Federal Court of Australia

Neave v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2025] FCA 478

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    The applicant pay the respondent’s costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    This proceeding concerns an originating application for judicial review of a decision not to revoke the mandatory cancellation of the applicant’s Class BF transitional (permanent) visa under s 501CA(4) of the Migration Act 1958 (Cth) made by the respondent (Minister) on 28 February 2024 (non-revocation decision).

2    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of, amongst other things, a substantial criminal record and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. Relevantly, a person does not pass the character test if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(3A)(a)(i), s 501(6)(a), s 501(7)(c).

3    Section 501CA(3) provides that as soon as practicable after making a cancellation decision under s 501(3A) (referred to as the ‘original decision’) the Minister must, amongst other things, give the former visa-holder written notice of the decision and invite that person to make representations to the Minister about revocation of the original decision. Section 501CA(4) provides, relevantly, that the Minister may revoke the original decision if the former visa-holder makes representations in accordance with the invitation and the Minister is satisfied that there is another reason why the original decision should be revoked.

4    The applicant is a 55-year old citizen of the United Kingdom and first entered Australia in 1977 at or around the age of 7. He has resided in Australia since that time in accordance with visas granted under the Act. In September 2010 the applicant killed a person with whom he had a relationship in a violent attack during which his victim was stabbed more than 60 times with a knife. In March 2012 the applicant was convicted of murder and sentenced to a term of imprisonment of 17 years with a non-parole period of 13 years. On 18 August 2020, as a consequence of his conviction and the term of imprisonment to which he was sentenced, the Minister cancelled the applicant’s visa under s 501(3A). The applicant was given notice of that decision and invited to make, and subsequently made, representations to the Minister in accordance with s 501CA(3).

5    On 28 February 2024 the Minister made a decision by which he decided not to revoke the original decision to cancel the applicant’s visa. The applicant has sought judicial review of that decision and relief in the form of writs of certiorari and mandamus to set aside the non-revocation decision and to compel the Minister to make a decision in accordance with law.

6    For the reasons that follow, the application must be dismissed and the applicant should pay the Minister’s costs of the proceeding.

The applicant’s representations

7    The Minister gave a statement of reasons for decision in accordance with s 501G(1) of the Act. The Minister’s reasons included an index of relevant materials and a number of attachments to the reasons containing those materials. The documents include Attachment D (request for revocation and personal circumstances form), Attachment E (letter from the applicant to the Department of Home Affairs dated September 2020), Attachment H (a letter from the applicant to the Department of Home Affairs dated 24 August 2020) and Attachment H.1 (an undated letter from the applicant ‘to whom this may concern’). The relevant materials also included an advice that the applicant had appointed a migration agent dated 7 June 2021 to provide assistance to him with respect to revocation of the cancellation of his visa.

8    In Attachment D, in a box under a heading ‘Reasons for Revocation’ in the applicant’s personal circumstances form, the following was printed by hand:

I have had a stroke – I have mental [problems] –

My Mum & Dad are in [their] 70s

They are not well –

Also got short term memory [loss]

Also brain damage –

I have been in Australia for 40+ years

Please help

9    Section 12 of the personal circumstances form deals with impediments to return. The form was completed to indicate that the applicant had been diagnosed with medical or psychological conditions. By way of explanation the following was printed by hand on the form:

About 5 years ago I had a stroke I have a [blockage] in an [artery] from my heart to my brain [short term] memory loss / brain damage from the stroke

10    Attachment E sets out eight numbered points evidently advanced as reasons for revocation of the cancellation decision. Relevantly, point six is as follows:

Health reasons

Brain damage –

Stroke –

Short term memory loss –

11    Attachment H.1 also sets out reasons for revocation and contains the following statement (spelling and punctuation amended):

I came over from England at the age of 8 years old with my father, mother and brother. Went to school until the age of 14.9 months. My father got me a job at Ingams chicken where he worked. Worked there for a couple of years then over the years I’ve had a few jobs but worked right until I came to jail. When I came to jail I got a job and have worked most of my time in jail. About 4 years ago I had a stroke in my sleep as a result of that I have a blockage in an artery from my heart to my brain, short term memory loss and brain damage. My parents are in their 80’s and have supported me over the last 13 years every step of the way. Now I would like to look after them. There is not a day goes by when I don‘t think about my crime. It is not a nice feeling to have and will be with me for the rest of my life. I am truly sorry for taking [the victim’s] life and also hurting all the family members that have been affected by my actions.

