’s visa or because the residual discretion in section 501BA(2) should not be exercised adversely to her.

3.     The finding by the Minister that there is “a low likelihood that Ms Palmer will reoffend” (at [77]) was so illogical, irrational or unreasonable that the decision to cancel the Applicant’s visa is affected by jurisdictional error.

Particulars

(a)     In finding that the Applicant’s risk of re-offending was “low”, the Minister took the following matters into account:

(i)     The Applicant had, since her visa was reinstated by the Administrative Appeals Tribunal (Tribunal) on 30 January 2020, used illicit drugs (at [48], [51]-[52], [58]-[59], [63]).

(ii)     The Applicant had, prior to accepting her HIV diagnosis and commencing treatment, taken illicit drugs and was reckless in her approach to her own sexual health and that of her sexual partners (at [49], [53]).

(iii)     The Applicant had engaged in unrelated offending (at [54], [69]-[70]).

(iv)     One of the Applicant’s treating doctors, Dr Olga Patricia Martinez, gave oral evidence to the Tribunal that “if Ms Palmer were to return to methamphetamine use it would be ‘of concern’ however ‘quite likely’ and ‘quite possible’ that Ms Palmer would continue to maintain her antiretroviral treatment” (at [50]).

(b)     None of these matters was logically or rationally probative of the Applicant posing a “low” risk of re-offending in circumstances where the evidence before the Minister established that:

(i)     the use of illicit drugs did not itself increase the risk of transmission of HIV to others;

(ii)     the Applicant did not pose any risk of transmitting HIV to others while she took treatment resulting in her viral load being undetectable; and

(iii)     the Applicant had, both prior to and during the times that she relapsed into illicit drug use, taken treatment which resulted in her viral load being undetectable.

(c)     Further, the Minister misunderstood Dr Martinez’s oral evidence before the Tribunal. Dr Martinez’s evidence was that “it would be of concern if there was evidence that the use of the methamphetamine led to [the Applicant] not being adherent to her antiretroviral medication” and that “there would be of [sic] concern from the point of view of what other effect the methamphetamines may have on [the Applicant’]s general health but not necessarily be in relation to whether she would continue to adhere to the antiretroviral medications or not” [emphasis added].

(d)     Had the Minister realised that the matters listed in paragraph (a) above were not rationally probative of the Applicant posing a “low” (that is, some non-negligible) risk of reoffending or not misunderstood Dr Martinez’s oral evidence before the Tribunal, he could realistically have reached a different conclusion as to the Applicant’s risk of reoffending. For example, the Minister could realistically have found that the Applicant posed “no”, “no non-negligible” or “an extremely low” risk of reoffending. Had the Minister so found he could realistically have placed less weight on the risk posed by the Applicant to the Australian community and formed a different view either as to whether it was in the national interest to cancel her visa or whether the residual discretion in section 501BA(2) should be exercised adversely to her.

Summary of the relevant statutory provisions and relevant legal principles

51    The Minister must cancel a visa that has been granted to a person if that person does not pass the character test on the basis that they have a substantial criminal record (s 501(3A)(a) of the Act). The term “substantial criminal record” is prescribed in s 501(6)(a) and includes, relevantly, when the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act). The relevant parts of s 501 are extracted as follows:

501     Refusal or cancellation of visa on character grounds

…

(3A)     The Minister must cancel a visa that has been granted to a person if:

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

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

…

Character test

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

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

…

Substantial criminal record

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

…

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

52    If a person’s visa is mandatorily cancelled under s 501(3A) of the Act, the mandatory cancellation may be revoked if the criteria set out in s 501CA are satisfied. Section 501CA is extracted as follows:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)     This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)     For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)     would be the reason, or a part of the reason, for making the original decision; and

(b)     is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)     As soon as practicable after making the original decision, the Minister must:

(a)     give the person, in the way that the Minister considers appropriate in the circumstances:

(i)     a written notice that sets out the original decision; and

(ii)     particulars of the relevant information; and

(b)     invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)     The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

(5)     If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)     Any detention of the person that occurred during any part of the period:

(a)     beginning when the original decision was made; and

(b)     ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)     A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Note:     For notification of decisions under subsection (4) to not revoke, see section 501G.

53    Pursuant to s 501BA of the Act, the Minister has the power to set aside a decision made by the Tribunal to set aside a decision made under s 501CA of the Act that revokes a decision to mandatorily cancel a person’s visa made under s 501(3A) of the Act. Section 501BA of the Act is extracted as follows:

501BA     Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA

(1)     This section applies if:

(a)     a delegate of the Minister; or

(b)     the Administrative Appeals Tribunal;

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

Action by Minister—natural justice does not apply

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

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

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

(ii)     paragraph 501(6)(e); and

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

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

Minister’s exercise of power

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

Decision not reviewable under Part 5 or 7

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

Note:    For notification of decisions under subsection (2), see section 501G.

54    The “national interest” criterion in s 501BA(2)(b), which also appears in the Minister’s personal refusal or cancellation powers in ss 501(3), 501A(2)–(3) and 501B(2), is “broad and evaluative” (see Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [156]–[157]), although not without limits it is largely a “political question”: see Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40]; see also Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231 at [18]. The Act does not identify particular factors which the Minister must have regard to in determining whether a visa cancellation is in the national interest (see Vargas v Minister for Home Affairs [2021] FCAFC 162; 286 FCR 387 at [61]; Gubbay v Minister for Home Affairs [2020] FCA 1417 at [56]; Candemir v Minister for Home Affairs [2019] FCAFC 33; 268 FCR 1 at [20]–[21], [24]) and as such, the Minister may determine what matters are to be taken into account when assessing the national interest: see Carrascalao at [158].

