Federal Court of Australia

Taylor v Minister for Immigration and Multicultural Affairs [2025] FCA 517

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time within which the applicant may file an originating application for review of the decision of the respondent dated 8 June 2024 be extended to 27 September 2024.

2.    The draft originating application included with the extension of time application filed on 27 September 2024, as amended by the amended originating application filed on 11 February 2025, be treated as an originating application that was filed on 27 September 2024.

3.    The originating application for review be dismissed.

4.    The applicant pay the respondent’s costs of the proceedings to be agreed or assessed.

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

REASONS FOR JUDGMENT

STELLIOS J:

1    This proceeding concerns an application for an extension of time to lodge an application for judicial review of the decision of the respondent, the Minister for Immigration and Multicultural Affairs, to set aside a decision of the Administrative Appeals Tribunal and cancel the applicant’s Class TY Subclass 444 (Special Category) visa.

2    The applicant is a citizen of New Zealand who arrived in Australia in 1978, aged 4. On 27 April 2023, the applicant’s visa was cancelled by a delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth) (the mandatory cancellation). The applicant was serving a period of imprisonment at the time. The applicant applied for the mandatory cancellation to be revoked. On 24 November 2023, another delegate of the Minister decided not to revoke the mandatory cancellation of the applicant’s visa.

3    On 30 November 2023, the applicant applied to the Tribunal for review of the mandatory cancellation. On 16 February 2024, the Tribunal decided to revoke the mandatory cancellation under s 501CA(4) of the Act. The applicant’s visa was subsequently reinstated, and the applicant was released into the community.

4    On 8 June 2024, the Minister decided to set aside the Tribunal’s decision and cancel the applicant’s visa under s 501BA of the Act. That section relevantly provides:

(2)    The Minister may set aside the [Tribunal’s] decision and 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 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c);

… 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).

5    The Court has jurisdiction under s 476A(1)(c) of the Act to hear an application to review the decision of the Minister. Such an application must be made to the Court within 35 days of the date of the decision: s 477A(1) of the Act. In the applicant’s case, the final day for lodging the application within time was 15 July 2024. The applicant filed the application for extension of time and supporting affidavit pursuant to r 31.23 of the Federal Court Rules 2011 (Cth) on 27 September 2024, 74 days out of time. Included in the application for extension of time was a draft originating application for review of the Minister’s decision, setting out the ground of the application for review (the draft application).

6    On 11 February 2025, the applicant filed an amended originating application to replace that which was attached to the application for extension of time (the amended application). For the purposes of this judicial review proceeding, I have treated the draft application, as amended by the amended application, as the application to be determined (the review application).

7    In short, while I have allowed the application for an extension of time under s 477A(2) of the Act for the applicant to lodge his application, I have dismissed the review application for the reasons that follow.

The Minister’s Decision

8    In his statement of reasons dated 8 June 2024, the Minister identified that, under s 501BA(3) of the Act, the rules of natural justice do not apply to a decision under s 501BA(2) and, therefore, he was not required to give the applicant an opportunity to be heard before making the decision. While s 501BA(3) of the Act did not prohibit him from affording the applicant an opportunity to be heard before making the decision, the Minister chose to proceed without doing so. The Minister recognised that, thereby, the applicant was unable to advance reasons why an adverse decision should not be made. However, the Minister indicated that he had given consideration to information previously given by the applicant in relation to the original request for revocation and the Tribunal proceeding (at [8]‍–‍[10]).

9    Not all of the Minister’s reasons are relevant to this review application. However, it is useful to give an extended summary of the Minister’s reasoning process and to set out the relevant passages in full.

Character test

10    The Minister first found that the applicant did not pass the character test because he had a substantial criminal record (ss 501(6)(a) and 501(7)(c)). Accordingly, the Minister was satisfied that the condition under s 501BA(2)(a) was met (at [11]‍–‍[13]).

National interest

11    The Minister then considered whether cancellation of the applicant’s visa was in the “national interest”. He considered that “matters of national interest include, amongst other things, the protection of the community, the prevention of conduct constituting family violence and the expectations of the Australian community” (at [17]).

Protection of the community

12    Under the heading of “Protection of the community”, the Minister considered the following matters (at [18]‍–‍[42]):

    The applicant’s offending involved violence, crimes of a violent nature against women, acts of family violence, and crimes against government officials. The Minister found the applicant’s “criminal offending to be serious and the aspects of his criminality involving violence and violence against women to be very serious” (at [31]);

    Future reoffending had the potential to cause injury and harm to members of the Australian community; and

    There was a real likelihood that the applicant would reoffend.

13    Taking these matters into account, the Minister considered “that the need to protect the Australian community from criminal or other serious conduct weigh[ed] heavily in support of visa cancellation in this case in the national interest” (at [43]).

Expectations of the Australian Community

14    Under the heading of “Expectations of the Australian community”, the Minister accepted “that the Australian community will generally have a higher level of tolerance of criminal conduct by non-citizens who have lived in the Australian community most of their life”. However, considering the nature of the applicant’s “repeated and very serious offending”, the Minister also found that “the Australian community would expect [the applicant] to no longer have the privilege of holding a visa in Australia” (at [49]). The Minister attributed significant weight to the latter finding (at [50]).

15    Having regard to these considerations, the Minister concluded that it would be in the national interest to cancel the applicant’s visa (at [53]).

Countervailing factors

16    The Minister then considered whether, despite this conclusion, there were any relevant factors that might support a discretionary decision under s 501BA not to cancel the applicant’s visa (at [55]). In addition to the matters already considered, the Minister took into account the following:

    The best interests of minor children (at [56]‍–‍[60]): the Minister accepted “that, in a general way, the best interests of [the applicant’s] minor nieces and nephews may be best served” (at [60], original emphasis) by the applicant remaining in Australia. However, the Minister gave this consideration minimal weight.

    Ties to Australia (at [61]‍–‍[70]): the Minister took account of the fact that the applicant arrived in Australia at four years of age and, apart from five brief absences and one two-year absence, had lived in Australia continuously for 46 years. This was given considerable weight. On the available evidence, the Minister found that the applicant’s immediate family in Australia (three adult children and a sister) may experience some degree of hardship if his visa were cancelled; however, that hardship would not be significant. There was also no evidence of the applicant’s ties to extended family or the broader community, although the Minister accepted that the applicant would have developed strong ties over the past 46 years. While the applicant had engaged in some work, he had been in receipt of a Disability Support Pension for the last 25 years. While his capacity to work was limited, his contribution to the Australian community in this respect was not substantial. In conclusion, the Minister considered that, on balance, the strength, nature and duration of the applicant’s ties to Australia weighed against cancellation of the visa.

    Impediments if removed to New Zealand (at [71]‍–‍[77]): the Minister also considered “the extent of any impediments that [the applicant], if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of New Zealand” (at [71]). The factors the Minister took into account included the applicant’s age and health, and language and cultural barriers. The Minister accepted that the applicant “was seriously assaulted during 1997, which resulted in him receiving significant head injuries and brain damage with permanent effects, including epileptic fits and impaired cognitive function” (at [72]). The injury, and its effects, had been recognised in earlier parts of the reasons as impacting the applicant’s capacity to work and as a factor contributing to his past conduct. The Minister considered it unlikely that the applicant would face substantial linguistic or cultural barriers in New Zealand. While it was accepted that the applicant “may face some obstacles in New Zealand given he [had] not lived there since childhood”, the Minister did not consider those obstacles “to be insurmountable” (at [73]).

17    It was under the heading of “Impediments if removed to New Zealand” that the Minister considered “Social, medical and/or economic support available in” New Zealand. I set out the relevant paragraphs in full:

74.    I find that Mr TAYLOR will, if needed, have access to health and welfare services in New Zealand on the same basis as other nationals and which are comparable to services in Australia. I also acknowledge that Mr TAYLOR would need to establish a new network of contacts for medical support, if needed. I also accept that Mr TAYLOR may face hardship being separated from his family and trying to establish himself in a new environment. However, Mr TAYLOR does have some work experience which could assist him in finding work. Mr TAYLOR also has some family in New Zealand including his father and several uncles and aunts who could provide some degree of support to assist him in establishing himself.

75.    The AAT noted that Mr TAYLOR was 49 years old and suffered from a significant traumatic brain injury. The AAT noted that Mr TAYLOR had been treated for depression and anxiety, and had a drug and alcohol issue in the past. The AAT also found that Mr TAYLOR “may” suffer from schizophrenia. Although the AAT accepted that Mr TAYLOR could continue to receive commensurate treatment in New Zealand, it was of the view that the brain injury presented a “significant impediment” in Mr TAYLOR’s ability to settle in New Zealand and navigate a different environment. The AAT also accepted that Mr TAYLOR would have access to the same social, medical and economic support available to other citizens of New Zealand. However, that access must be considered in the context of his brain injury which would impact his ability to understand, engage and navigate new procedures. The AAT was satisfied that if removed from Australia, Mr TAYLOR would experience “significant mental, emotional, practical and financial hardships, which would be difficult to overcome given his significant brain injury”. The AAT gave “significant weight” in favour of revocation to this consideration …

76.    I accept that Mr TAYLOR will face impediments if removed to New Zealand in establishing himself and maintaining basic living standards. I accept that these impediments are likely to be exacerbated by his disability, mental health, and drug and alcohol issues. However, Mr TAYLOR will have access to comparable welfare and health services which will mitigate these impediments. While these impediments are likely to cause mental, emotional, practical and financial hardship, I consider that they are not insurmountable.

