APQ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The statutory framework 4 Section 36 of the Act sets out the criteria that an applicant must satisfy in order to be granted a protection visa. It relevantly provides as follows: 36 Protection visas - criteria provided for by this Act (1A) An applicant for a protection visa must satisfy: (a) both of the criteria in subsections (1B) and (1C); and (b) at least one of the criteria in subsection (2). … (1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds: … (b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. 5 It was not in contest that the applicant had been convicted by a final judgment of a "particularly serious crime". 6 Section 501 of the Act sets out the circumstances in which the Minister may (or must, as the case may be) refuse or cancel a visa on character grounds. It provides, relevantly: 501 Refusal or cancellation of visa on character grounds (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. … (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7))… … (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more… 7 Section 476A of the Act bestows upon the Federal Court original jurisdiction in relation to a migration decision if, relevantly, the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501 of the Act. The present application is brought pursuant to that section.

The Visa Application 8 By his Visa Application, the applicant submitted that he had a well-founded fear that, if he returned to his native Afghanistan, he would be subjected to relevant persecution on account of his Hazara ethnicity, his religious beliefs (he is a Shia Muslim), the fact that he has a mental illness and the fact that he has no family there. 9 Of particular significance to his Visa Application were the applicant's submissions concerning his mental illness. The applicant has been diagnosed with Bipolar Affective Disorder (or possibly schizoaffective disorder, if that is not the same thing). In submissions advanced before the Minister's delegate and, later, the Tribunal, the applicant relied upon country information that tended to show that sufferers of mental illness in Afghanistan are particularly vulnerable to mistreatment on the grounds that their conditions are regarded by Afghani society as divine punishment for sins committed. That mistreatment was said to assume various forms, including detention and sedation in "facilities and shrines". Additionally, the applicant highlighted the poor quality of mental health treatment in Afghanistan, the harsh conditions that prevail in its prison system, the inadequacies and corruption by which its judicial system is plagued, the prevalence of arbitrary arrest and detention processes, and the "generally terrible economic and security situation throughout the country". 10 The applicant also sought to address the circumstances in which his previous visa had come to be cancelled. That cancellation arose in consequence of a spate of offences that he committed between October 2012 and January 2014 (when he was still a child). Those offences involved larceny, threats and intimidation, assault, and armed robbery. By his written submissions in this court, the applicant described his offending as follows (references omitted): 4. The offences occurred in two clusters after the applicant had formed a friendship with three older males who, the sentencing judge said, "had an unhealthy influence upon him". The first cluster of seven offences took place over a two week period in October and November 2012 when the applicant was 16 years old. On five separate occasions the applicant - acting on his own but at the behest of the older males - took mobile telephones from people he accosted in trains, railway stations, and in the street and in parks, sometimes with a knife. The applicant then sold the mobile telephones to the males for between $10 and $20 per phone, and the males onsold them. The second cluster of three offences took place on 25 October 2013 and on 7 and 9 January 2014, when he was 17 years old. This time the applicant was with the older males and on these three occasions they accosted people, sometimes with violence and weapons, and took mobile telephones and wallets. The applicant pleaded guilty to all offences, and on 16 April 2015 he was sentenced in the District Court of New South Wales to an aggregate period of six and a half years imprisonment, with a non-parole period of three years. 5. The sentencing judge accepted that the first seven offences when the applicant was on his own could have been the subject of "some form of uncontrolled manic episode", however his Honour was not satisfied that there was a direct causal connection between his psychiatric condition and the totality of his criminal conduct. 