Consideration

Grounds 1 and 2

55    The parties agreed the following with respect to the power under s 501BA: By operation of s 501BA(3), the rules of natural justice do not apply to a decision made under s 501BA(2). However, this does not preclude the Minister from affording natural justice to non-citizens when exercising his or her power under s 501BA(2): Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 at [21], [23]–[26], [61], [63]; Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555 at [42]; Vargas at [29]–[30]. Further, the effect of s 501BA(3) does not remove the implied power to “seek, or request, further information” before making a decision under s 501BA(2): see Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [79], quoted in Vargas at [33]. This power has been described as a “facilitative power to assist the Minister in reaching the correct or preferable decision and to assist the Minister to ensure she or he has sufficient probative material to support the findings and conclusions she or he may be inclined to make”: see Chamoun at [79], quoted in Vargas at [33].

56    Notably the Full Court observed in Ibrahim, at [26]:

…It is for the Minister to decide, within the limits of the Act, how he or she will go about making the decision contemplated by s 501BA(2). Just as the Assistant Minister had had the power to seek more information from the Department before making the decision, so also did he have the power to seek information from the appellant.

57    As to the relevant factual substratum, it was agreed that: (1) the Minister invited Ms Palmer to provide submissions, (2) the Minister said they would be taken into consideration if received before a decision was made, (3) the Department received further short supplementary submissions and supporting material (in addition to other lengthy submissions, statutory declarations and further material).

58    It is accepted, with respect to the 29 July 2021 submission (the subject of ground 1) that those particular documents were not brought to the Minister’s attention before he made the decision, and the Minister did not consider them in making his decision. By contrast, with respect to [77]–[78] of Ms Palmer’s statutory declaration (the subject of ground 2), it is disputed whether the Minister considered or failed to consider the evidence or the “substantial, clearly articulated claim”. This factual matter will be resolved below.

Purported denial of procedural fairness

Areas of disagreement

59    Where the parties depart principled company is whether, according to Ms Palmer, when the Minister decides to afford natural justice (by asking for information or submissions), he or she cannot thereafter ignore or overlook any evidence or submissions provided in response to that invitation. Ms Palmer submits that a concomitant of the right to be heard is the right to have one’s case considered: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (per Gummow and Callinan JJ, Hayne J agreeing at [95]).

60    Ms Palmer submits if it were otherwise, the power to afford natural justice to the non-citizen would be meaningless, at least where the decision-maker has not informed the affected person that they are proposing to change course (citing NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326). However, in any event, Ms Palmer contends that apart from the denial of natural justice, overlooking or ignoring evidence or submissions provided in response to an invitation from the Minister would give rise to other jurisdictional errors such as a failure to consider relevant facts or materials (see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [27]) or an unreasonable exercise of discretion under s 501BA(2).

61    By contrast, the Minister submitted that any choice by the Minister to afford an individual procedural fairness (like in Ms Palmer’s case) does not erect a new statutory condition on the Minister’s decision-making authority, namely, requiring the Minister to consider responses to invitations to comment, for which breach will result in jurisdictional error. This is to say, the Minister, by his or her conduct, cannot rewrite the statutory limits of his or her discretionary decision-making. The limits on his or her decision-making, and therefore what conduct amounts to jurisdictional error, remain matters which are to be identified following the interpretation of the relevant statute, not following an interpretation of the Minister’s conduct in a particular case. Further, at the first hearing, the Minister submitted that Ms Palmer’s submission was tantamount to reading a “conditionality” into s 501BA(3).

62    Further, with respect to ground 1, the Minister submitted, in the alternative, even if the circumstances of Ms Palmer’s case amount to procedural unfairness, this did not amount to jurisdictional error. The Minister noted that this Court can only review a decision made under s 501BA for jurisdictional error: see ss 5E, 474, 476A(1)(c) of the Act. Whether a legal or procedural error is characterised as jurisdictional error requires an exercise in statutory interpretation of the relevant power (citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [30]).

63    In Ms Palmer’s supplementary submissions filed in advance of the further hearing, Ms Palmer rejected the Minister’s submission that her argument involved reading words into s 501BA(3). Rather, Ms Palmer submitted that s 501BA(3) has its limits, with one limitation being that the operation of s 501BA(3) is “spent” where the Minister has decided to afford a visa-holder natural justice. Ms Palmer submitted that purportedly analogous provisions in the Act have been construed in the same way, and relied on Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 97 ALJR 214 (which considered s 351 of the Act) and Plaintiff M76/2013 v Minister for Immigration and Citizenship [2013] HCA 53; 251 CLR 322 at [24]–[26], [88]–[91], which considered s 46A. In Davis at [98], Gordon J held as follows:

Section 351 is a conferral of statutory executive power on the Minister. The Minister does not have a duty to consider whether to exercise the power under s 351(1) in any circumstances [s 351(7)]. This means the Minister cannot be compelled to consider whether to exercise the power. It must be recognised, however, that a Minister might put themselves in a position where they are committed to following a certain process and may become obliged to consider exercising the power.

(Emphasis added.)

64    Ms Palmer’s counsel sought to apply the reasoning in Plaintiff M76, in which the High Court considered s 46A of the Act, to Ms Palmer’s case and s 501BA. Section 46A conferred a power on the Minister to permit an unauthorised maritime arrival to make a valid application for a visa (which Ms Palmer’s counsel referred to as “lifting the bar”). In Plaintiff M76, at [24], French CJ rejected the Minister’s submission that the Minister could terminate the consideration process at any time, and held that once the Minister “had decided to consider whether or not to exercise his power … he must decide to exercise it or not to exercise it”. Ms Palmer also referred me to [47]–[55] of Hayne J’s reasons, and submitted that [55] was “a complete answer” to the Minister’s submissions. Ms Palmer contended that by the reasoning in [55], Hayne J held that there is no requirement for the Minister to exercise his or her power to “lift the bar”, however once the Minister has decided that they will consider whether to exercise their power to lift the bar, s 46A(7) is “exhausted”. Ms Palmer submitted that this reasoning was equally applicable to s 501BA, namely, the operation of s 501BA(3) provides no immunity to a Minister who has, as in this case, committed himself to doing something which he was not obliged to do and then failed to follow it through.

Resolution regarding the allegation of procedural unfairness with respect to grounds 1 and 2

65    For the following reasons, I do not accept Ms Palmer’s contention that the Minister was compelled, once he asked for submissions, to consider Ms Palmer’s responsive submissions and material (and as a result there has been a denial of procedural fairness).