77.    I give this consideration some weight against cancellation.

18    The Minister then concluded that, having “weighed up the countervailing factors against the national interest considerations” (at [81]), the former factors were “clearly outweighed” (at [16]) by the latter considerations. Given the conclusions reached, the Minister decided to exercise his discretion to set aside the Tribunal’s decision and cancel the visa under s 501BA of the Act (at [87]).

The Review Application

19    As indicated, the application for an extension of time filed on 27 September 2024 included the draft application, which set out the grounds for review of the Minister’s decision. The draft application sought the following relief:

1.    There issue absolute in the first instance a writ of certiorari, directed to the respondent, quashing his decision made on 8 June 2024.

2.    There issue absolute in the first instance a writ of mandamus, directed to the respondent, requiring him to determine the applicant’s application for review according to law.

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

20    On 11 February 2025, a day after the Minister filed written submissions ahead of the hearing, the applicant filed the amended application. The claimed relief remained the same as that claimed in the draft application, however, amendments were made to the grounds of the application as follows (with the amendments to the draft application marked in the usual way):

Grounds of Application

1.    The Minister’s reasoning was legally unreasonable.

a)    The Applicant has suffered significant physical and mental trauma in Australia from an injury he received from an assault in 1997. He now has the need for health services to heal and manage the effects of the trauma.

b)    In respect of this, at [74] the Minister writes:

“I find that Mr TAYLOR will, if needed, have access to health and welfare services in New Zealand on the same basis as other nationals and which are comparable to services in Australia. I also acknowledge that Mr TAYLOR would need to establish a new network of contacts for medical support, if needed”

c)    The proposition in the passage quoted does not have an evident and intelligible basis. Particularly, the Minister’s materials lack the basis for his finding that New Zealand health services would be comparable to Australia in standard and accessibility.

d)    Secondly, the Applicant would face hardship if removed to New Zealand

e)    In regard to this, at [76] the Minister writes:

“I accept that Mr TAYLOR will face impediments if removed to New Zealand in establishing himself and maintaining basic living standards. I accept that these impediments are likely to be exacerbated by his disability, mental health, and drug and alcohol issues. However, Mr TAYLOR will have access to comparable welfare and health services which will mitigate these impediments. While these impediments are likely to cause mental, emotional, practical and financial hardship, I consider that they are not insurmountable”

f)    In this quoted passage also, the proposition does not have an evident and intelligible basis. Particularly, the Minister’s materials lack the basis for the finding that New Zealand welfare services would be comparable to Australia in standard and accessibility.

g)    The Minister’s decision discloses 2 findings which lack a basis that is evident. Those 2 findings also lack an intelligible basis. The decision is legally unreasonable as a consequence.

h)    The Minister’s decision includes considerations which favour the Applicant. If the 2 findings without an evidentiary basis were not made, then the balance of considerations could have favoured the Applicant.

a)    The Applicant has suffered significant physical and mental trauma in Australia from an injury he received from an assault in 1997. He now has the need for health services to heal and manage the effects of the trauma.

b)    The AAT made a determination in favour of the Applicant. The AAT’s concerns were the impediments to the Applicant establishing himself and maintaining basic living standards in New Zealand. In particular, the impediments posed by significant brain injury.

c)    In regard to this, at [76] the Minister writes:

“I accept that Mr TAYLOR will face impediments if removed to New Zealand in establishing himself and maintaining basic living standards. I accept that these impediments are likely to be exacerbated by his disability, mental health, and drug and alcohol issues. However, Mr TAYLOR will have access to comparable welfare and health services which will mitigate these impediments. While these impediments are likely to cause mental, emotional, practical and financial hardship, I consider that they are not insurmountable”

d)    Two findings in the paragraph are relevant: “The Applicant’s impediments will be mitigated by welfare and health services”; and “the hardship is not insurmountable.” Upon making these 2 findings the Minister arrives at the opposite conclusion to the AAT.

e)    However, the 2 findings are not supported by probative material or logical grounds. The Minister has erred in this respect for the reasons stated in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [145] and [147].

f)    Secondly, the Minister has inferred that with access to health and welfare services which compare to those in Australia, the Applicant will establish himself and maintain basic living standards. In making that inference, the Minister has assumed that health and welfare services in Australia enable the Applicant to attain that status.

g)    The assumption is unwarranted. The Applicant cannot establish himself and maintain basic living standards. The Minister has erred in this respect for the reasons stated in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [45].

h)    The Minister’s decision discloses 2 errors in the reasoning. The decision is legally unreasonable as a consequence of the errors.

i)    The Minister’s decision includes considerations which favour the Applicant. If the 2 errors were not made, then the balance of considerations could have favoured the Applicant.

21    As can be seen, the draft application sought to challenge the Minister’s findings in paragraphs [74] and [76] of his reasons on the basis of legal unreasonableness.

22    The amended application omitted the challenge to the Minister’s finding in paragraph [74]. Instead, it elaborated on the two findings said to be made by the Minister in paragraph [76], and the reasons why those findings lacked an intelligible basis rendering the Minister’s decision legally unreasonable. Those reasons included a repetition of contentions put in the applicant’s written submissions, filed on 30 January 2025, by reference to the judgment of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [145],‍ that the two findings were not supported by probative or logical grounds.

23    The amended application then went further than the draft application by asserting a second error in the Minister’s reasons that was alleged to constitute legal unreasonableness. In this respect, the amended application again repeats contentions put in the applicant’s written submissions filed on 30 January 2025 that the Minister erred for reasons set out in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 per Kenny, Kerr, and Perry JJ at [45]. This second error was not identified separately in the original draft application.

24    However, as they were developed in written and oral submissions, an overlap in the two alleged errors emerged. Further, the second alleged error was advanced in the applicant’s written submissions and addressed in the Minister’s submissions, and no issue was taken by the Minister that the applicant had pressed an error not separately identified in the draft application.

25    Because of the conclusions I have reached in this proceeding, it is unnecessary to deal with the procedural irregularity produced by the filing of the amended application.

26    Hereafter I will refer to the two alleged errors in the review application as the probative material error (paragraphs [1](d)-(e) of the review application) and the unwarranted assumption error (paragraphs [1](f)-(i) of the review application).

Application for Extension of Time

27    Before considering the review application, it is necessary to determine the application for an extension of time to hear the review application.

28    An order extending the time for lodging an application may be made if it is in the interests of the administration of justice to do so: s 477A(2)(b) of the Act. As Kiefel CJ, Gageler, Keane, and Gleeson JJ said in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at 589 [12]:

Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

(Footnotes omitted.)

See also Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [16] per Thawley J.

29    The reasons for the applicant’s delay of 74 days were explained in an affidavit of his solicitor, Ms Marta Mamarot, affirmed on 23 September 2024 in the following terms:

[5]    There are several reasons why the Applicant did not file an application within 35 days after the Minister’s personal decision was handed down.

[6]    Firstly, the Applicant has a significant traumatic brain injury. This effects [sic] his short-term memory and has impacted his ability [to] access legal advice and assistance. As a result, the Applicant was unable to lodge the appeal during the 35-day period.

[7]    The Applicant has applied for Legal Aid with difficulty given his mental impairment. However, no decision has been [made] by Legal Aid till date. The Applicant has no funds to pay for legal costs. This application is pro bono at [t]his stage.

[8]    The Applicant has been detained at Villawood Detention Centre since around July 2024.

30    In exercising my discretion under s 477A(2), I have taken account of the following considerations:

    The applicant’s delay of 74 days could not be characterised as minor. That militates against an extension of time.

    I accept that the applicant’s brain injury, alongside his detention, would have impacted his capacity to bring the application within time. Contrary to the Minister’s submission, that impact is not diminished by the fact that the applicant was able to file his Tribunal application on time. The circumstances that prevailed at the time that the Tribunal application was filed sheds little light on the prevailing circumstances at the time the application to this Court was to be made.

    The Minister accepted in his submissions that there would be no prejudice suffered by him if an extension of time were granted.

    While, ultimately, I have decided that the ground for review has not been made out, it was not without merit (Tu’uta Katoa at 591 [17]).

    I am mindful that a decision not to extend time will deny the applicant a right of appeal against my decision (see Federal Court of Australia Act 1976 (Cth), ss 20(3)(b) and 24(1AA); see also Tu’uta Katoa at 591 [17]).

31    On balance, I am satisfied that it is in the interests of the administration of justice to extend time under s 477A(2) for the applicant to lodge his application.

Merits of the Review Application

The applicant’s submissions

32    In written submissions, counsel for the applicant developed the allegations supporting the probative material error and the unwarranted assumption error.

The alleged probative material error

33    As to the alleged probative material error, the submissions commenced by referring to answers provided by the applicant in his application to the Tribunal. In those answers, the applicant stated that, due to his brain injury, he relies “heavily on the fact living in australia the whereabouts of my support family doctors and hospitals for my routine check ups are all in Australia which I still struggle to remember where and when I have these meetings or appointments” (sic). The applicant also stated in those answers that he had “no immediate family in NZ” or “know relatives in Australia” (sic).

34    The applicant’s written submissions also referred to the statement given to the Tribunal by the applicant’s sister, who stated that “part of the problem in the past with Glenn has been that he hasn’t had that ongoing support and has fallen through the cracks in terms of accessing ongoing medical treatment for his brain injury”.

