Consideration
16 Both the grounds of appeal are vague. The first claims that the primary judge erred but gives no particulars. The second ground claims error on the part of the primary judge in failing to hold that the Minister's decision was (legally) unreasonable.
17 As to the first ground, assuming in favour of the appellant that the ground is intended to incorporate the two grounds before the primary judge which centred on what the Minister had said as to the appellant's access to substance abuse services in New Zealand, we see no error on the part of the primary judge.
18 We agree with the primary judge who said, at [20], that the threshold difficulty with the appellant's argument is that it is apparent that the Minister did not regard the availability of substance abuse services in New Zealand as a critical fact in the exercise of his discretion. The observation in [72] of the Minister's decision was that substance abuse services "may be" available to Mr Anaki. The Minister did not make a factual finding that Mr Anaki would have access to substance abuse services upon his return to New Zealand, rather he found that he may have access to such services.
19 As the primary judge said at [22]-[23]:
22 The difficulty [with the submission that the "no evidence" ground applied] is that the reasoning of the Minister, as noted above, does not reflect a view that the services will be available to Mr Anaki, but only that they "may be". The Minister did not make the requirement of availability a precondition to the exercise of his discretion. As I have noted, by observing that the services "might" be available, the Minister also contemplated that they might not be. Accordingly, the Minister did not himself make the existence of such services a prerequisite.
23 The consequence of this analysis is that, contrary to Mr Anaki's submission, a lack of evidence about the type of services available in New Zealand would not amount to jurisdictional error; [Minister for Immigration and Multicultural and Indigenous Affairs v] SGLB [[2004] HCA 32; 207 ALR 12] at [40].
20 We also see no error in the reasoning of the primary judge at [28] rejecting the then second ground, which was a further way of putting the "no evidence" ground. The primary judge said:
… this submission relies on the same incorrect premise as ground 1, namely that the Minister was required to consider the availability of substance abuse services to Mr Anaki. Again, the authorities do not support that proposition; see Madafferi [v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; 118 FCR 326] and Gbojueh [v Minister for Immigration and Citizenship [2012] FCA 288; 202 FCR 417]. Nor did the reasoning of the Minister make it a requirement that he do so. I am not satisfied that, in the circumstances, the Minister fell into jurisdictional error on the basis asserted.
21 No challenge was made to the correctness of the authorities relied on by the primary judge.
22 We do not regard it as necessary in this appeal to analyse the "no evidence" ground in judicial review for jurisdictional error. In our opinion, whether the fact is required to be a precondition to the exercise of the power (jurisdictional in that sense) or a critical step in the ultimate conclusion, neither of those descriptions or characterisations apply to the findings in [72] of the Minister's reasons. On that basis we distinguish Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162: see the judgment in Schmidt at [27] and [32].
23 As to the second ground in the notice of appeal before the Full Court, this is a different way of expressing the ground which was abandoned at the hearing before the primary judge, when the appellant was represented by counsel. That ground was: "The Respondent's decision was illogical, irrational and/or unreasonable because he did not balance the Australian community's tolerance of the Applicant's criminal conduct against the national interest." The appellant would require leave to depart from the manner in which his case was conducted at first instance. No grounds appear on which such leave should be granted. The claim that the Minister's decision was affected by unreasonableness has no substance either at all or once regard is had to the relevant principles, now well-established, in Stretton and Eden.