12    Attachment H, again, sets out reasons for revocation and it includes the following statement:

I receive a notice of visa cancellation under section 501(3A) of the Migration act 1958

I have been in Australia since I was 7 years of age – 1977 *

My whole family are in Australia – and my mother and father are in [their] late 70s – this is causing [enormous] stress on my parents who are both not in good health.

I also am not well as I had a stroke in 2015 – about 5 years ago – I have a blockage [from] my heart to my brain in my [artery] – also short memory loss – also upper vision in right eye is going – I have brain damage

I am incarcerated for murder – my earliest release date is September 2023 and my top sentence is September 2027 *

I am asking the Department of Home Affairs to show mercy on me and allow me to stay in Australia – with my family –

While I have been incarcerated I have done [programs] to help me with my crime for example I have done – Equips Aggression which has been of great help to me – I am willing to do any other programs I am required to do.

Please could the Department reconsider my visa cancellation.

I am willing to have any medical examination to prove that my medical & mental wellbeing has suffered greatly

I thank you for your time and hope the Department of Home Affairs can assist me with this problem.

(Emphasis added.)

The Minister’s reasons

13    The Minister commenced his reasons for decision by outlining the requirements of s 501CA(4), that the applicant had made representations regarding the revocation of the cancellation decision and that the Minister was not satisfied that the applicant passed the character test: MR [2]-[8].

14    The Minister then addressed whether there was another reason why the cancellation decision should be revoked in accordance with s 501CA(4)(b)(ii) by reference to various considerations the Minister had taken into account. In so doing, the Minister made findings as to whether the considerations were in favour, against or neutral to the exercise of the discretion to revoke the cancellation decision: MR [10]-[95].

15    Amongst other things, the Minister took into account impediments if the applicant were removed to the United Kingdom: MR [85]–[92]. The Minister’s reasons included the following references to the relevant materials and conclusions:

86.    Mr NEAVE is aged 54 years. He submits that he is currently taking medication for depression which has been an issue throughout his life. Mr NEAVE submits that in 2015 he suffered a stroke in his sleep which caused brain damage and short term memory loss. Mr NEAVE submits that he is currently being treated by Justice Health NSW Attachments D, E, H and H.l.

…

92.    I find that Mr NEAVE will experience practical, financial and emotional hardship if removed to the United Kingdom, because of his lack of family and social support and the issues he will face accessing medical care, for example, if his medical records and history are not available in his home country. I acknowledge that the complications of the stroke he suffered in 2015 may be ongoing and impact him when attempting to access services and employment.

Ground of review

16    By an amended originating application filed 20 January 2025 the applicant advances a single ground of review by which he asserts that the Minister made a jurisdictional error. The nature of the asserted error is not identified in the ground, but in seven particulars to the ground which are as follows:

a)    The Applicant gave the Minister a letter dated 24 August 2020: [Attachment H].

b)    Attachment H contained ‘representations’ for the purpose of convincing the Minister pursuant to s 501CA(4) of the Act that there was “another reason” to revoke the cancellation of the Applicant’s visa.

c)    One of such representations was that the Applicant’s “upper vision in right eye is going”.

d)    That representation reveals a clearly articulated claim that the Applicant was losing his upper vision in the right eye (the Eyesight Loss Claim).

e)    In the alternative, the Eyesight Loss Claim clearly or fairly arose from the materials.

f)    The Minister’s reasons failed to refer to the Eyesight Loss Claim.

g)    That failure reveals a jurisdictional error of any of the following types:

A.    A denial of procedural fairness;

B.    A constructive failure to exercise jurisdiction;

C.    Legal unreasonableness and/or illogicality.

Summary of applicant’s case

17    The applicant contends that Attachment H included a clearly articulated claim that his ‘upper vision in right eye is going’ which he characterises as the ‘Eyesight Loss Claim’. Beyond characterising the reference to deterioration in his vision as a ‘claim’ neither the ground of review nor the applicant’s written submissions identify the manner in which that ‘claim’ is alleged to have met the description of a ‘representation’ about ‘revocation of the original decision’, in particular, the manner in which it is alleged the applicant made a claim or argument that his deteriorating vision was ‘another reason’ for revocation. The applicant’s counsel submits orally that from the context in which the claim was made; namely, a claim made in response to an invitation under s 501CA(3) by which the Department drew his attention to the criteria in Direction 79 (including the paragraph of that direction addressing impediments to removal by reason of age and health), the applicant obviously wanted to avoid removal from Australia, and the claim about deterioration of his eyesight was separate from the claim about the applicant’s stroke and its consequences, that the Eyesight Loss Claim comprised a clearly articulated and separate ‘representation’ and reason for revoking the cancellation of his visa. Therefore, I proceed on the basis that the applicant asserts that he made a clearly articulated claim that loss of vision in his upper right eye was an impediment to his return to the United Kingdom and that was a separate representation and another reason for revoking the decision to cancel his visa.

18    The applicant submits that the Minister was required by s 501G(1)(ba) and s 501G(1)(e) of the Act to give the applicant a written notice that sets out the reasons for the decision. Further, that by operation of s 25D of the Acts Interpretation Act 1901 (Cth) the Minister was required to ‘set out the findings on material questions of fact and refer to the evidence and other material on which those findings were based’. The applicant contends that it is to be inferred from the absence of any reference to the asserted Eyesight Loss Claim that the Minister failed to take that into account in reaching his decision not to revoke the cancellation decision. In support of that proposition the applicant relies upon Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]. The applicant also submits that the High Court’s explanation of the manner in which the Minister is required to consider representations in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 does not detract from that established principle.

19    The applicant contends that there are three possibilities that arise from Yusuf all of which point to jurisdictional error.

(1)    The Minister was aware of the claim, treated it as a material question of fact, but failed to express findings on it in his s 501G notice. The applicant contends that would involve legal unreasonableness on the ground that the Court would have to speculate as to why the Minister found that the claim in isolation or combined with other claims was not ‘another reason’ to revoke the cancellation decision. That is, in substance, the Minister’s decision would lack an evident and intelligible justification.

(2)    The Minister was aware of the claim, but treated it as a non-material question of fact. The applicant contends that the Minister’s treatment of the claim as immaterial would involve legal unreasonableness or a failure to identify and understand a material aspect of his claim.

(3)    The Minister overlooked the claim. The applicant contends that would involve a failure to evaluate or consider a substantial and clear argument advanced by the applicant.

Summary of Minister’s case

20    The Minister submits that, in context, other than a general and high-level statement that there was an issue with the upper vision of his right eye, the applicant made no claim that was clearly articulated or unarticulated but clearly arising from the information before the Minister that the applicant’s eyesight was ‘another reason’ why the cancellation decision should be revoked. The Minister submits that, at its highest, the asserted claim was part of a wider claim to the effect that the applicant experienced various health ailments.

21    While the Minister accepts that the reasons in his s 501G notice do not identify the asserted claim, he contends that is not surprising given the lack of significance of the statement about the applicant’s loss of vision in the context of the balance of the material that comprised the applicant’s representations as a whole and the specific context in which the statement was made; namely, it was mentioned amongst certain health conditions that were causes or results of the stroke from which the applicant suffered. Put another way, the asserted claim was not a central or prominent aspect of the applicant’s representations as a whole. Further, the Minister expressly considered whether the applicant would face any impediments accessing health care if he were returned to the United Kingdom. That consideration was not limited to specific health conditions. The Minister submits that approaching his reasons fairly, contextually, and without an eye keenly attuned for error, it is apparent that any claim concerning the applicant’s vision was subsumed in that general finding.