35    The written submissions then referred to the applicant’s contention before the Tribunal that he was particularly vulnerable after his brain injury and “would face great obstacles in establishing himself in New Zealand and maintaining a basic living standard”. The applicant did not dispute that he would have access to the same medical and economic support available to all New Zealand citizens; however, he submitted before the Tribunal that “given his traumatic brain injury ... the Applicant wouldn’t have the capacity to be self sufficient without intensive support”.

36    The applicant’s submissions then pointed to the following findings made by the Tribunal which were favourable to the applicant:

    “The Tribunal is of the view that the brain injury presents a significant impediment in the Applicant’s ability to settle in New Zealand, and navigate a different environment”;

    While the applicant would have access to the same social, medical and economic support as other New Zealanders, “that access must be considered in the context of his brain injury which would impact his ability to understand, engage, and navigate new procedures”; and

    “[T]he Tribunal is satisfied that if removed from Australia, the Applicant would experience significant mental, emotional, practical and financial hardships, which would be difficult to overcome given his significant brain injury”.

37    The applicant submitted that the “substantive issue then, for the Tribunal was the extent of the impediments faced by the Applicant due to his significant brain injury. The decision was favourable to the Applicant on this basis”.

38    Having extracted paragraphs [71] and [75]-[76] of the Minister’s reasons, the applicant further submitted that “[t]he substantive issue for the Minister was the capacity for the Applicant to establish himself and maintain basic living standards in New Zealand”. Having referred to a statement by Gummow J in Eshetu at [145] on the scope of the reasonableness ground of review, this substantive issue was then described in the applicant’s written submissions as the “requisite satisfaction” to be reached by the Minister. I will return to the difficulties with this submission later in these reasons at [61].

39    The Minister’s conclusions set out earlier in these reasons at [17] were said to be contrary to the applicant’s position before the Tribunal and the Tribunal’s “decisive finding”. The applicant submitted that the Minister’s findings were not “supported by probative material, or logical grounds”.

40    The applicant also relied on the claimed similarities between the circumstances in this case and those in the decision of a Full Court of the Federal Court in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225. In Hands, Allsop CJ stated that “[g]enuine consideration of the human consequences demands honest confrontation of what is being done to people” (at [3]). The applicant argued that, in light of his brain injury and the associated impediments created to establishing himself and maintaining a basic standard of living, the Minister should have demonstrated a greater level of engagement with those impediments and why they were “not insurmountable”.

41    In contending that the Minister’s conclusion failed to evidence genuine consideration, the applicant also drew in aid statements in Carrascalao v Minister for Immigration and Border Force (2017) 252 FCR 352; [2017] FCAFC 107 at [46]–[47] (per Griffiths, White, and Bromwich JJ) that the Minister was required to engage in “an active intellectual process in giving consideration to the relevant matters” by “conduct[ing] an evaluative judgment, taking into account the available evidence and reasonable inferences”. The Minister’s sweeping statement that the impediments to the applicant establishing himself and maintaining basic living standards in New Zealand were “not insurmountable” did not demonstrate an active intellectual process directed at the relevant circumstances and was at odds with any reasonable reading of the whole of the material.

42    It should be noted that, in oral submissions, the applicant contended that, having chosen to proceed without giving the applicant an opportunity to be heard, the Minister then substituted assumptions for matters that should have come before him had the applicant been offered procedural fairness. However, counsel for the applicant disavowed any argument based on a breach of procedural fairness. Given the terms of s 501BA(3), such an argument could not have been maintained: see Palmer v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 156; [2024] FCAFC 154 at [47] per Derrington and Hespe JJ (Palmer [2024]); Tereva v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2022) 294 FCR 270; [2022] FCAFC 142 at [17] per Mortimer J; [37] and [39] per Bromwich J; [111] per Thomas J.

The alleged unwarranted assumption error

43    In relation to the alleged unwarranted assumption error, the applicant argued that the relevant assumption underpinning the Minister’s decision was that “health and welfare services enable the Applicant to overcome his impediments and maintain basic living standards, in Australia”. From that, it was said, the Minister’s decision reasoned that comparable health and welfare services in New Zealand would be sufficient.

44    However, the applicant contended that the evidence before the Tribunal indicated that he had experienced difficulties accessing health and welfare services in Australia and been unable to access ongoing medical treatment for his injury. Additionally, the applicant asserted that, prior to his detention following the Minister’s decision on 8 June 2024, the applicant “was found in a public park in Parramatta” by the Australian Border Force and “had been homeless for over 4 months”. It was submitted that “the Applicant could not establish himself and maintain basic living standards in the community” and, consequently, the Minister “had no probative material or logical grounds to infer that comparable services in New Zealand would do better”. The applicant posited that, “[h]ad the Minister appreciated the Applicant’s homeless condition, the requisite satisfaction would not have been reached”. I note that the applicant was not homeless at the time of the Tribunal decision, and evidence of his homelessness after the Tribunal’s decision was presented to the Court in the form of an affidavit, the admissibility of which I discuss later in these reasons at [120]-[132].

45    The argument was further refined in the course of oral submissions. Counsel for the applicant contended that evidence before the Minister, in the form of statements by the applicant and his sister, and the applicant’s homelessness after 16 February 2024 until his subsequent detention, demonstrated that he could not establish himself and maintain basic living standards in the community. The efficacy of the health and welfare services in Australia was an unfounded assumption made in the absence of offering the applicant an opportunity to address his circumstances. There was nothing in the applicant’s Australian experience to infer that the impediments in New Zealand would not be insurmountable. The comparison of the health and welfare results in Australia to the likely results of the applicant living in New Zealand had to be based in reality, and the only proper inference to be drawn from the information before the Minister was that comparable services in New Zealand would render a comparable (or perhaps worse) outcome. That is, the impediments to be faced in New Zealand would be, as in Australia, insurmountable.

The respondent’s submissions

46    The written submissions for the Minister addressed paragraph [74] of the Minister’s reasons. As has been explained earlier in these reasons, the draft application in its original form contained a challenge to the finding in paragraph [74] that New Zealand health services would be comparable to Australia in standard and accessibility. That challenge was, however, omitted when the amended application was filed a day after the filing of the Minister’s written submissions. Although it is not necessary to deal with that challenge separately, for the reasons that follow at [99]-[102], it would have had no prospect of success.

The alleged probative material error

47    In relation to the probative material error alleged to arise from paragraph [76] of the Minister’s reasons, the Minister submitted that:

    The Minister relied on his personal or accumulated specialised knowledge to find that the applicant would have access to comparable health and welfare services in New Zealand (in reliance, by analogy, on the High Court’s decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41); and

    There was a rational foundation for the Minister’s finding that the applicant’s impediments were not insurmountable:

his ability to access comparable welfare and health services (which were found to mitigate those impediments); the support that he could receive from members of his family in New Zealand to assist him in establishing himself; and his work experience (which could assist him in securing employment).

48    In relation to the finding that New Zealand’s health and welfare services are comparable to those in Australia, counsel for the Minister contended in oral submissions that the Court could infer that the Minister relied either on his or his Department’s specialised knowledge or, alternatively, on the Tribunal’s finding that the applicant could continue to receive commensurate treatment in New Zealand. In support of the former, the respondent relied upon Viane and CCU21 v Minister for Home Affairs (2022) 398 ALR 535; [2022] FCA 28. The Minister argued that, either way, there was a rational basis for his finding that the applicant would have access to comparable health and welfare services in New Zealand.

49    It is convenient to note at this stage that the applicant sought in oral submissions to distinguish Viane, in particular, by pointing to the following passage in the High Court’s judgment at [21]:

It would, one would hope, be a rare case where a fact is asserted in support of a reasoned outcome under s 501CA of the Act which has no basis for its existence. However, there have been exceptions in extreme and rare cases where the Minister has made particular or personal findings about an applicant, which could not have been the subject of any pre-existing personal or specialised knowledge (or common knowledge), and were not otherwise supported in any way. Examples of this have included findings made in the absence of any evidence or supporting material about the danger an applicant might pose in the future to the Australian community, and about the type of hardship an applicant might personally suffer if deported [See, eg, Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 …].

50    Connecting this passage to the cited case of Hands, the applicant submitted that “hardship suffered personally is the very thing which could not have been the subject of pre-existing personal or specialised knowledge and are not otherwise supported in any way to both Mr Hands and … the applicant in this case”. The point was made again in reply, where counsel for the applicant emphasised that the question of the comparability and efficacy of the health and welfare services in New Zealand should have been assessed in the personal circumstances of the applicant, not efficacy to society at large. I will return to Hands and Viane later in these reasons.

51    In relation to the support that the applicant might have from his father in New Zealand, the Minister contended in oral submissions that he was not bound by the Tribunal’s finding about the applicant’s father’s capacity to assist him and, in any event, the Tribunal had expressed itself in the equivocal terms that it was “doubtful that he would be able to assist the Applicant in a meaningful way". That was not a definitive finding, and so the Minister’s reliance upon the applicant’s father being in New Zealand was not irrational.