66    I accept the Minister’s submission that, as a matter of statutory construction, where the Minister by his or her conduct invites further submissions, that the Minister is not thereafter compelled to consider that material. A decision to afford an individual procedural fairness (like in Ms Palmer’s case) does not impose a new statutory condition on the Minister’s decision-making authority (namely, requiring the Minister to consider responses to invitations to comment), let alone one whose breach will result in jurisdictional error. The Minister cannot, by his or her conduct, rewrite the statutory limits of his or her discretionary decision-making: cf Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207–219 (per Gummow J). The limits imposed upon the Minister’s decision-making capability are to be identified following interpretation of the impugned statute, not following an interpretation of the Minister’s conduct in a particular case.

67    Section 501BA(3) expressly states, without proviso, that the rules of natural justice do not apply to a decision under s 501BA(2) regardless of any conduct of the Minister. The effect of section 501BA(3) is broad and by its operation allows a Minister to override a decision of a delegate or the Tribunal without providing any notice to the visa-holder, which is obviously procedurally unfair but the legislation clearly allows it to occur.

68    I do not accept Ms Palmer’s argument that the requirement of s 501BA(3) is “spent”, or perhaps more accurately, given there is no intrinsic power to dispense with legislation by the Executive (Port of Portland Pty Ltd v State of Victoria [2010] HCA 44; 242 CLR 348 at [9]–[13]), that subs (3) is exhausted and has no application after a particular point. There is nothing within the text, its context or purpose to read the subsection as having this effect. It is my view that the effect of subs (3) continues to subsist throughout the decision-making process. As submitted by the Minister, subs (3) does not identify a contingency: It does not identify a part of the decision-making process or comprise a “sometimes” obligation.

69    I do not consider the authorities Ms Palmer relied upon as being analogous and instructive when interpreting this provision. Reliance on Davis is not compelling: The brief passage in Gordon J’s judgment, relied upon by Ms Palmer, relates to a different provision and does not appear to form part of the majority reasoning. Furthermore, it is expressed in equivocal terms – the Minister might put themselves in a position where they are committed to following a certain process, citing Plaintiff M76 with the abbreviation “cf” which may be read in differing ways. Further, the reasoning in Plaintiff M76 concerned the particular power under s 46A of the Act. As the Minister submitted, in both Plaintiff M76 and Davis, the High Court was construing two decisions: first, a procedural decision to consider to exercise the power, and secondly, a substantive decision. This is not the case here. As recognised by the Full Court in Vargas at [32], the only “decision” being made under s 501BA(2) is whether to cancel the visa. There was no anterior decision to be made as to whether the Minister is, or is not, satisfied that natural justice should be afforded.

70    It is worthwhile for the purpose of considering the other species of purported jurisdictional error relied upon under these two grounds to determine first whether the material, the subject of ground 2, was in fact considered by the Minister.

Whether Ms Palmer’s statutory declaration was not considered (ground 2)

71    For the following reasons, contrary to Ms Palmer’s contention, I find that the Minister did consider [77]–[78] of Ms Palmer’s statutory declaration (the subject of ground 2).

72    Ms Palmer submits that in her statutory declaration made on 3 December 2020, she explained that she could make contributions to the Australian community to mitigate the cost of HIV treatment for the victim of her offence by paying taxes and through non-monetary contributions to the community, if she were given the opportunity to remain in Australia (at [77]–[78]). Ms Palmer contends that this particular part of her statutory declaration was not considered by the Minister. Ms Palmer contended that this evidence responded directly to the Minister’s statement, in a communication from the Minister’s Department to Ms Palmer that he may take the July 2020 Report into account. Ms Palmer submitted that had Ms Palmer’s evidence been taken into account, it likely would have been mentioned at MD[20]–[21]. Ms Palmer submits that the Minister’s “bare reference” to her statutory declaration at MD[92] does not immunise the decision from jurisdictional error, as the submission was not properly considered: Merely noting a submission of substance is not akin to considering it, and the Minister was required to at least evaluate the submission: Plaintiff M1 at [24].

73    Ms Palmer also sought to distinguish what was contained in paragraphs [77]–[78] of the statutory declaration made on 3 December 2020 with the material that was provided on 29 July 2021. Ms Palmer submitted that in the statutory declaration, unlike the 29 July 2021 material, Ms Palmer referred to the fact that she had received offers of employment, which the July 2021 material made no reference to.

74    Ms Palmer initially contended that the Minister’s error can be characterised either as a denial of natural justice (having elected to allow Ms Palmer to be heard), an unreasonable exercise of power under s 501BA(2), or a failure to consider relevant facts or materials. These errors are jurisdictional, on Ms Palmer’s submission, as they deprived her of the possibility of a different outcome before the Minister. Ms Palmer referred to the statement of the plurality of the High Court in Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398, in which Kiefel CJ, Keane and Gleeson JJ held that:

…[t]here will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration…

75    According to Ms Palmer, if the Minister considered that cancelling Ms Palmer’s visa was in the national interest, the Minister was required to decide how to exercise his discretion in s 501BA(2) having regard to factors that weighed in favour of, and against, cancellation. Ms Palmer submits that her additional evidence and submissions regarding her steps towards rehabilitation and her taking HIV medication consistently could have affected the Minister’s evaluative fact-finding regarding her risk of reoffending. Paragraphs [77]–[78] of her statutory declaration made on 3 December 2020 also could have affected the Minister’s consideration of the cost to the Australian taxpayer of the provision of HIV treatment to her victim in the course of the Minister’s assessment of the national interest. Further, in establishing the materiality of the Minister’s errors, Ms Palmer submits that the standard of reasonable conjecture is “undemanding” (see Nathanson at [33]), and it is not necessary for Ms Palmer to “articulate a specific course of action which could realistically have changed the result”: see Nathanson at [2].

76    It is my view, even if there was an obligation to afford procedural fairness, there was no such denial of procedural unfairness with respect the relevant portion of the statutory declaration – it was considered by the Minister, as is evident from the following.