11 In support of his Visa Application, the applicant relied upon expert reports prepared by Mr David Green and Dr Rafe Pulley. Before the court, the applicant described those materials as (references omitted): 13. …psychological and psychiatric evidence, in the form of reports by Mr David Green dated 8 April 2015 which had been prepared for the District Court, and Dr Rafe Pulley dated 15 October 2018. Mr Green suspected that the applicant's behaviour was attributable to "some form of uncontrolled manic episode whilst offending", and that he was taken advantage of [by] his co-offenders for their own ends. Mr Green regarded the applicant as being at "Moderate" risk of re-offending. 14. Dr Pulley diagnosed the applicant with "severe mental illness, specifically schizoaffective disorder", which caused "chronic fluctuating psychotic symptoms including auditory hallucinations that are commands, derogatory and persecutory nature, thought disorder, persecutory delusions and grandiose delusions". Dr Pulley noted that he was not a habitual offender, and that "severe impairment of his judgement occurring directly as a result of his mental illness was a key factor in his offending behaviour". Dr Pulley was particularly critical of the applicant's treatment in prison and in immigration detention, suggesting that the applicant's "treatment has been seriously disrupted by health professions repeatedly misinterpreting symptoms of his mental illness as manipulative behaviour". Dr Pulley was of the opinion that, "with adequate support and treatment of his mental illness, your client is unlikely to reoffend. It is likely that your client will cooperate with treatment". 15. Dr Pulley was also of the opinion that, if the applicant was sent back to Afghanistan, "there is almost no possibility that he would receive adequate psychiatric care. Your client's psychiatric illness is such that it would be almost inevitable that he would enter a state of manic psychosis at some point. Given the past content of his delusions…it is highly likely, seemingly inevitable that his behaviour would become sufficiently disturbed to place his life in grave danger. Your client's prospects of remaining alive in Afghanistan would seem to be quite poor". 12 The Minister's delegate was not persuaded that the applicant could satisfy the requirements of s 36(1C) of the Act: that is, that he is not "…a danger to the Australian community". It was on that basis that the delegate refused the Visa Application. 13 It was that conclusion that the Tribunal set aside. After having regard to (amongst other things) the evidence of Dr Pulley, it concluded that the applicant "…was not a person whom [it] considers, on reasonable grounds….is a danger to the Australian community." 14 The Tribunal remitted the Visa Application back to the Minister to determine in light of that conclusion (which is to say, to determine whether the applicant could satisfy the other criteria upon which his Visa Application turned). It was in that context that the Minister resolved to send the Refusal Intention Notice, by which the applicant was invited to "…provide reasons why [his] application should not be refused even [assuming that he did] not pass the character test". The applicant accepted that invitation by providing his Refusal Submissions. 15 Those Refusal Submissions assumed the form of a completed "Personal Circumstances Form" (a blank template of which was provided as an attachment to the Refusal Intention Notice) and a written submission that was prepared on the applicant's behalf by his solicitor. Attached to the latter was a copy of Dr Pulley's report of 15 October 2018 (which assumes some significance to the present application). The written submission made the following relevant observations (errors original): 7. The Tribunal found that: In light of all the evidence presented to us over a four day hearing, and taking into account the nature of his offending, the judge's sentencing comments, and the nature of his mental illness, we are firmly of the view that the applicant is not a person whom we consider, on reasonable grounds, is a danger to the Australian community. 8. There are several factors relevant to protection of the Australian community. First, [the applicant] has the support of his family. [The applicant]'s brother…has completed studies for a Bachelor in Nursing. The Tribunal found that: We had the benefit of witnessing both the applicant's brother and mother. Each appears to be devoted to the applicant. The applicant's brother has structured his future career so as to provide real and effective support to the applicant. We cannot but be impressed with the applicant's brother. He is a credit to his family and indeed the entire humanitarian visa program. 9. Second, the Tribunal further found that: It is also significant to know that the brother will not be on his own but has the support of other carer's and voluntary associations such as Headspace, as well as Dr Pulley, who has taken a special interest in the applicant. In terms of the assessment of risk, we are not inclined to diminish the support emanating from the family, while recognising that the ongoing care and treatment of schizoaffective bipolar disorder is likely to be especially challenging.