52    At the hearing, counsel for the Minister was asked to identify the source of the information relied upon by the Minister in relation to other family members based in New Zealand. The Court was directed to the applicant’s responses to a questionnaire in support of revocation of the cancellation decision. In response to a question requiring him to list all living parents, step-parents, brothers, sisters and adult children, the applicant listed his father as residing in New Zealand, and twelve other relatives residing in Australia. The questionnaire then asked the applicant to state how many other relatives he had in Australia or overseas. The applicant responded that he had eight uncles/aunts, three of whom were in “NZ”. While there was no information before the Minister that the applicant’s uncles and aunts in New Zealand would be able to assist him if he were removed to New Zealand, the Minister submitted that there was no statement to the contrary. This was in contrast to a statement by the applicant in a statutory declaration that his father “is old and sick”. The Minister argued that, in those circumstances, it was not legally unreasonable for him to infer that the applicant’s father, uncles and aunts may provide some degree of support to assist the applicant to establish himself in New Zealand.

53    In relation to work capacity, the Minister also contended that there was evidence before him, in the Tribunal’s reasons and in sentencing submissions to the Local Court of New South Wales in 2021, that the applicant had worked in Australia for many years and sought work opportunities.

54    It is also convenient to note at this stage that counsel for the applicant sought to emphasise in oral submissions that the other evidence relied on by the Minister to support his findings; namely, the applicant’s work experience and some family in New Zealand, did not overcome the need to find evidence supporting the comparability and efficacy of the health and welfare services in New Zealand. Those other matters were equivocal in their support of the Minister’s finding that the impediments were not insurmountable. By contrast, the Minister’s references to comparable health and welfare services were unequivocal in their support of that finding. The applicant contended that it was not rational to disaggregate those health and welfare services from the finding and, in order to make a finding about the efficacy of those services, the Minister needed to have a probative basis — and that probative basis was lacking.

55    In response to the applicant’s reliance on Hands, counsel for the Minister contended in oral submissions that Hands was distinguishable because there was some evidentiary foundation for the Minister’s findings in relation to the applicant. Furthermore, there was no failure by the Minister to consider the gravity of the consequences for the applicant: there was extensive consideration in the Minister’s reasons of the applicant’s ties to Australia and the impediments he may face if returned to New Zealand.

56    Counsel for the Minister also contended that some care must be taken with the observations in Hands, referring in support to Full Court decisions in Tikomaimaleya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 199 and Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137, and to statements made by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17.

57    The Minister further submitted that the observations in Hands and Carrascalao were distinguishable because they concerned a different decision-making power. Section 501BA(2) does not enliven a duty to have regard to any representations, and a decision under that section may be made on the basis of something other than the most current or up-to-date information: referring to EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 298 FCR 492; [2023] FCAFC 130 and Palmer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1113 (Palmer [2023]).

The alleged unwarranted assumption error

58    The Minister submitted that he did not act on an unwarranted assumption in reaching his findings. In particular, in written submissions the Minister contended that there was no evidence before him that the applicant had been homeless for four months as at 8 June 2024: the evidence was that the applicant had a place of residence.

59    Addressing the unwarranted assumption error in oral submissions, counsel for the Minister again pointed to the applicant’s responses to the questionnaire. Under the heading, “Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?”, the applicant responded that, “My concerns is that I had serious brain damage. Which is being managed locally by professionals who have delt with me for many years” (sic). That statement was evidence before the Minister that the applicant considered that his medical condition was being managed in Australia. Consequently, the Minister submitted, there was no unwarranted assumption about the adequacy of medical care in Australia.

Consideration

The applicable legal principles

60    Pursuant to s 501BA(2), the Minister is empowered to set aside the Tribunal’s decision and cancel the applicant’s visa if he is satisfied of two conditions: first (under s 501BA(2)(a)), that the applicant did not pass the character test because of the operation of s 501(6)(a) (substantial criminal record on the basis of s 501(7)(a), (b) or (c)), or s 501(6)(e); and secondly (under s 501BA(2)(b)), that the cancellation was in the national interest. The applicant’s challenge is not to the Minister’s satisfaction of those statutory conditions. Instead, the review application asserts legal unreasonableness by the Minister in making the findings of fact identified in that application in the course of exercising the discretion under s 501BA(2).

61    It is important to be precise about the Minister’s jurisdiction to exercise the discretion under s 501BA(2). The applicant contended that the requisite satisfaction to be reached by the Minister was whether the applicant had capacity to establish himself and maintain basic living standards in New Zealand. This submission is inaccurate. The statement by Gummow J in Eshetu relied on by the applicant concerned the review of a decision-maker’s satisfaction of statutory conditions for the exercise of power. Where a decision-maker’s jurisdiction is conditioned by such statutory criteria, jurisdictional error arises where the decision-maker has not reasonably formed the opinion as to the satisfaction of those statutory criteria: Eshetu at [138]. The applicant’s capacity to establish himself and maintain basic living standards is not a conditional criterion for the exercise of the discretionary power in s 501BA(2).

62    Nonetheless, it may be accepted that the discretion in s 501BA(2) must be exercised reasonably: see Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 33 at [57] per Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ; Palmer [2024] at [101] and [114] per Derrington and Hespe JJ; [154] and [156] per Feutrill J; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [58] per Allsop CJ, Griffiths and Wigney JJ; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [4] per Allsop CJ; [53], [61] and [68] per Griffiths J; [91] per Wigney J; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [43]‍–‍[44] per Allsop CJ, Robertson and Mortimer JJ. If the exercise of the discretion itself were legally unreasonable, the decision would be affected by jurisdictional error and, accordingly, invalid. Materiality was not raised by the parties as an issue. It was accepted by the parties during the hearing that the error, if it were established, would likely be material: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; (2024) 98 ALJR 610; [2024] HCA 12 at [2]‍–‍[8] per Gageler CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ.

63    The following observations can be made about the unreasonableness ground of review:

(1)    The dimensions of legal unreasonableness were addressed by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. At [76], Hayne, Kiefel, and Bell JJ said that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. Similarly, Gageler J said (at [105] quoting from Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47]):

Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

(2)    The applicant bears the burden of establishing the ground of review (Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [24] per French CJ, Bell, Keane, and Gordon JJ), and the threshold is high: Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 at [27] per Kiefel CJ, Bell, Keane, Gordon, and Edelman JJ; Li at [108] and [111] per Gageler J; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [11] per Kiefel CJ; Gubbay v Minister for Home Affairs [2020] FCA 1417 at [48] per Reeves J.

(3)    The question of legal unreasonableness “is invariably fact dependent” (Eden at [63] per Allsop CJ, Griffiths and Wigney JJ; Singh at [42] per Allsop CJ, Robertson and Mortimer JJ) and “the indicators … are found in the scope, subject and purpose of the particular statutory provisions in issue”: Stretton at [61] per Griffiths J; see also at [9] per Allsop CJ; [92] per Wigney J; Eden at [63] per Allsop CJ, Griffiths and Wigney JJ; Singh at [48] per Allsop CJ, Robertson and Mortimer JJ. In that respect, it is important to note that:

(a)    there is no statutory requirement in exercising the discretion in s 501BA(2) “to have regard to any particular matter”: Vargas v Minister for Home Affairs 286 FCR 387; [2021] FCAFC 162 at [61] per McKerracher, Markovic and SC Derrington JJ; Palmer [2024] at [44] per Derrington and Hespe JJ; [183] per Feutrill J. The power has been described as “draconian” (Tereva at [14] per Mortimer J) and “an extreme and largely unaccountable” one (Tereva at [39] per Bromwich J);

(b)    there is no requirement for the Minister to invite representations from the applicant before exercising the discretion: Vargas at [61] per McKerracher, Markovic, and SC Derrington JJ; and

(c)    the rules of natural justice do not apply to an exercise of the discretion: s 501BA(3); Palmer [2024] at [46] per Derrington and Hespe JJ.

(4)    The Court’s role “in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory”: Eden at [59] per Allsop CJ, Griffiths and Wigney JJ. The Court is not to substitute its own view of what decision should have been made or remake the decision according to what it considers to be reasonable. The standard of scrutiny to be applied is reflected in what Mortimer CJ said in Minister for Immigration, Citizenship and Multicultural Affairs v Lieu (2023) 297 FCR 162; [2023] FCAFC 57 at [81]:

To reach a conclusion that an exercise of power is legally unreasonable involves a level of confidence on judicial review that either the outcome of the exercise of power, or the reasoning that led to that outcome (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]) so departed from the underlying premises of the exercise of public power that it has resulted in the power entirely miscarrying, in effect being an abuse of power. See generally Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 … at [80] (Nettle and Gordon JJ). In this context, the term “abuse” of power refers to an exercise of power other than for the purposes and within the limits conferred.

64    I will deal separately with the two alleged errors to support the unreasonableness allegation: the alleged probative material error and the alleged unwarranted assumption error.

The alleged probative material error

65    The applicant’s submission is that two impugned findings by the Minister were legally unreasonable; namely that, first, the applicant’s impediments will be mitigated by access to comparable health and welfare services, and secondly, the impediments are not insurmountable. The argument, had the following features:

    The Minister was required to give genuine consideration to the impact of the decision on the applicant through an active intellectual process;

    Genuine consideration required more than reliance on a sweeping statement that the applicant’s impediments were not insurmountable; instead, it should have involved a greater level of engagement with the applicant’s particular circumstances;

    The Minister was required to consider the efficacy and comparability of the health and welfare services in New Zealand in relation to the personal circumstances of the applicant: general information about comparability and efficacy of those services to services in Australia was not sufficient; and

    Not having considered the efficacy and comparability of those services in relation to the personal circumstances of the applicant, the balance of the evidence relied upon by the Minister (going to general efficacy and comparability of those services, the potential assistance of relatives in New Zealand, and previous work experience) could not explain the two impugned findings. The result was that the Minister relied upon assumptions where there were gaps in information: assumptions that had proven to be unrealistic in the applicant’s experience in Australia. It can be seen that there is an overlap between this feature of the submissions on the alleged probative material error and submissions on the alleged unwarranted assumption error to be considered later in these reasons.