77    Ms Palmer asserts that the following paragraphs of her statutory declaration dated 3 December 2020 were not considered by the Minister (or the gravamen of the claim as articulated by them):

77.    I also understand that the Minister is considering the cost of HIV treatment for the victim of my offence as a reason to cancel my visa in the National Interest.

78.    All I can say in this regard is that whether my visa is cancelled or not, that cost is likely to be the same. However, if I were given the opportunity to remain in Australia, I could make contributions to the Australian community which could mitigate some of that cost. This could be through my paying taxes in Australia as well as through my non-monetary contributions to the community such as my work with River and Shilo’s children as well as through my work in the HIV sector. If, however, I was to return to New Zealand, there would be no way for me to mitigate this cost.

78    Accordingly, Ms Palmer asserts, through this evidence, that should she be able to remain in Australia, her monetary contribution (by paying taxes) and non-monetary contribution (by her community work) could mitigate some of that cost.

79    As to whether there was consideration by the Minister, one must consider the whole of the Minister’s reasons. The Minister specifically noted and discussed Ms Palmer’s 3 December 2020 statutory declaration at multiple points in its reasons: see, e.g., MD [34], [45]–[46], [49], [61]–[62], [69], [72], [100]–[101], [103], [117], [124], [124(36)], [124(37)]. Accordingly, it cannot be suggested that the statutory declaration was ignored or overlooked. Furthermore, the Minister specifically considered and referred to Ms Palmer’s work with River and Shilo’s children, as referred to in [78] of her statutory declaration: see MD [100]–[101], [103].

80    In addition, the Minister specifically noted both the evidence and submissions of Ms Palmer, her representative and her supporters regarding the “positive contribution” she makes as well as Ms Palmer’s submission with respect to the mitigation of the cost of HIV treatment at MD[92]:

Ms Palmer, her representative and supporters state that the positive contribution Ms Palmer makes through her advocacy, peer support, education and involvement with health and government services is in the national interest. Mr Parwani submits that any assessment of the national interest should give significant weight to the positive contributions of a visa holder and the cost borne by the community if these contributions are no longer available. Mr Parwani states by remaining in Australia near her supports and employment opportunities Ms Palmer is more likely to mitigate the cost of her victim’s treatment by her community contribution Attachment K. Mr Parwani states by remaining in Australia near supports and employment opportunities Ms Palmer is more likely to mitigate the cost of her victim’s treatment by her community contribution Attachment K.

(Emphasis in original.)

81    The reference to “Attachment K” is a reference to Ms Palmer’s representative’s submission to the Minister sent on 11 January 2021 and, in particular, paragraphs [204]–[206] of that submission, which are extracted as follows:

204.     The Minister has indicated in correspondence received by us on 6 November 2020, that he would be considering the cost of the victim’s HIV treatment in his consideration of whether it would be in the National Interest to cancel Ms Palmer’s visa.

205.     It is submitted that this cost would be borne by the Australian community irrespective of whether Ms Palmer’s visa is cancelled or not. On the contrary, if Ms Palmer is able to remain in Australia, she has the capability to mitigate these costs by way of her contributions to the Australian community. These include the benefits she is able to provide to River Corbett (described above), as well as the community organization and government departments that Ms Palmer providing valuable assistance and insight to.

206.     In light of the above, we submit that it would not be in the National Interest to cancel Ms Palmer’s visa.

82    I accept the submission of the Minister that these paragraphs are in substantially equivalent terms to the matters raised in Ms Palmer’s statutory declaration made on 3 December 2020 as extracted above at [77]. Given the same, I agree that there was neither an occasion nor a requirement for an express additional discussion in the Minister’s Decision of paragraphs [77] and [78] of Ms Palmer’s statutory declaration made on 3 December 2020.

83    Further, the Minister had identified earlier in his reasons the specific matters he believed were relevant to the national interest in this particular case, which included the cost to the community of ongoing medical support, and loss of productivity to further individuals should Ms Palmer conceal her health status from a sexual partner and infect them with HIV: see MD[20], [95]. The cost of the victim’s treatment specifically did not play a prominent role in the Minister’s reasoning having regard to the specific matters relevant to the national interest in this case. This can be seen by the matters taken into account by the Minister wth respect to the national interest (MD[87]–[97]) and particularly at MD[95]. The matter did not call for a more detailed discussion in the reasons: cf Plaintiff M1 at [24]–[25]. It cannot be inferred that it was not considered. In any event, it is clear, from the Minister’s reasons, at MD[92] extracted above, that the Minister did consider Ms Palmer’s submission regarding how, by her conduct, she could mitigate the cost of the victim’s future health treatment.

84    Accordingly, it is my view, that ground 2 is not made out in any event (on any of the species of error identified) given the relevant portion of Ms Palmer’s statutory declaration was considered by the Minister.

Additional amended limbs to grounds 1 and 2

85    After the hearing on 17 April 2023, I ordered that Ms Palmer file a draft amended originating application to reflect the multi-tiered bases upon which grounds 1 and 2 were being advanced, and provided both parties with the opportunity to file supplementary written submissions in advance of a short supplementary hearing.

Legal unreasonableness

86    It was common ground as between the parties that the discretion under s 501BA(2) of the Act must be exercised in a legally reasonable way and on a correct understanding of the law.

Competing positions

87    Ms Palmer contended that the Minister’s exercise of his procedural power to afford Ms Palmer natural justice, as well as his exercise of the decision-making power in s 501BA(2) was affected by legal unreasonableness by reason of the following:

(a)    the Minister representing to Ms Palmer that she had the opportunity to provide material as to why her visa should not be cancelled and that he would consider that material and then noting following that course, which was acting contrary to “the rule of reason and justice” and not “according to law” (citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [89]), and “arbitrary and unfair” (citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [25] and Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326);

(b)    such a change was not according to law; and

(c)    the Minister cannot avoid a finding of legal unreasonableness where there has been a failure to draw the Minister’s attention to material. According to Ms Palmer, whilst the Minister was entitled to rely on advice from the Department, he adopted the “virtues and vices” of that advice (see Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117; 225 FCR 97 at [94]; Williams v Minister for Justice and Customs [2007] FCAFC 33; 157 FCR 286 at [24]–[29]), with one such “vice” being that the Department failed to enclose the material provided to the Minister on 29 July 2021. Ms Palmer contended that the failure to enclose the material was capable of misleading the Minister: see Le v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 51; 215 ALR 521 at [32]. If this were accepted, Ms Palmer submitted that the failure to consider her evidence and submissions was legally unreasonable for the same reason. If it were not accepted, Ms Palmer contended that the decision would still be unreasonable for the reasons previously given, but also because it involved a violation of the Minister’s stated procedure: cf Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 at 453.