The Minister's decision 16 It was (and still is) not in contest that the applicant does not pass the "character test" for which s 501(6) of the Act provides. That accepted, the Minister addressed the other reasons that the applicant identified in his Refusal Submissions. Only one aspect of the Minister's decision assumes significance for present purposes, namely his observations about the risk of reoffending that the applicant poses to the Australian community. 17 No suggestion was advanced in this court that that consideration was a matter to which the Minister's attention was improperly directed. The applicant accepts - I think rightly - that the Minister was entitled to condition the exercise of his discretion under s 501(1) of the Act upon consideration of the risk that the applicant poses to the Australian community were he to reoffend. The Tribunal Decision, though relevant, did not serve to prohibit any such consideration. 18 After summarising the applicant's criminal history and referring to other "incidents of violence [in which the applicant was involved] while in immigration detention", the Minister's attention turned to the risk to the Australian community that the applicant poses. It is convenient to replicate the relevant observations that the Minister then recorded (errors and emphasis original): 19. I have considered whether [the applicant] poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps [the applicant] has undertaken to reform and address his behavior. I have also taken into account [the applicant]'s overall conduct in the custodial and non-custodial environment, and his insight into the offending. 20. I note the information provided submits that [the applicant]'s offending behavior was directly related to his mental health conditions and lower intellectual capability. While accepting that [the applicant]'s diagnosed condition of Bipolar Affective Disorder is likely to have had some influence on his behavior and noting that the court in 2015 agreed that [the applicant] suffered from 'a significant mental health issue', I further note that the Judge was 'not satisfied on the balance of probabilities that there is a direct causal connection between the psychiatric condition' and [the applicant]'s criminal offending. I also note that the court accepted that [the applicant]'s condition would have made it easier for him to be manipulated by his co-offenders, although most of his offences were committed alone. Finally, I note that a psychiatric assessment provided to the court found that [the applicant] was not suffering from a mental illness as defined in the NSW Mental Health Act 2007 at the time of assessment, and that the court noted he had not been taking his medication at the time of his various offences. 21. [The applicant] completed a number of courses in prison which the Judge considered would improve his prospects of employment. [The applicant]'s first priority in rehabilitation is to manage his mental illness. The Judge noted that [the applicant]'s uncles, who are painters, hoped to be able to assist him with employment. I take these factors into consideration. 22. It is submitted that [the applicant] will not re-offend if he receives proper treatment and care. I accept that he is less likely to offend on that basis, but note that the court agreed with a psychological assessment that the risk of reoffending was 'moderate' and that [the applicant]'s prospects of rehabilitation were 'cautiously reasonable', if he gave first priority to managing his condition, remained compliant with medication and was careful to avoid adverse company. 23. I note the psychologist's observation that [the applicant] has 'little insight into the precipitating factors for his offending behaviour' and 'little insight into the impact of his offending behavior on the various victims of his misconduct'. I further note the psychologist's finding that [the applicant] identified with criminal associates, looking up to them and aspiring to be like them. Sentencing remarks indicate that a number of his later offences consisted of him carrying out robberies at the instigation of other offenders who influenced him. I find his lack of insight and vulnerability to criminal influence is of concern, notwithstanding his stated intention to avoid bad company in future. 24. I note that [the applicant]'s representative would like the Department to take the Administrative Appeals Tribunal (AAT) decision into account in which they found that [the applicant] is not a person whom they consider, on reasonable grounds, is a danger to the Australian community. I note the AAT decision found [the applicant] has the support of his family and noted that his brother...has completed studies for a Bachelor in Nursing, that he also has the support of other carers and voluntary associations such as Headspace, as well as psychiatrist, Dr Pulley, who has taken a special interest in [the applicant], while also noting that [the applicant] will need ongoing care and treatment of his schizoaffective bipolar disorder which is likely to be especially challenging. 25. In response to the recorded incidents in immigration detention I take into consideration the submission that this mostly indicates a mentally ill person struggling with the detention environment. I note the IHMS clinical records and medical history summaries whilst in detention. 26. [The applicant] states he had admitted to…using the drug ICE on one occasion, however this was incorrect, he had used it three or four times from June 2019 and that one of the incidents of aggressive behaviour was because he had been using ICE and he has now decided to not use it anymore. I take into account his explanation that his incidents of assault were because he lives in a threatening environment and needs to use self-defence. I note his other explanations are that he has had arguments with people as he often becomes frustrated about his medical care in immigration detention. 27. I have taken into consideration the comments made by his brother…who is now aware that [the applicant] had been taking the drug ICE while in immigration detention and confirms he was advised by [the applicant] that he will not use ICE again. I note his concern about the safety and welfare of his brother in this detention centre where drugs are available and that it is not an appropriate environment for him having a mental illness, and the recent coronavirus situation. I have considered [the applicant's brother] believes that if his brother was in his and his family's care, they would be able to make sure that he does not use drugs. I note his advice that [the applicant] is a vulnerable person and he and his family want to help and support him. 28. I have taken into consideration that [the applicant] has applied for a Protection (Class XA) visa, for the purposes of remaining in Australia. I have considered the risk of harm to the Australian community in the context of the permanent stay period and specific purposes of the visa application. 