The decision in Hands

66    Given its centrality to the applicant’s submissions, I will commence the analysis of the alleged probative material error by considering the case of Hands. The appellant in Hands had his visa cancelled under s 501(3A) of the Act following conviction for an offence for which he was sentenced to 12 months’ imprisonment. He was invited to make representations to the Minister as to why the Minister should revoke that cancellation under s 501CA(4).

67    The appellant provided information about his de facto partner of 14 years, who he planned to marry after his release, and her six grandchildren. He stated that they would be devastated if he were removed to New Zealand, and that his relationship would not survive. He also stated that his mother and brother lived in Australia and he had no support in New Zealand. In Australia, he would have accommodation with his wife-to-be, and employment in the building and construction industry. Additionally, from the age of 12 or 13, he had been taken in and accepted by an Aboriginal community. The appellant provided a letter from a woman who considered herself to be his sister, outlining his adoption by a large Indigenous family and his involvement in the Indigenous community. She too highlighted the impact that his removal would have on his family, including Indigenous children and grandchildren by his first partner.

68    This information led Allsop CJ to say that the appellant had “worked all his life and [had] become, through his family connections (and so kinship), through his acceptance as being part of the community, and through his life as a Koori man in all the life of the community in the tradition or culture of the Aboriginal community, an Aboriginal or Koori man of the community” (at [17]). His Honour said further (at [22]):

The materials that were before the Assistant Minister that came from Mr Hands, his partner, family and community members reveal with some evocative elegance from their modest understatement and their lack of hyperbole, the possibly (indeed likely for some) devastating human consequences that removal will have for Mr Hands, his partner, his children (adult), his grandchildren and his family; and the effect on the Aboriginal community itself of taking one of its members — an accepted Koori man — away from it.

69    The reasons provided by the Assistant Minister in support of the decision not to revoke the cancellation of the appellant’s visa had outlined the strength, nature and duration of ties that the appellant had to Australia and the extent of impediments if removed. The Assistant Minister concluded (see Hands at [31]):

While I accept that Mr HANDS may experience some emotional and psychological hardship if removed from Australia and separated from his family, specifically his de facto partner, New Zealand is culturally and linguistically similar to Australia and has comparable standards of health care, education, social welfare and housing support. As a citizen of New Zealand, Mr HANDS will have access to these services equal to that of other citizens of that country, which would help to facilitate his integration back into its society. Whilst I acknowledge Mr HANDS may experience short term hardship, I find that over time he would be capable of settling In New Zealand without undue difficulty (sic).

70    The Chief Justice found “nothing in the material that could permit a rational finding that Mr Hands ‘may experience short term hardship’”. His Honour continued (at [32]):

To any person reading the material before the Assistant Minister, the only conclusion reasonably open would be that the removal of Mr Hands would in all likelihood be a crushing blow to him and his partner, deeply affecting him, his family and his community. The proposition that there would be short term hardship was unsupported by any material, and utterly at odds with any reasonable reading of the whole of the material.

71    The Assistant Minister’s finding was not “peripheral”; it lay at the heart of his “assessment of the effect of [the] decision on the people concerned” (at [33]). It “was a central and crucial consideration” (at [45]).

72    His Honour’s conclusions as to probative material were expressed at [44]‍–‍[45]:

[44]    … I do not consider that there was any rational or probative evidence to support such a conclusion that his emotional and psychological hardship would be short term. All the material, if considered, would lead any reasonable person to a conclusion that this decision, unrevoked, will cause lifelong grief and psychological hardship to a number of people, including Mr Hands. The existence of the same language and similar culture in New Zealand and the standard of healthcare and social services there are matters hardly to the point.

[45]    … The separation of Mr Hands from his community, his wider family, his partner, his children, grandchildren and step-grandchildren is a life-changing decision, potentially life-destroying. The statements that he “may experience some emotional and psychological hardship” and “may experience short term hardship, [but] would be capable of settling in New Zealand without undue difficulty” are findings of fact simply incapable of being reasonably made by any decision-maker, there being no evidence at all to support them, and all evidence being to the contrary to a reasonable decision-maker.

[46]    The making of the findings, without any material to found them, given their central importance in the reasoning, is a sufficient basis to conclude that there has been jurisdictional error.

73    The same conclusion was earlier stated at [2]: “[t]he reason that the decision has been affected by jurisdictional error was the making of an important finding of fact without any underlying material or evidence to support it”.

74    There had been three grounds of review before the primary judge: first, that the Assistant Minister did not give real consideration to the representations made to him; secondly, that there were findings of fact for which there was no evidence, and indeed contrary evidence; and thirdly, that the decision was legally unreasonable. The third allegation of unreasonableness was not renewed on appeal.

75    His Honour’s conclusion at [2] and [46] went to the no evidence ground of review. That is clear from the following passage at [47]:

The fact that this could be said raises doubt that those drafting the reasons and the Minister adopting them have considered the whole human consequences of the decision, and thus whether real consideration was given to the totality of the representations. It is sufficient to rest, however, on the conclusion that a central finding of fact was made without any probative foundation.

76    Markovic J expressly agreed “with the orders proposed by the Chief Justice and with his Honour’s reasons” (at [54]). Steward J agreed with Allsop CJ’s conclusion “that the finding made by the Minister that Mr Hands ‘may experience some emotional and psychological hardship’ and only ‘short term hardship’ but would be capable of settling in New Zealand ‘without undue difficulty’, was not supported by any evidence at all”, resulting in jurisdictional error (at [55]).

77    Three points emerge from the decision in Hands: first, that the result turned on a successful no evidence ground; secondly, that any finding of unreasonableness was parasitic on the no evidence finding; and, thirdly, that no concluded view was reached on whether there had been “such a failure to appreciate the gravity of the consequences of the decision that one can conclude that there [had] not been the required reality of consideration” (at [2]).

78    In relation to the third point, Allsop CJ said by way of preliminary comment (at [3]):

... where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

(Emphasis added.)

79    The Chief Justice also referred (at [38]) to the primary judge’s discussion of the authorities, including Carrascalao, “as to the need for the decision-maker to engage in an active intellectual process directed at the relevant circumstances and the nature of such an assessment”. The primary judge recognised “that statements of a formulaic kind or sweeping statements that all representations and documents have been considered will not shield from scrutiny whether in substance they have” (at [38]).

80    In the context of the power to revoke a cancellation decision under s 501CA(4) of the Act (where the Minister is required to invite representations about the revocation from the affected person), the following was said in Plaintiff M1 at [24]–[26] about the approach to be taken by the decision-maker when considering such representations (Kiefel CJ, Keane, Gordon and Steward JJ) (footnotes omitted):

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend [(1986) 162 CLR 24 at 40; see also 30, 71], “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

81    It was also said by a Full Court of this Court in Tikomaimaleya at [41] that:

… neither Hands nor Plaintiff M1 establishes any legal principle that the greater the adverse consequences of a decision, the greater level of engagement there must be by the decision-maker with the representations of the person affected. Neither case suggests that there is some fixed standard or measure of the degree of effort and attention the decision-maker must apply to the representations or any aspect of them.

Hands is distinguishable

82    Having considered what was said in Hands and, subsequently, in other authorities, I make five observations about the applicant’s submissions before considering the alleged probative material error.

83    First, Hands is distinguishable. The factual findings made by the Assistant Minister in Hands were that the appellant “may experience some emotional and psychological hardship” and “short term hardship”, but “over time ... would be capable of settling in New Zealand without undue difficulty”. However, the material before the Assistant Minister in Hands demonstrated substantial ties with Australia, including membership of, and contribution to, his Aboriginal community. There were ties to his de facto partner and step-grandchildren, and to his four children by his first partner. The materials before the Assistant Minister revealed the devastating human consequences of Mr Hands’s removal. Those materials provided no basis for the findings made by the Assistant Minister; indeed, the materials were contrary to such findings.

84    Nor could the findings of the Assistant Minister in Hands be supported by statements about the comparability of New Zealand society and its available services: as Allsop CJ said, “[t]he existence of the same language and similar culture in New Zealand and the standard of healthcare and social services there are matters hardly to the point” (at [44]). Thus, none of the evidence before the Assistant Minister relevantly supported the particular factual findings made.

85    Secondly, the impugned findings in Hands related to the hardships to be suffered by the appellant in that case. The relevant findings of the Minister in this proceeding are that the applicant’s access to health and welfare services would mitigate the impediments created by his brain injury and that those impediments would not be insurmountable. The Minister’s reasons differentiated between, on the one hand, the impediments, barriers or obstacles the applicant would face in establishing himself and maintaining basic living standards and, on the other hand, the hardships that the applicant would suffer. The applicant’s access to health and welfare services is a matter relevant to the mitigation of the impediments and their surmountability. In Hands, the standard of healthcare and social services was “hardly to the point”; in this case, it is very much to the point.