88    The Minister understood Ms Palmer’s legal unreasonableness ground as attacking the exercise of two powers: first, the power incidental to s 501BA(2) to afford an applicant natural justice, and secondly, the ultimate power in s 501BA(2) itself. The Minister submitted that the better way to interpret the first-mentioned power is as an “information seeking power”, which is a facilitative power that assists the Minister in reaching the correct or preferable decision, and to ensure that the Minister has sufficient material: see Chamoun at [79]; Vargas at [33]. Ms Palmer noted that she had identified two powers as being affected by legal unreasonableness “out of abundant caution” and to avoid a further pleading issue being taken by the Minister. Ms Palmer contended that it is sufficient to allege legal unreasonableness in the exercise of s 501BA(2), given it is at the time of making the decision that counts for the purposes of determining whether a decision-maker has considered a particular matter. At the second hearing, the Minister understood that Ms Palmer’s unreasonableness challenge now focused on the exercise of the power in s 501BA(2), not the “anterior” decision to afford procedural fairness.

Resolution

89    For the following reasons, I do not accept that the Minister’s failure to consider the information arising under ground 1 and if I am wrong regarding the information with respect to ground 2 (considered above) and it was not considered, I do not accept that the Minister’s failure to consider that information was such that the Minister’s exercise of power under s 501BA(2) was affected by legal unreasonableness.

90    A review undertaken to determine whether an administrative decision is legally unreasonable is concerned with enforcement of the law governing the limits of the power in question and not the manner of its exercise. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise will not be legally unreasonable simply because the Court disagrees with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92]. There are two analytical approaches which may be deployed to ascertain unreasonableness — unreasonableness as to the outcome of the exercise of power, or the reasoning that led to that outcome: Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; 409 ALR 719 at [81]. Where reasons are given for the exercise/non-exercise of a power, it is against those reasons that the Court conducts its review as to reasonableness: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47].

91    I accept, as the Minister submitted, that Ms Palmer’s attack on the so-called information seeking power could not stand: The Minister exercised this power in Ms Palmer’s favour and invited further submissions and material. Further, the subsequent change of course (which post-dated the Minister’s decision to exercise the information seeking power in Ms Palmer’s favour) which did not fully reflect his decision to consider further material, is not relevant, as unreasonableness is determined at the time the power is or should have been exercised: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26].

92    To the extent that this ground is premised on a later decision by the Minister to change course and reverse his decision to seek information from Ms Palmer, this implied subsequent decision did not form part of Ms Palmer’s amended originating application. Regardless, I am of the view that there is insufficient evidence to infer such a decision was made. The relevant chronology, as set out above, revealed that specific requests were made on 1 February 2021 and 21 April 2021, to which Ms Palmer responded on 19 May 2021 (providing a further statutory declaration and noting that further submissions and documents would be provided) and 29 July 2021. Given the extent to which the Minister sought further information, as described in [17]–[26] of these reasons above, and that other material sought was considered by the Minister (including the further statutory declaration of 19 May 2021), there was no correspondence from the Minister after 19 May 2021 stating that he would refuse any further submission or evidence, nor after 29 July 2021, the available and appropriate inference to make is that the information (which is the subject of ground 1) was overlooked because the Minister’s Department failed to bring the information to the personal attention of the Minister.

93    To the extent that Ms Palmer contended that the unreasonableness challenge arises, not from the anterior decision to afford procedural fairness, but the ultimate decision – for the reasons set out regarding the procedural unfairness claim above regarding the extent of the obligation I find that there is nothing in the Minister’s reasons to infer that he misunderstood his obligations at law. Ms Palmer’s submission is premised (incorrectly) on the basis that the rules of natural justice involve not only inviting the affected person to provide material but also considering that material. Even if I am wrong and this premise is correct, there is nothing in the Minister’s reasons to suggest that he (mis)understood this obligation. This is particularly so given the Minister’s express acknowledgement, at MD[9], that the rules of natural justice did not apply but also what the Minister states at MD[10] which is as follows:

In this case, Ms Palmer has been given an opportunity to be heard. This was primarily because of the passage of time since the original decision was made and the desirability of obtaining more up-to-date information about Ms Palmer’s personal circumstances.

94    For the same reasons, I do not accept that Ms Palmer is able to mount a challenge, made in her submissions, but without any corresponding pleaded ground, that the Minister’s reasons failed to disclose an evident or intelligence justification for his purported failure to consider the material (adopting the language in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76]).

95    Even if Ms Palmer were able to establish that the Minister changed the process he intended to take, Ms Palmer is not able to rely on the reasoning in Lam and WZARH. Neither of those cases were considering a change of course where the rules of natural justice do not apply. In Lam and WZARH, it was without question that procedural fairness was owed. It remains a fact intensive inquiry in ordinary circumstances as to whether a change in course of the decision-maker occasions procedural unfairness. Consideration must be given to whether there was an express statutory preclusion of the rules of natural justice. As stated above, I do not accept that subs (3) exhausted itself upon the Minister deciding that Ms Palmer could provide further submissions or material.

96    Furthermore, I do not accept Ms Palmer’s submission that the Minister cannot avoid a finding of unreasonableness by relying on a failure of the Department to draw his attention to the material for this reason.