29. I note that [the applicant] first arrived in Australia on 20 August 2010, aged 14 as the holder of a Class XB Subclass 202 Global Special Humanitarian visa and has resided in Australia for some 10 years. His Class XB Subclass 202 Global Special Humanitarian visa was mandatorily cancelled under s501(3A) of the Act on 4 October 2016 and his request for revocation of that cancellation was refused on 25 October 2017. I also note that [the applicant]'s subsequent court action was unsuccessful in having the non-revocation decision set aside. 30. I note that [the applicant] has the support of his family, though the court noted that they had not co-operated with Community Corrections when [the applicant] was released on parole. While his experience in prison and the cancellation of his visa is likely to have made him focus on the consequences of his offending, it is clear that he has struggled in the past to manage his mental health condition and has not been able to deal effectively with it, even after two periods of institutionalisation. Although he appears to have his brother, who is now a health professional, to help with his rehabilitation, I am not confident that he can be relied on to maintain medication and treatment for his mental illness in future. 31. Furthermore, I have taken into consideration the psychiatric reports conducted in 2015 and 2018, and I note that there has been no more recent assessment to indicate the risk of him reoffending has increased. I have taken into consideration that he had been using ICE as recently as June 2019 and he has not provided any evidence that he has completed a formal rehabilitation course. I also note the incidents in detention which indicate an ongoing propensity to act in a violent manner when he is under the influence of drugs. 32. Taking into account all the above information, I find there is an ongoing risk that [the applicant] will re-offend. As set out above, [the applicant] has a history of repeated violent offending against members of the community, in situations where he acted without provocation from the victims, and sometimes while influenced by others. I consider that further offending of a violent nature could result in serious physical/psychological harm to members of the Australian community. 19 It was not in doubt that the Minister's reference to the psychiatric report of 2018 was a reference to the report of Dr Pulley. Ultimately, the Minister concluded that the applicant represented "…an unacceptable risk of harm to the Australian community" and that that "outweighed any countervailing considerations". The Visa Application was thus refused pursuant to s 501(1) of the Act.

The present application 20 By an originating application dated 9 March 2021, the applicant challenges the Refusal Decision on a single, albeit broad ground, which it is convenient to replicate it full: 1. The respondent failed to carry out the required statutory task under s 65 of the Act by failing to engage in an active intellectual way with the submissions and evidence provided by the applicant in relation to matters which were relevant to the decision to refuse to grant him a protection visa. Particulars (a) The respondent failed to engage in an active intellectual way with a report of Dr Rafe Pulley, psychiatrist, dated 15 October 2018 (the report). The report was relevant for the following reasons: (i) In relation to the seriousness of the applicant's criminal offending the report provided evidence that the applicant's offences took place in two clusters of offences - from October to November 2012 and October 2013 to January 2014 - at a time when the applicant was experiencing ongoing psychotic symptoms of a severe mental illness; namely, schizoaffective disorder, and that this greatly diminished his responsibility for the offences. The report also provided evidence that the treatment of the applicant's medical condition while in prison from January 2014 until November 2016 fell below a reasonable standard and, at times, was particularly poor, and that his treatment in immigration detention from November 2016 until the date of the report was inadequate until May 2018, again greatly diminishing his responsibility for his conduct in prison and immigration detention. (ii) In relation to the risk to the Australian community, the report stated that the applicant was unlikely to reoffend, with adequate support and treatment for his mental illness, that it is likely that the applicant would cooperate with treatment, and that he has good prospects for rehabilitation. (iii) In relation to the likely effect that removal would have on the applicant, the report stated that, if he were to be sent back to Afghanistan, there is almost no possibility that he would receive adequate psychiatric care. (b) The respondent failed to engage in an active intellectual way with a decision made on 21 October 2019 by the General Division of the Administrative Appeals Tribunal (the Tribunal) in MHCZ and Minister for Home Affairs [2019] AATA 4259 (MHCZ) which considered the following relevant evidence and made the following findings: (i) That Dr Pulley considered the applicant "poses no significant risk of endangerment to himself or others if he was to be released into the community and follow a reasonable management plan". (ii) That upon release, the applicant would have access to mental health facilities and services that were "world class". (iii) That ongoing community assistance would be available to the applicant from a community mental health team as part of the New South Wales public mental health system, that Dr Pulley had himself been engaged to take the applicant on as his private psychiatrist, and that the applicant had the assistance of his family (in particular his brother), such that it would be possible to manage him as a private patient, if he were released into the community. (iv) That the Tribunal had found, at [105]: In light of all the evidence presented to us over a four day hearing, and taking into account the nature of his offending, the judge's sentencing comments, and the nature of his mental illness, we are firmly of the view that the applicant is not a person whom we consider, on reasonable grounds, is a danger to the Australian community. 21 The applicant's originating application also mounted a second challenge to the Refusal Decision but it was abandoned.