86    Thirdly, as Allsop CJ noted in Hands, the use of mechanical formulaic expressions may hide a lack of necessary reflection. That was certainly the case in Hands, where general statements about healthcare and social services had nothing to do with the impugned findings of fact. However, such a general statement might well be relevant in some circumstances, including to the findings in this case.

87    Fourthly, for those reasons, it could not be said that this was an “extreme and rare” case of the kind referred to by the High Court in Viane at [21] with reference to the decision in Hands.

88    Fifthly, at least where reasonableness is the ground of review, there is a risk of sliding into merits review if the requisite level of engagement by the decision-maker is calibrated to the degree of adverse consequences that are created by a decision. As the Full Court said in Tikomaimaleya, neither Hands nor Plaintiff M1 supports that approach. It would import too much into the reasonableness ground of review, and unduly elevate its intensity, to calibrate the requisite level of engagement in that way. That is not to deny that, in a statutory context where invitations to provide representations to the decision-maker are required, the requisite level of engagement with those representations, within the bounds of rationality and reasonableness, will vary in the way described by their Honours in Plaintiff M1.

The alleged probative material error is not made out

89    Turning to the alleged probative material error in the present matter, it is necessary to consider the Minister’s reasoning process. The Minister in paragraph [74] made the following observations:

    The applicant “would need to establish a new network of contacts for medical support, if needed” and “may face hardship being separated from his family and trying to establish himself in a new environment”.

    However, the applicant “does have some work experience which could assist him in finding work” and “also has some family in New Zealand including his father and several uncles and aunts who could provide some degree of support to assist him in establishing himself”.

90    The applicant does not challenge the inferences drawn by the Minister that his work experience could assist him to find work and that his relatives could provide some degree of support. The highest it was put by counsel for the applicant in further written submissions (see later in these reasons at [116]) was that “the presence of aunts and uncles in New Zealand and the work experience … do not cure the unwarranted nature of the Minister’s assumption”.

91    In relation to the possible assistance of his relatives, including his father, there was limited information before the Minister to support that inference. The applicant had merely stated in a questionnaire that his father and three uncles and aunts resided in New Zealand, and had elsewhere stated in a statutory declaration that his father “is old and sick”. There was no positive statement before the Minister that those relatives would be prepared to offer assistance. However, the questionnaire was a means by which information relevant to the visa cancellation was elicited, and I accept that it was open to the Minister to draw that inference.

92    At paragraph [75] of his reasons, the Minister acknowledged the following findings of the Tribunal (emphasis omitted):

    The applicant “suffered from a significant traumatic brain injury”; “had been treated for depression and anxiety, and had a drug and alcohol issue in the past”.

    While the applicant “could continue to receive commensurate treatment in New Zealand, [the Tribunal] was of the view that the brain injury presented a ‘significant impediment’ in [the applicant’s] ability to settle in New Zealand and navigate a different environment”.

    The applicant “would have access to the same social, medical and economic support available to other citizens of New Zealand” but “that access must be considered in the context of his brain injury which would impact his ability to understand, engage and navigate new procedures”.

    The applicant “would experience ‘significant mental, emotional, practical and financial hardships, which would be difficult to overcome given his significant brain injury’”.

93    The Minister’s findings appear at paragraph [76] of his reasons (set out earlier at [17]).

94    In light of these passages in the Minister’s reasons, I do not accept the applicant’s arguments on the alleged probative material error for the following reasons.

95    First, the fact that the Minister’s reasoning and findings diverged from those of the Tribunal is not itself evidence of legal unreasonableness: Tereva at [25] per Mortimer J; [37] per Bromwich J; [156] per Thomas J.

96    Secondly, I do not accept the argument that the human impact of removal was not given appropriate consideration. Earlier in his reasons, the Minister considered the best interests of minor children and the applicant’s ties to Australia, and concluded that, on balance, the strength, nature and duration of the applicant’s ties weighed against cancellation. On the other hand, the Minister recognised that the applicant was unlikely to face substantial linguistic or cultural barriers and, although he may face some obstacles because he had not lived in New Zealand since childhood, the Minister considered that these obstacles were not insurmountable. There was no challenge to these findings.

97    In paragraph [74], the Minister acknowledged that the applicant would need to establish a new network of medical support and may face hardship being separated from his family and trying to establish himself in a new environment. He accepted that the applicant would face impediments in establishing himself and maintaining basic living standards, and that those impediments would likely be exacerbated by his disability. The Minister was conscious of the Tribunal’s reasoning that those hardships “would be difficult to overcome”. Yet, the Minister nonetheless made the impugned findings. When read fairly, and as a whole, it cannot be said that the Minister failed to give active consideration to, or to engage with, the impediments facing the applicant and the hardships he would suffer because of the decision: see Vargas at [54].

98    Thirdly, at the heart of the applicant’s contentions is the proposition that there was a gap in the evidential basis for the Minister’s two impugned findings, namely that access to comparable health and welfare services would mitigate the impediments and that the impediments were not insurmountable. In my view, that is not the case.

99    In relation to evidence of comparable health and welfare services in New Zealand, I consider that the Minister was entitled to rely on his or his Department’s knowledge. In Viane, Keane, Gordon, Edelman, Steward and Gleeson JJ said the following in relation to an exercise of discretion under s 501CA(4) of the Act (at [18]‍–‍[19]):

(a)    the Minister can rely upon his “personal or specialised knowledge, or commonly accepted knowledge” of the comparability of health and welfare services in New Zealand;

(b)    in the absence of the Minister identifying the evidence or other material in support of the findings, “it can be assumed that the findings proceeded from the Minister’s personal or specialised knowledge or were matters commonly known”;

(c)    “the Minister is free to adopt the accumulated knowledge of the Department of Immigration …”; and

(d)    “the Minister may adopt as the Minister’s own written reasons a draft prepared by a departmental officer”.

100    I agree with the Minister’s submissions that those observations are equally applicable to an exercise of discretion under s 501BA(2) of the Act. Once the Minister is satisfied of the statutory conditions:

    the discretion is broad: see Viane at [12];

    there are no mandatory considerations to take into account: see Viane at [13];

    there is nothing that requires actual findings of fact: see Viane at [14];

    there is nothing in the statutory language that prohibits the Minister from using personal or specialised knowledge: see Viane at [18]; and

    there are no “limitations on the sources of information that may be considered by the Minister”: Viane at [18].

101    The combined effect of the propositions from Viane set out earlier at [99] is that, in drawing conclusions about the availability of comparable health and welfare services in New Zealand, the Minister was able to rely upon his personal or specialised knowledge about those facts, or to adopt the accumulated knowledge of his Department. Unlike the circumstances in Hands, that is material in this case that is probative of the factual finding that the applicant’s impediments will be mitigated. That was a reasonable inference for the Minister to draw.

102    I interpolate that, in light of the decision in Viane, the applicant was right to abandon the challenge to the Minister’s finding in paragraph [74] relating to the applicant’s access to comparable health services in New Zealand — see earlier in these reasons at [22] and [46]. Given what the High Court said in Viane, such a challenge would have no prospect of success.

103    Furthermore, when the Minister’s reasons are read fairly and as a whole, it was not just the comparable health and welfare services that contributed to the finding that the impediments would not be insurmountable. The finding was also supported by evidence of the applicant’s work experience and possibility of family assistance: see Viane at [20]. Given that evidential foundation, the inference drawn by the Minister that the impediments would not be insurmountable falls within a range of “possible, acceptable outcomes” (Li at [105] per Gageler J) and within the boundaries of the Minister’s decisional freedom (Eden at [62] per Allsop CJ, Griffiths and Wigney JJ). As Gummow J said in Eshetu, “[t]hat other decision-makers may have reached a different view, and have done so reasonably, is not to the point” (at [147]).

104    In reaching these conclusions, I am mindful of the decision of a Full Court of the Federal Court in Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 559; [2020] FCAFC 165. In that case, the appellant had challenged a decision by the Minister not to revoke a visa cancellation under s 501CA(4) of the Act. The substance of the complaint was that the Minister did not give adequate consideration to the appellant’s representation regarding the mental health difficulties he would face if removed from Australia. The Minister had made two relevant findings: first, that the appellant in that case would face “significant hardship” if returned to the United Kingdom (taking into account the appellant’s representation as to a feared decline in his mental health and feared homelessness); and, secondly, that the impact of those impediments would “lessen over time” because the appellant would have access to welfare and support services in the United Kingdom. The primary judge rejected the appellant’s contention that the Minister failed to give “proper, genuine and realistic consideration” to the appellant’s representation.

105    A majority of the Full Court (McKerracher and White JJ, with Stewart J dissenting) considered that there was no error in the Minister’s decision. Distinguishing the circumstances in Swannick from those in Hands, McKerracher J said at [20]-[22] (emphasis added):

Critical evidence was led in Hands regarding the appellant’s acceptance into an Aboriginal community, his cultural acceptance as a Koori man and his long-term family connections with five local Aboriginal families: see Hands (at [15]). Such evidence extended to detailing the extent of the impact on Mr Hands and his community if he were removed. In light of this evidence, Allsop CJ, with whom Markovic and Steward JJ agreed, held (at [44]) that there was no rational or probative basis for the finding that any emotional or psychological hardship would be short-term. 