97    I note that Ms Palmer submitted that legal unreasonableness can be discerned from the Minister’s failure to consider the 29 July 2021 material despite having identified that Ms Palmer’s risk of reoffending was a relevant consideration to the Minister’s evaluation of the national interest (see MD[19]–[20]). Ms Palmer submitted that her material went to that consideration. Ms Palmer acknowledged that the matters which the Minister had identified as being relevant to his evaluation of the national interest criterion were not mandatory considerations: see Vargas at [61]. However, she submitted that this was of “no relevant consequence” (see LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209), as what made the Minister’s failure to have regard to the material unreasonable was the fact that the material provided the most up-to-date information regarding Ms Palmer’s employment status, her contributions to the community, the steps she had taken to address her drug use and her medical treatment (cf LJTZ at [86]).

98    Ms Palmer conceded that the 29 July 2021 material, whilst going to relevant considerations, did not relate to mandatory relevant considerations. Further, an asserted obligation to have regard to the most up-to-date material is “only applicable where that material is essential to the exercise of power, or in other words, it must relate to a mandatory consideration”: Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1758 at [55]. I accept the Minister’s submission that whilst the overlooked information may have been relevant to the considerations identified by the Minister, this did not mean that the Minister did not already have sufficient probative material to support his findings: Chamoun at [79], quoted in Vargas at [33].

99    LJTZ is distinguishable from Ms Palmer’s case. There the Court held that the Minister had acted unreasonably and irrationally by falsely stating that he had considered certain material, which is not what occurred in Ms Palmer’s case: LJTZ at [14], [36], [45]. Further, in LJTZ, the Minister relied on the impugned statement as a basis for declining to afford the applicant procedural fairness (at [53]), which is not what occurred in Ms Palmer’s case. I accept the Minister’s submission that here, unlike LJTZ, there is no particular unreasonableness or illogicality identified in the Minister’s reasons. Accordingly, the claim relates to outcome not process unreasonableness. The question is then whether the ultimate decision was within the bounds of reasonableness. To descend into a more granular review amounted to an attempt to run an impermissible procedural unfairness complaint under a different name so as to avoid the effect of s 501BA(3): Unreasonableness is not to be judged through the lens of procedural fairness: DUA16 at [26]. Whilst claims of procedural unfairness and legal unreasonableness may overlap, this does not mean that procedural unfairness amounts to unreasonableness without having regard to the particular power in question and the particular complaint made.

100    In relation to the Minister’s purported failure to consider [77]–[78] of Ms Palmer’s statutory declaration made on 3 December 2020 (which is relevant to ground 2), Ms Palmer contended that this failure amounted to unreasonableness because a condition on the valid exercise of s 501BA(2) required that the Minister actually consider the material before him: Chamoun at [67]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [33]; LJTZ at [122(74)]. For the reasons above, I have found that the Minister did consider this material. Even if I am wrong in this regard, it cannot be inferred that the Minister misunderstood his obligation under s 501BA as reasoned at [93].

101    For these reasons, Ms Palmer has not made out her claim, under grounds 1 and 2, that the Minister’s Decision was affected by legal unreasonableness.

Failure to consider relevant information

102    In the alternative, Ms Palmer contended error on the basis of the purported failure of the Minister to consider the two tranches of material.

103    First, with regard to the material provided on 29 July 2021, she contended that the failure to have regard to this material amounted to jurisdictional error given the material was critical to her case for the reasons outlined at [97] above, and given the Minister conceded that the evidence and submissions were material to his decision: DHS17 v Assistant Minister for Immigration and Border Protection [2018] FCAFC 209; 267 FCR 411 at [55]. Further, on her submission, a failure to have regard to relevant material may result in jurisdictional error even when it does not pertain to a mandatory relevant consideration (as described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24), and she submitted that DHS17 was one such example.

104    Secondly, Ms Palmer made submissions regarding the Minister’s purported failure to consider [77]–[78] of her 3 December 2020 statutory declaration. She contended that the failure to have regard to this evidence sounded in a different jurisdictional error to that outlined above, namely a contravention of the implied condition of reasonableness in s 501BA(2).

105    In addition, Ms Palmer submitted that Vargas does not assist the Minister. In Vargas, the argument that was considered by the Full Court was that all of the material before the Tribunal was a mandatory relevant consideration, but this is not Ms Palmer’s case. Further, the Full Court held in Vargas that a failure to consider material, without more, could not amount to jurisdictional error, and Ms Palmer submitted that the requirement for “more” has been satisfied for the reasons set out in [97] above.

106    For the following reasons, I do not accept that the Minister erred by failing to consider any of the impugned material. I rely on my reasoning above, that the material which was the subject of ground 2 was considered by the Minister. Even if I am wrong, for the following reasons, this basis is not made out with respect to either ground.

107    As submitted by the Minister, the central premise of this ground is that the Minister was obliged to consider material where it met a threshold of sufficient importance: For example, as found in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 and the line of authorities to which it refers. However, these authorities were grounded in a specific legislative framework which imposed a duty for the Tribunal to consider an application for review in light of information, evidence and submissions which is provided to it or it obtains: SZRKT at [102]. Such principles are not applicable to the personal power exercisable by the Minister under s 501BA. Ms Palmer’s reliance on DHS17 is misplaced. DHS17 concerned the power in s 501CA(4) which, unlike s 501BA, is to be exercised having considered the non-citizen’s representations in favour of revocation: DHS17 at [43]; Plaintiff M1 at [23]. Further, in DHS17, the Minister specifically relied upon a departmental officer’s assessment against the applicant, which had only been partially presented to the Minister and was apt to mislead him.

108    For the reasons expressed above, the Minister did not have an obligation to consider the material he asked for by reason of the broad power afforded to him by s 501BA(2) and the lack of constraint on that power by reason of operation of s 501BA(3).

109    As observed by the Full Court in EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130, which concerned a decision to cancel a visa pursuant to s 501(3) where the rules of natural justice are also excluded pursuant to s 501(5), at [44], subss 501(3)–(5) contemplate that a decision will be made with less than the full picture, including “on the basis of stale information”. An obligation to have regard to the most up-to-date material is only applicable “where the material is essential to the exercise of power, or in other words, it must relate to a mandatory consideration”: Chetcuti at [55]. I rely on the following holding in Chetcuti, at [57]:

…There is therefore no room to imply from “the subject matter, scope and purpose” (Peko-Wallsend at 45) of the Act, that the Minister’s decision must be made on the basis of material provided by the affected person being taken into account at all, let alone that the most recent of material so provided must be taken into account.