Applicable principles

22    Section 501CA(4) confers on the Minister a broad power to revoke a cancellation decision made pursuant to s 501(3A) of the Act if, relevantly, the Minister is satisfied that there is ‘another reason why the original decision should be revoked’. The High Court set out and explained the applicable legislative framework in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398 at [13]-[22] (Keane, Gordon, Edelman, Steward and Gleeson JJ) and Plaintiff M1/2021 at [10]-[30] (Kiefel CJ, Keane, Gordon and Steward JJ). It is unnecessary to restate that explanation of the statutory scheme for the purposes of this proceeding, but a summary of the approach the Minister is required to take to representations a former visa-holder has made in response to an invitation under s 501CA(3) of the Act is salient.

23    In Plaintiff M1/2021 the joint reasons indicate that consideration of whether there is ‘another reason’ to revoke a decision to cancel a visa under s 501CA(4) commences with a former visa-holder’s representations made in response to the Minister’s invitation to do so under s 501CA(3). In considering whether there is ‘another reason’ to revoke the cancellation decision the Minister must undertake that assessment by reference to the ‘case’ the former visa-holder has made in the representations. The Minister is not required to treat every statement within the representations as a mandatory relevant consideration, but the Minister cannot ignore the representations. The Minister must read, identify, understand and evaluate the representations:

24    … the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate [See Peko-Wallsend (1986) 162 CLR 24 at 41; Abebe v The Commonwealth (1999) 197 CLR 510 at 580 [197]; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 176 [33]]. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged to “make actual findings of fact as an adjudication of all the material claims” made by a former visa holder [Viane at [14]].

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness [Viane (2021) 274 CLR 398 at 406 [13]. See also R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 150 [34]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [73]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 998 [38]; 207 ALR 12 at 20; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 370-371 [90]-[92]; Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 35 [33]. ]. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations [Peko-Wallsend (1986) 162 CLR 24 at 40; CRI026 v Republic of Nauru (2018) 92 ALJR 529 at 544-545 [66]; 355 ALR 216 at 234; SZMTA (2019) 264 CLR 421 at 435-436 [13], 463 [105]; AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56]; Viane (2021) 274 CLR 398 at 407 [15]]. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations [Dranichnikov (2003) 77 ALJR 1088 at 1092 [24], 1102 [95]; 197 ALR 389 at 394, 408; CRI026 (2018) 92 ALJR 529 at 544-545 [66]; 355 ALR 216 at 234. See also Tickner (1995) 57 FCR 451 at 462-463; Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at 164-165 [59]]. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them [See Applicant S270 (2020) 94 ALJR 897 at 902 [33]; 383 ALR 194 at 200; Viane (2021) 274 CLR 398 at 407 [15]; cf Dranichnikov (2003) 77 ALJR 1088 at 1100 [78]; 197 ALR 389 at 405]

24    That explanation of the Minster’s statutory task does not detract from and is not inconsistent with, amongst others, the established principle that failure to take account of ‘cogent evidence providing substantial support to the applicant’s case’ or ‘a substantial and clearly articulated argument advanced by the applicant in support of that case’ would amount to a constructive failure to perform the statutory task the Minister was required to perform: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [13] (Bell, Gageler and Keane JJ), at [105] (Nettle and Gordon JJ); Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26; 197 ALR 389 at [24]–[32] (Gummow and Callinan JJ), at [95] (Hayne J); Plaintiff M1/2021 at [27]. As the administrative process is to some extent inquisitorial, the Minister may also be obliged to go beyond the case as articulated by the former visa-holder and consider an unarticulated representation or reason for revocation that is apparent on the face of the materials before the Minister: DWN027 v Republic of Nauru [2018] HCA 20; 355 ALR 238 at [17]; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55], [58], [60], [68] (Black CJ, French and Selway JJ).

25    In an appropriate case, an inference may arise that a decision-maker has overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument. But, as the Full Court of this Court (Mortimer, Colvin and O’Sullivan JJ) explained in ECE21 v Minister for Home Affairs [2023] FCAFC 52; 297 FCR 422 (at [7]), there is a distinction between considering (in the sense of adverting to and understanding) the representation made by a former visa-holder and considering the representations (in the sense of evaluating the significance of them in the course of the decision-making process). It is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations made, to determine whether a particular matter is of significance. ‘Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister’s reasons, even a matter that was clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made.’ Their Honours went on to observe, relevantly:

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

26    In DWN027 (at [21]), in the context of an asserted failure to consider an unarticulated claim that was alleged to have been apparent on the face of the materials, the High Court (Kiefel CJ, Gageler and Nettle JJ) cautioned against the ‘danger’ of an applicant seeking to criticise the reasoning of the decision-maker in a manner that overlooks the forensic context in which the reasoning was expressed. And, upon judicial review ‘the decision of the decision maker must be considered in light of the basis on which the application was put before the decision maker and not upon some entirely different basis that may only occur to the [applicant’s] lawyers at this later stage of the process’. Similarly, the Full Court (Flick, Griffith and Moshinsky JJ) in AXT19 v Minister for Home Affairs [2020] FCAFC 32 observed:

56    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

27    Further, all that s 501G(1) of the Act and s 25D of the Interpretation Act require the Minister to do is set out his findings on those questions of fact he considered material to the decision which was made and the reasons he had for reaching that decision. Contrary to the applicant’s submission, Yusuf is not authority for the proposition that, in that context, the Court should infer from an absence of reference to a matter that there was a failure to take that matter into account, but rather that the Court may infer that the Minister did not consider the matter material: Yusuf at [69]. That is not to say that the Court must draw that inference. The matter may be so obviously relevant and material that a failure to mention it compels the Court to infer that it was not read, identified, understood or evaluated: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; 150 ALD 34 at [19]. However, it is also relevant that the Minister need not mention every particular item of information that has been considered or evaluated in the performance of the overall task of evaluation of the claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]; ETA067 v The Republic of Nauru [2018] HCA 46; 92 ALJR 1003 at [13] (Bell, Keane and Gordon JJ). Accordingly, the Court should not too readily draw the inference of a failure to consider information where the reasons are otherwise comprehensive and the information or issue has been identified at some point: Applicant WAEE at [17]. Also relevant is the centrality of the information which was alleged not to have been considered and the prominence that information assumed in the representations: Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 at [37(1)] (Reeves, O’Callaghan and Thawley JJ).

28    Additionally, there are few mandatorily relevant matters the Minister must consider in applying s 501CA(4)(b)(ii). It is well settled that no particular statement in the representations given should be characterised as a mandatorily relevant consideration, as distinct from the ‘representations as a whole’: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; 98 ALJR 594 at [6(c)] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ). Relevantly, in their joint reasons in McQueen, Jagot and Beech-Jones JJ characterised the task of considering the representations as a whole in the following manner:

45    … a failure to consider is not to be equated to a mere failure to consider a matter in or the form of the representations. The question whether there has been a failure to consider a matter in or the form of the representations is relevant only if it means that the decision-maker failed to consider the representations. Whether a decision-maker has failed to consider the representations is a question to be answered objectively by reference to the whole of the representations and the whole of the material in fact considered by the decision-maker in the context of the decision required to be made. For a failure to consider a matter in or the form of the representations to constitute a failure to consider the representations, the matter or the relevant aspect of their form must be of such objective importance to the decision to be made (in this case, the decision whether there is another reason to revoke the cancellation decision) that it can reasonably be said that there has been a failure to consider the representations themselves. As Brennan J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 61]:

"A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within [the decision-maker's] knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered."

46    Whether the legal consequence that the decision-maker has failed to consider representations will follow from the decision-maker examining other material summarising or referring to the representations will depend on both "the nature, form and content of the representations" and "the length, clarity and degree of relevance of the representations", as well as the material in fact relied on by the decision-maker, evaluated within the statutory context of the decision to be made and the "bounds of rationality and reasonableness" [Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at 599 [25]].

29    It follows that the real question in this case is whether the applicant’s representations raised a substantial and clearly articulated separate argument or claim or one that clearly arises on the materials to the effect that another reason for revoking the cancellation decision was the impediment to returning him to the United Kingdom resulting from deterioration in the vision in his right eye. And, if so, whether it can be inferred that argument or claim was ignored, overlooked or misunderstood having regard to the centrality of the information and the prominence the information assumed in the representations. For reasons given later, it is unnecessary to address the applicable principles concerning legal unreasonableness.

Was there a substantial and clearly articulated claim about the applicant’s loss of vision?