That is not the expression used in this case. In this instance, the Minister has accepted that removal would occasion “significant hardship”. He does not suggest that the significant hardship will disappear, but expresses the view that it will “lessen over time”. While this is, in many cases, a reasonable inference to draw when a person who raises concerns about their health is to be returned to a country with welfare and health services comparable to Australia’s, in this case Mr Swannick raised a specific concern about the impact of losing the support of his family. This concern is referred to by the Minister … where he accepted “that all of [Mr Swannick’s] … family ties are in Australia” and, considered the submission that “… he needs to remain in Australia where he can receive the love and support of his family”. It is doubtful whether there was adequate evidence either way to support the additional rider that the significant hardship would lessen over time. But a practical reading of the reasons indicates the Minister’s belief that the available services would lessen the significant hardship (including the impact on him of loss of immediate access to family). That assessment might be questioned, but it cannot be said, in my view, that there was no evidence on which to base that assessment. 

… In my view, the Minister’s assessment of “significant hardship” was both reasonably open on the evidence and displayed sufficient consideration of Mr Swannick’s submissions when read in the context of the reasons as a whole, such that it cannot be said that a potentially erroneous finding as to a “lessening over time” was a necessary precondition to the exercise of jurisdiction or a critical step in the ultimate conclusion. Importantly, unlike Hands, there was no suggestion in this case that the significant hardship would only be short-term. There was no suggestion the problems would go away completely.

106    Justice White agreed with those reasons at [25]. It is evident that, in the circumstances, the majority in Swannick would have been troubled by a finding that the hardship would disappear.

107    I do not consider that Swannick affects my conclusions. There are important differences between the Minister’s reasons in Swannick and in this case. In Swannick, the Minister found that (see Swannick at [56], emphasis added):

Mr SWANNICK would experience significant hardship in returning to the United Kingdom. [The Minister] found that the impact of these impediments would lessen over time as Mr SWANNICK would have access to welfare and support services similar to the other citizens of the United Kingdom in his position.

108    The concerns expressed in McKerracher J’s judgment in Swannick were thus directed to findings about the hardship to be suffered by the appellant in that case and the impact of the impediments he would face. The contrast to Hands in his Honour’s reasons was made in terms of the findings about hardship in the respective cases. By contrast, in this case, the focus of the Minister’s findings is on the impediments creating the hardship. It is the impediments, not the hardship, which is found by the Minister not to be insurmountable. As I have indicated earlier in these reasons, on a fair reading of the reasons as a whole, that finding was based on the existence of comparable health and welfare services in New Zealand, the evidence of the applicant’s work experience and the possibility of family assistance. It is not a finding about the acknowledged hardship that the applicant will suffer. As McKerracher J recognised, “[t]hese assessments differ in material ways when read within the factual context of each case” (at [19]).

109    I have reached my conclusions given the statements of principle in the existing authorities. In my view, the impugned findings did not lack “an evident and intelligible justification”: Li at [76] per Hayne, Kiefel, and Bell JJ. It could not be said that the outcome or reasoning “so departed from the underlying premises of the exercise of public power that it resulted in the power entirely miscarrying, in effect being an abuse of power”: Lieu at [81] per Mortimer CJ. That is particularly the case given the stringency of the ground of review. It is not for this Court to substitute its own view of the merits.

110    What really lies at the heart of the applicant’s contentions on the alleged probative material error is that the efficacy of the health and welfare services in New Zealand would be undermined when one considers the applicant’s experience in Australia. That is what the applicant claims produces the alleged gap in evidential material and the unwarranted assumption of efficacy made by the Minister. That, essentially, is the alleged unwarranted assumption error to which I now turn.

111    For the reasons that follow, that error has not been established. Consequently, it does not affect my conclusion that the alleged probative material error has not been made out.

The unwarranted assumption error

112    Findings that are “underpinned by unexpressed and unwarranted assumptions not based in any evidence” can, in appropriate circumstances, give rise to legal unreasonableness: DAO16 at [45] per Kenny, Kerr, and Perry JJ. The question is whether that has occurred in this case.

The applicant’s affidavit

113    Before considering the submission that the Minister made an unwarranted assumption error, it is necessary to deal with the affidavit deposed by the applicant on 13 February 2025 and filed on 14 February 2025.

114    The salient parts of the affidavit were as follows:

4.    On 16 February 2024 I was released from Villawood Detention Centre into the community without any support or help.

5.    After I was released, I called my sister … and her husband …, because I planned to stay with them, but they told me I couldn’t stay with them.

6.    I attended Department of Housing in Parramatta, and they gave me 3 days accommodation in a hotel somewhere near Parramatta. After that I was then sleeping rough on the streets of Parramatta near the Metro line construction site. I also managed to get some nights in homeless shelters, but I can’t remember where and when.

115    At the commencement of the hearing, the Minister objected to its admission on the ground of relevance. I allowed the parties an opportunity to provide written submissions on the question of whether the evidence should be admitted.

116    In further written submissions, the applicant contended that, in showing that the applicant was homeless, the affidavit is relevant to:

(1)    the submission that the applicant could not establish himself and maintain basic living standards in Australia;

(2)    the question of whether there was a probative basis for the Minister’s finding that, with comparable services in New Zealand, the applicant could establish himself and maintain basic living standards;

(3)    the submission that the outcome from health and welfare services in New Zealand needed to be better than the outcome in Australia; and

(4)    the submission that the Minister’s consideration of the applicant’s circumstances falls short of “the whole consideration of the human consequences involved”: Hands at [3].

117    As already foreshadowed, the applicant made the additional submission that, despite his work experience and the presence of family in Australia, he was unable to establish himself and maintain basic living standards and, consequently, those facts “do not cure the unwarranted nature of the Minister’s assumption”.

118    The applicant recognised that this additional submission “was not made at the hearing and may go outside the grant of leave”, but sought leave to make it “with the consent” of the Minister.

119    In written submissions, the Minister took no position on whether leave should be granted to the applicant to make the additional submission, but sought leave to rely on submissions in response. The additional submission is premised on the evidence of the applicant’s homelessness. Therefore, it can only be accepted if the affidavit evidence is admitted. For the reasons that follow, I have reached the conclusion that the affidavit should not be admitted and, consequently, the additional submission should not be accepted.

Admission of the affidavit

120    Turning to the question of whether the evidence should be admitted, s 55 of the Evidence Act 1995 (Cth) provides that “[t]he evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.

121    As the Minister contended, “[o]rdinarily there would be no reason, in a case involving judicial review, for any evidence to be placed before the Court, apart from evidence of what was before the decision-maker at the time of the relevant decision”; such new material will, ordinarily, “not be admissible in proceedings for judicial review”: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 at [442] and [454] per Weinberg J; see also Waterford v Commonwealth (1987) 163 CLR 54 at 77‍–‍78 per Brennan J; AIX20 v Minister for Home Affairs [2020] FCA 1640 at [14] per O’Callaghan J; CJS17 v Minister for Immigration and Border Protection [2019] FCA 1870 at [17]‍–‍[18] per Snaden J.

122    However, despite the ordinary position, there can be circumstances where new evidence will be admissible on an application for judicial review. Whether that is so “will depend on the ground of review and the circumstances of the case” (McCormack v Commissioner of Taxation (Cth) (2001) 114 FCR 574; [2001] FCA 1900 at [38] per Sackville J; see also Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (2022) 406 ALR 41; [2022] FCA 1121 at [285] per Bromberg J; Chandra v Webber (2010) 187 FCR 31; [2010] FCA 705 at [40]‍–‍[41] per Bromberg J; Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539‍–‍540 per Lockhart J; Attorney-General (NT) v Hand (1988) 16 ALD 318 at 319‍–‍320 per Wilcox J).

123    The Minister offered instances of where that might be the case:

    Where the Minister has a duty to obtain other information: see AIX20 at [14];

    Where the Minister’s jurisdiction is based on the existence of an actual state of affairs: see BHP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1211 at [88]‍–‍[90] per Kerr J; see also Attorney‍-‍General (NT) at 539‍–‍540 per Lockhart J; Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 224 per Black CJ;

    Where it is alleged that the Minister’s conduct is vitiated by fraud: see BHP17 at [91] per Kerr J;

    Where expert evidence is adduced to show that the decision that was made was reasonable: see Mackenzie v Head, Transport for Victoria [2021] VSCA 100 at [171] per Tate, Kyrou, and Kennedy JJA; Environment Council of Central Queensland Inc v Minister for the Environment and Water [2023] FCA 1117 at [22] per McElwaine J; Jam Land Pty Ltd v Minister for the Environment [2022] FCA 1058 at [40] per Lee J; AQK17 v Minister for Immigration and Border Protection [2019] FCA 1176 at [26] per Abraham J; see also Australian Retailers at [457]‍–‍[460] per Weinberg J; and

    Where the decision is vitiated by a denial of procedural fairness: see McCormack at [38] per Sackville J; Chandra at [41] per Bromberg J.

124    It has also been observed that “material that was not before the decision-maker may be relevant to a ground of unreasonableness where the decision-maker has not obtained material that was obviously centrally relevant to the decision and was readily available”: Mentink v Minister for Justice [2016] FCA 432 at [68] per Rangiah J, citing Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169‍–‍170 per Wilcox J. Unreasonableness in that context is constituted by the unreasonable failure by the decision-maker to ascertain relevant facts which the decision-maker knew to be readily available. The circumstances under which a decision will be invalid on this basis are likely to be “strictly limited”: Prasad at 169‍–‍170 per Wilcox J.