110    As referred to above, Ms Palmer conceded that the relevant considerations (to which the relevant material about which grounds 1 and 2 relate) were not mandatory considerations. Relevantly, a failure to consider material before the Minister could not, without more, cannot amount to jurisdictional error: Vargas at [62]. For these reasons, this basis is not made out.

Incorrect understanding of the law (ground 1)

111    Ms Palmer contends that the Minister failed to consider the material provided on 29 July 2021. In not considering the material in his (constructive) possession, the Minister acted on a misunderstanding of the power to afford natural justice (namely that aspect of the hearing rule that involves considering (or dealing with) material provided by the visa holder (citing Ibrahim).

112    Ibrahim concerned circumstances where the Minister had incorrectly understood that the effect of s 501BA(3) was to preclude him from affording procedural fairness. For the reasons set out above, no misunderstanding of the law has been identified in this case.

113    Accordingly, this claim is not made out.

Ground 3: Illogical, irrational or unreasonable finding

114    Ground 3 concerns whether the Minister’s finding that there was a “low likelihood that Ms Palmer would reoffend” (at MD[77]) was so illogical, irrational or unreasonable that the Minister’s Decision was affected by jurisdictional error. Ms Palmer submitted that rather than there being a “low likelihood” the Minister could realistically have found that Ms Palmer posed “no”, “no non-negligible” or “an extremely low” risk of reoffending by reason of the evidence demonstrating that: (a) since 2016, Ms Palmer had consistently adhered to her treatment plan for HIV to maintain an undetectable viral load, even where she had used illicit drugs; (b) HIV cannot be transmitted from one person to another if the former has an undetectable viral load; and (c) there was nothing to suggest that she would not continue to adhere to her treatment plan going forward.

115    By this ground, Ms Palmer impugns the Minister’s findings at MD[77], which are extracted as follows:

I have found that the nature of Ms PALMER’s conduct is very serious. I have further found that grievous bodily harm by infecting another with HIV has the potential to cause physical and psychological injury to members of the Australian community and subsequent financial harm to the Australian community as a whole. On balance I consider there to be a low likelihood that Ms PALMER will reoffend. Nevertheless, I considered that, should Ms PALMER engage in similar conduct again it may result in psychological and physical harm to members of the community and subsequent financial harm to the Australian community as a whole. I have given this significant weight towards a finding that it is in the national interest to cancel Ms PALMER's visa.

(Emphasis in original.)

116    Ms Palmer contends that, read in context, the Minister’s use of the word “reoffend” (emphasis added) must have referred to Ms Palmer transmitting HIV to another person without their consent, given that was the offence which she had been convicted of and was the focus of the Minister’s Decision. In making that finding, the Minister had regard to the following adverse facts: (a) Ms Palmer had used illicit drugs since the Tribunal revoked the cancellation decision (see MD[48], [51], [56]–[59], [63]); (b) prior to commencing treatment in 2016, Ms Palmer was in denial about her HIV diagnosis, took illicit drugs and was reckless in her approach to her own sexual health and the sexual health of her partners (see MD[49], [53], [64]–[65], [73]); (c) Ms Palmer had been convicted of driving offences (see MD[54], [69]–[70]); and (d) Ms Palmer had been inconsistent in her evidence to the Tribunal regarding her remorse (see MD[66], [68]). Ms Palmer submits that there is no rational or logical connection between the preceding adverse facts and a finding that there was a “low likelihood that Ms Palmer will reoffend”: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131], [135].

117    Ms Palmer submits that the fact remained that on the evidence before the Minister, there was no, or no realistic, prospect of Ms Palmer not taking her HIV medication consistently, even if she were to relapse into illicit drug use. Whilst the Minister noted this evidence (at MD[49]–[50], [52], [62]–[63]), he sought to “explain it away” on the basis that Ms Palmer had used illicit drugs in the past, as demonstrated in the following extracts of the Minister’s Decision:

49.     … I accept that the potency of the medication provides some protection to the community however I note Ms Palmer and her representative state that in the past Ms Palmer has been so caught up in the drug life that she has behaved negligently and recklessly regarding her own sexual health and the health of others.

…

52.     … Mr Coyle states that even if Ms Palmer returns to drug use, to transmit HIV she will have to cease her medication, develop a detectable HIV load and then behave in a manner which transmits HIV. I accept that the risk of the confluence of these events is low however it cannot be discounted in light of Ms Palmer’s return to substance use.

53.     … I accept that the majority of injecting drug users abide by harm minimisation practices; however I note Ms Palmer does not have a history of engagement in harm minimisation while under the influence of drugs.

…

63.     I accept that Ms Palmer’s engagement with a rehabilitation program and medical supports reduces the likelihood of Ms Palmer reoffending. Ms Palmer’s return to drug use while under parole supervision however is concerning. Ms Palmer’s risk of infecting another person with HIV is directly correlated with her medication compliance. In her own submission Ms Palmer states she behaves recklessly or negligently when under the influence of drugs or in order to pay for drugs. I find Ms Palmer’s return to drug use increases the likelihood of her reoffending.

118    On Ms Palmer’s submission, the above findings do not grapple with the fact that Ms Palmer had consistently taken her HIV medication and maintained an undetectable viral load, even where she had taken illicit drugs. Put another way, the evidence did not support the proposition that the use of illicit drugs increased the risk of HIV transmission. Ms Palmer contends that, in reaching the opposite conclusion, the Minister engaged in irrational, illogical or unreasonable fact-finding.

119    Ms Palmer also submits that, in making the abovementioned findings, it appears that the Minister failed to have regard to the evidence of Ms Palmer in her statutory declaration made on 19 May 2021 (that is, despite having used illicit drugs following her release into the community in January 2020, she did not cease taking her HIV medication). Nowhere under the heading “Remorse and rehabilitation” in the Minister’s Decision did the Minister engage with this evidence which, on Ms Palmer’s submission, also amounted to error: see Plaintiff M1 at [27]; SZRKT at [111].