30    I am not persuaded that the applicant made a separate representation to the effect that deterioration in the vision in his upper right eye was a reason for revocation of the cancellation of his visa due to an impediment if he were removed to the United Kingdom.

31    The reference to his vision ‘going’ in Attachment H was the only reference to loss of vision in any document or representation the applicant made. It is a single reference in one line of one document. All other documents that refer to the applicant’s health mention his stroke, an artery blockage and brain damage. In Attachment D the applicant refers to a blockage in an artery from his heart to his brain, stroke, short-term memory loss and brain damage ‘from the stroke’. Similar references are made in Attachment E and Attachment H.1. The reference to his vision ‘going’ in Attachment H is also made in the context of references to his stroke and a list of effects of that event: short-term memory loss, brain damage and deterioration of vision. It is not obviously an ailment or medical condition that is separate from ailments or effects resulting from his stroke. In my view, the applicant’s representations could not be reasonably understood as articulating (clearly or otherwise) the asserted Eyesight Loss Claim nor that any such claim was a separate reason for revocation of the visa cancellation decision.

32    The Minister’s reasons at para [86] identify the applicant’s submission that in ‘2015 he suffered a stroke in his sleep which caused brain damage and short term memory loss’. While no specific reference is made to the statement that his vision was ‘going’, that is not necessarily an indication that the statement or material was overlooked given that the Minister’s reasons in the relevant paragraph are a brief statement of the applicant’s submissions. The Minister’s reasons identify the main aspects of his health. The Minister has also not mentioned the artery blockage. In support of the summary of the applicant’s submissions direct reference is also made to Attachments D, E, H and H.1 and Attachment H contains the reference to the applicant’s eyesight deteriorating.

33    The material ‘finding’ is at para [92] of the Minister’s reasons. That finding is that the applicant will experience ‘practical, financial and emotional hardship if removed to the United Kingdom, because of his lack of family and social support and the issues he will face accessing medical care’. Further, the Minister’s acknowledges ‘that complications of the stroke [the applicant] suffered in 2015 may be ongoing and impact him when attempting to access services and employment’. The assertion that his vision was ‘going’ in the context in which that assertion was made may well be described as a complication of the stroke. In the same way that memory loss and brain damage may be described as ongoing complications. As already mentioned, even if it is to be read as a separate and unrelated health condition, the ‘claim’ cannot be characterised as giving rise to a substantial and clearly articulated claim or argument that the applicant’s loss of vision independently supported another reason to revoke the original decision as opposed to forming part of the applicant’s representations about collective health concerns as an impediment to his removal to the United Kingdom. For the same reason, it cannot be characterised as an unarticulated claim that is apparent on the face of the materials before the Minister.

34    I do not infer that the Minister failed to understand the applicant’s representations and the ‘case’ he made for the reasons for revocation of the decision to cancel his visa. The Minister’s reasons convey that he understood the applicant’s case in his representations as a whole. The Minster was not required to bring to mind all the minutiae within his knowledge relating to the matter. The facts the Minister was required to bring to mind were those that were salient and gave shape to the matter. That is, facts of such importance that, if they were not considered, it could not be said that the Minister had evaluated the applicant’s representations as a whole.

35    Having regard to the lack of centrality and prominence of the statement about deterioration of his vision, I infer that the Minister attributed more significance to the claims of brain damage and memory loss due to the clear centrality and prominence of those claims in the applicant’s representations. I infer that the Minister was not persuaded that the information about the applicant’s loss of vision was of the same significance or any additional significance to the applicant’s representation that receiving appropriate medical care for his medical conditions and complications resulting from the stroke he suffered in 2015 would be impeded if he were removed to the United Kingdom. The information about the applicant’s deteriorating vision was not of such objective importance to the decision to be made that it can reasonably be said from a failure to make express reference to that information in the reasons that there has been a failure to consider the applicant’s representations as a whole as was the Minister’s statutory duty.

36    These conclusions render it unnecessary to consider the extent to which the absence of any reference to the information about the applicant’s loss of vision render the Minister’s decision legally unreasonable.

Disposition

37    The application must be dismissed with costs.

Associate:

Dated:    14 May 2025