125    It may be that the instances where new evidence can be adduced “are limited and exceptional”: BHP17 at [91] per Kerr J. Regardless, it must be established that the new evidence is relevant to the claim for jurisdictional error in the circumstances of a particular case.

126    For the following reasons, I accept the Minister’s submissions that the affidavit evidence is not admissible in the circumstances in this case.

127    First, as has been noted, the Minister does not owe a duty to provide natural justice before making a decision under s 501BA(2). Thus, there was no error in failing to seek further evidence and, it follows, no error in failing to have regard to any such evidence: AIX20 at [14] per O’Callaghan J.

128    Secondly, the Minister may make a decision under s 501BA(2) on the basis of information “which is not up to date” or on the basis of “a less than complete picture”. So much was held by a Full Court in EUF20 at [37] and [64] (per Abraham, O’Sullivan, and Raper JJ) in relation to a decision under s 501(3) of the Act, and applied by Raper J to a decision under s 501BA(2) in Palmer [2023] at [109]. That s 501BA(2) should be understood in that way also appeared to be assumed by Feutrill J on appeal in Palmer [2024] at [193]. Accordingly, the Minister’s reliance on “stale” material does not give rise to legal unreasonableness: EUF20 at [64]. In short, it is within jurisdiction for the Minister to have made the decision based on the information before him.

129    Thirdly, as was noted earlier in these reasons at [61], it is not accurate to say, as the applicant contended, that the requisite satisfaction to be reached by the Minister was whether the applicant had capacity to establish himself and maintain basic living standards in New Zealand. That was not a jurisdictional fact conditioning the exercise of power. Having been satisfied of the conditions in s 501BA(2)(a) and (b), the Minister was exercising a discretion in s 501BA(2) when he is said to have committed the alleged errors. In exercising that discretion, the Minister does not need to take any particular matter into account, consider any material that was not before him at the time of making the decision, or invite representations from the applicant.

130    Given these features of the statutory context, where the Minister can make a decision within jurisdiction on the basis of out-of-date material that was before the Tribunal, and without any obligation to seek additional information from the applicant, any ground of legal unreasonableness can only arise if a relevant error can be found in the reasoning process and conclusions founded on the material before the Minister: see, by analogy, Singh at [47] per Allsop CJ, Robertson and Mortimer JJ. In those circumstances, any additional fact that was not before the Minister cannot add to the factual foundation from which unreasonableness of the Minister’s decision-making may be found and, accordingly, evidence of the additional fact lacks probative value.

131    I do not accept the applicant’s further written submissions, set out earlier in these reasons at [116], as to the relevance of the affidavit evidence. The contention that the evidence is relevant to submissions (1)–(3) on a judicial review application for unreasonableness might be understood if the comparability of services in New Zealand were a statutory condition for the exercise of the Minister’s discretion. However, as has been explained, that is not the case. The applicant’s further written submissions do not otherwise explain why those submissions would require additional evidence on a legal unreasonableness ground of review. Submission (4) goes beyond the alleged unwarranted assumption error that was the subject of leave for further submissions. In any event, it should not be accepted as a basis to admit the affidavit. First, for the reasons set out earlier in these reasons at [66]‍–‍[88], it assumes too much about the decision in Hands. Secondly, even if a failure to consider the whole human consequences of a decision is sufficient to constitute an independent ground for jurisdictional error, it is not explained in the applicant’s further written submissions why that claimed jurisdictional flaw in the Minister’s reasons should be assessed by reference to evidence that was not before him. The common problem across submissions (1)–(4) is that there is no persuasive explanation in the applicant’s further written submissions as to why the Court should depart from the ordinary position that material not before the decision-maker at the time of the decision is not admissible in proceedings for judicial review.

132    Consequently, the evidence in the applicant’s affidavit is not relevant and should not be admitted.

133    It follows that the evidence in the affidavit is not available to provide a basis for the contention that the Minister made the alleged unwarranted assumption error. Without that evidence, what remains is the statement by the applicant’s sister that the applicant “has fallen through the cracks in terms of accessing ongoing medical treatment for his brain injury” and the statement by the applicant that, because of his brain injury, he “would face great obstacles in establishing himself in New Zealand and maintaining a basic living standard”. However, these statements do not rise to the level of precluding the Minister from reaching the view that the applicant’s impediments were not insurmountable.

134    Accordingly, the Minister was entitled to assume the comparability and efficacy of the health and welfare services in New Zealand as a step in reaching the conclusion that the applicant’s impediments were not insurmountable. There was no unwarranted assumption and no gap in the factual foundation for reaching such a conclusion.

135    For completeness, I will address three cases referred to by the applicant in his further written submissions.

136    First, the applicant sought to rely on the statement in Craig v South Australia (1995) 184 CLR 163, quoted in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [17], that “[w]here the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it” (emphasis added). As indicated earlier in these reasons, in appropriate cases evidence can be adduced to a court on judicial review. However, as the emphasised words suggest, the ability of the review court to receive additional material does not obviate the need for that material to be relevant to the issue before the court.

137    Secondly, the applicant also referred to the following statement in Viane at [8]:

It should be noted that the respondent has never suggested that the Minister’s observations were in fact incorrect. Even though it was open to the respondent to show this, assuming each observation in fact to be mistaken, he has chosen not to do so.

The applicant’s submission that this statement indicated that the Court “was open to receiving evidence from the respondent, showing errors of fact by the Minister” should not be accepted. I do not consider that to be an available reading of the passage. There is no reference in that passage, or in the surrounding context in the judgment, to fresh or new evidence on review. I agree with the Minister that the correct reading of the statement is that “it was open to the respondent to show, by reference to the material before the Minister at the time he made his decision, that the finding was wrong” (original emphasis).

138    Thirdly, it may be accepted, as the applicant contends, that “[u]nwarranted assumptions” made by a decision-maker can give rise to jurisdictional error, and also that jurisdictional error can arise from findings or reasoning “along the way” to reaching a conclusion: see BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94 at [34] and [36] per Perram, Perry, and O’Callaghan JJ, citing DAO16 at [45] per Kenny, Kerr, and Perry JJ; and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [132] per Crennan and Bell JJ. However, the assumption must be unwarranted. I have concluded that the Minister did not make an unwarranted assumption.

Unwarranted assumption in any event?

139    Although it is not necessary to decide the point, I should indicate that, even if the evidence were admitted and assumed to be constructively before the Minister, I have serious doubts about the applicant’s submissions in favour of the alleged unwarranted assumption error. The evidence is to the effect that, for a period after his release, the applicant was homeless. An inference can readily be drawn from that evidence that the applicant would likely face impediments in establishing himself and maintaining basic living standards. However, even if the affidavit evidence were constructively before the Minister, I consider that more would have to be established in order to displace the possibility of a reasonable inference that the impediments were not insurmountable. One of the obstacles to be faced was that there was evidence before the Minister from the applicant that, prior to his detention, his medical condition was being managed in Australia.

Irrationality and illogicality

140    In his further written submissions, the applicant quoted from BZD17 (at [36]) which cites the judgment of Crennan and Bell JJ in SZMDS in support of the proposition that “findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error” (original emphasis). The applicant then contended that (emphasis added):

The comparison of Australia and New Zealand is the living centre of the Minister’s reasoning. The Minister’s comparison is illogical and lacks a probative basis where it assumes a comparable set of conditions in New Zealand could deliver a result where the Applicant establishes himself and maintains basic living conditions. The lack of a probative basis is evident in the Affidavit.

141    It has been accepted in SZMDS that illogicality can give rise to jurisdictional error. Whether there has been “illogicality” in the relevant sense is not a conclusion that should be lightly reached: SZMDS at [40] per Gummow A‍-‍CJ and Kiefel J; [122] and [130] per Crennan and Bell JJ; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [44]‍–‍[47] per Griffiths, Perry, and Bromwich JJ. “Not every lapse in logic” will create legal error: SZMDS at [130] per Crennan and Bell JJ; ARG15 at [44]. As Crennan and Bell JJ said in SZMDS at [131] and [135]:

... the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

...

[A] decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

142    The applicant did not allege illogicality or irrationality as a separate ground of review in the review application. Accordingly, I have taken the argument based on illogicality to be a variation on the formulation of the unreasonableness ground of review. As such, it fails for the same reasons given for the failure of the unreasonableness ground of review.

143    In any event, even if the evidence were constructively before the Minister, for the reasons given earlier at [139], I have serious doubts that the Minister’s reasoning and conclusions could be characterised as illogical or irrational in the relevant sense. Illogicality or irrationality necessitates that only one conclusion was open on the evidence and the decision maker did not come to that conclusion, or the decision was simply not open on the evidence, or there was no logical connection between the evidence and the inferences or conclusions drawn. In circumstances where it was open on the evidence for the Minister to make the findings that he made, it is not for this Court to substitute its own factual inferences and decision for those of the Minister.

Conclusion

144    In conclusion, neither the alleged probative material error nor the alleged unwarranted assumption error provides a basis for the conclusion that the Minister’s decision was legally unreasonable. Consequently, jurisdictional error has not been established and the challenge to the validity of the Minister’s decision must fail.

145    While the application for an extension of time is allowed, the review application is dismissed with costs to be agreed or assessed.

Associate:

Dated:    20 May 2025