120    Another purported error, according to Ms Palmer, is that the Minister misunderstood the evidence of Dr Olga Martinez given before the Tribunal. The relevant part of her evidence was extracted by the Tribunal as follows (at T[105]):

It would be of - it would be of concern if there was evidence that the use of the methamphetamine led to her not being adherent to her antiretroviral medication. I don’t know that that would necessarily be the case. I think it’s quite possible that if she were to use the methamphetamines from the point of view of the [sic] continuing to take the antiretroviral medication it is quite possible and quite likely I would think that she would continue to take her medications.

Of course there [sic] would be of concern from the point of view of what other effect the methamphetamines may have on her general health but not necessarily be in relation to whether she would continue to adhere to the antiretroviral medications or not.

121    The Minister described Dr Martinez’s evidence as follows (at MD[50]):

In her evidence to the AAT, Dr Olga Patricia Martinez stated that if Ms PALMER were to return to methamphetamine use it would be ‘of concern’ however ‘quite likely’ and ‘quite possible’ that Ms PALMER would continue to maintain her antiretroviral treatment Attachment E.

(Emphasis in original.)

122    Ms Palmer contends that, contrary to the Minister’s understanding of Dr Martinez’s evidence, Dr Martinez did not say that the use of methamphetamines by Ms Palmer was itself “of concern”. Rather, the concern was said to arise if the evidence showed that use of methamphetamines would lead to Ms Palmer not adhering to her antiretroviral medication. There was no such evidence before the Minister.

123    Ms Palmer contends that, had any of the foregoing errors not been made by the Minister, it is at least possible that he could have found that Ms Palmer’s use of illicit drugs did not increase the likelihood of her reoffending: see MD[63]. The Minister might then have found that there was less than a “low likelihood that Ms Palmer will reoffend” (at MD[77]), such as a “very low” or “negligible” risk. Had the Minister reasoned in this way, Ms Palmer submits that it was at least possible that he might not have placed “significant weight” on Ms Palmer’s risk of reoffending “towards a finding that it is in the national interest to cancel [her] visa”: at MD[77]. This, in turn, might have caused the Minister not to find that setting aside the Tribunal’s decision and cancelling Ms Palmer’s visa was in the national interest.

124    For the following reasons, it is my view that the finding that there was a low likelihood of Ms Palmer reoffending was open for the Minister to make. For there to be error Ms Palmer must prove the “high threshold” of “extreme” illogicality or irrationality – that the impugned decision was one at which no rational or logical decision-maker could have arrived on the same evidence: DGPZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 107; 293 FCR 558 at [75] per Besanko J (Wheelahan and Rofe JJ agreeing), citing Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; 280 FCR 1 at [23]–[25]. It is not sufficient for the Court to find that threshold is met even if Ms Palmer, or the Court, emphatically disagrees with the finding: see SZMDS at [124], [129], [132].

125    The gravamen of Ms Palmer’s complaint is that the Minister did not consider the unchallenged evidence that Ms Palmer continued to take her HIV medication and maintained an undetectable viral load during relapses into drug use. Had the evidence been considered, Ms Palmer contended that no rational decision-maker could have referred to Ms Palmer’s past conduct in the context of her present risk, and found that her return to drug use increased the likelihood of her reoffending.

126    The Minister’s finding must be understood in context. The risk to the community finding arises from the Minister’s cumulative consideration of factors contributing to past conduct, remorse and rehabilitation. It was open for the Minister to consider Ms Palmer’s admissions that she “behaves recklessly or negligently when under the influence of drugs or in order to pay for drugs” (MD [63], see also MD [49]), and has “shown impaired judgement by further unrelated offending” (MD [54]) which increased the likelihood of her reoffending, even if the overall likelihood of her reoffending was low: at MD [77]. The Minister was “sceptical” about certain of Ms Palmer’s rehabilitation claims (at MD [57]–[60]), including her return to drug use while under parole supervision (MD [63]). Further, the Minister was circumspect regarding the degree of her remorse: MD [68]. It may be accepted that the fact that Ms Palmer had taken her medication in the past may have assured some decision-makers that there was no possible prospect that that would not continue into the future. The Minister acknowledged the evidence of Dr Martinez, that it was “quite likely” and “quite possible” that Ms Palmer would continue to maintain her antiretroviral treatment (MD [50]). Further the Minister referred to the evidence of Mr Cogle that the risk of a confluence of these events “is low however it cannot be discounted in light of Ms Palmer’s return to substance use”: at MD [52]. I accept the Minister’s submission that it was neither illogical nor irrational in the legal sense for the Minister to reason that the admitted recklessness and negligence as to Ms Palmer’s sexual health and the health of others (when using drugs) was a cause of concern, and that there was consequently a low, but not zero, risk of reoffending. I do not accept Ms Palmer’s contention was the only rational and logical conclusion that the Minister could have arrived at.

127    With respect to Dr Martinez’s evidence as to whether Ms Palmer would continue to take her anti-retroviral medication if she returned to methamphetamine use, as the Minister submitted, the height of Dr Martinez’s evidence went was that it was “quite possible” and “quite likely” that Ms Palmer would continue taking her medication if she returned to illicit drug use. Further, Dr Martinez stated that return to methamphetamine use would be concerning in two respects: first, if there was evidence that the use of methamphetamine led to Ms Palmer not being adhered to her medication, and secondly, a more general concern on Ms Palmer’s overall health. Given the same, the Minister’s summary of Dr Martinez’s evidence as extracted at [121] above is both fair and entirely unobjectionable.

128    For these reasons, ground 3 is not made out.

Conclusion

129    For the above reasons, the application be dismissed with costs.

130    Finally, I express my gratitude to Mr Kaplan and the HIV/AIDS Legal Centre for appearing and representing Ms Palmer pro bono in this matter.

Associate:

Dated:    19 September 2023