Ground 1: failure to engage with submissions 22 At a headline level, the applicant's complaint is that the Minister did not "engage in an active intellectual way" with some of the matters that he advanced in opposition to the Refusal Notice. Properly understood, his contention is that the Refusal Decision was a product of jurisdictional error - and, therefore, is vulnerable to the prerogative relief for which he moves - because the discretion that the Minister purported to exercise was conditioned upon prior consideration of the matters that the applicant advanced, at least some of which the Minister did not consider. 23 It was not in contest that the Minister was obliged to consider the applicant's Refusal Submissions; that is, the material that the applicant advanced in answer to the invitation that the Refusal Intention Notice extended to him. Attention must, then, turn first to how that consideration might manifest. To speak of a submission being "considered" is to speak of a decision maker subjecting it to an "active intellectual process": CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131, 149-150 [76]-[79] (Allsop CJ, Kenny and Snaden JJ). A finding that a minister "…has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ); see also GBV18 v Minister for Home Affairs (2020) 274 FCR 202, 219 [32] (Flick, Griffiths and Moshinsky JJ) and CTB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 166, [15] (McKerracher, Kerr and Wigney JJ). 24 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), the court held (at 604 [47]) that an: …inference that [a decision maker - there, a Tribunal] has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. 25 With those baseline principles stated, attention can turn to the specific matters of which the applicant claims that the Minister failed properly to take account en route to the making of the Refusal Decision. 26 The applicant complains that the Minister did not properly consider the import of Dr Pulley's observations that he (the applicant) was "unlikely to reoffend". Those observations were the subject of affirmation by the Tribunal, which (as has been noted) was "firmly of the view that the applicant is not…a danger to the Australian community". By his written submissions to the court, the applicant contended: 43. Yet the respondent barely referred to Dr Pulley; indeed in the only two specific references to Dr Pulley, at [24] and [31], no reference was made to his conclusion, that the applicant was "unlikely to reoffend". The only references to the AAT's decision on risk was at [24], where the respondent merely "noted" that the applicant's solicitor "would like" the Department to take this decision into account. There was no engagement at all with the content of the decision, nor any indication by the respondent whether the solicitor's submission had been accepted. 27 I reject that submission on two bases. 28 First, it is not apparent that the applicant, by his Refusal Submissions (above, [15]), sought to advance the report prepared by Dr Pulley with a view to convincing the Minister that he posed minimal or no risk of reoffending. Indeed, as the extract of his Refusal Submissions (above, [15]) lays bare, the significance of Dr Pulley's report to the applicant's Refusal Submissions was not the subject of elaboration. The only reference therein to Dr Pulley concerned the Tribunal's assessment of the "special interest" that he had taken in the applicant, which, together with familial support that the applicant would receive if he remained in Australia, formed part of the foundation upon which the Tribunal's ultimate conclusion (namely, that the applicant does not pose a relevant danger to the Australian community) rested. There can be no suggestion that the Minister failed to engage with that submission. His consideration of it is apparent from [24] of his reasons (above, [18]). The Minister took account of precisely what it was that the applicant submitted. 29 Second and in any event, the Minister was not obliged to make specific reference to the conclusions that Dr Pulley or the Tribunal respectively recorded: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593, 604 [46] (French, Sackville and Hely JJ); CMU16 v Minister for Immigration & Border Protection (2020) 277 FCR 201, 220 [80] (Jagot, Yates and Stewart JJ). Nor was he obliged to agree with those conclusions (as counsel for the applicant properly conceded). Although it might incline the court toward a particular conclusion, the Minister's failure to do those things is not proof that his decision was made without proper account of what the applicant submitted. 30 At most, the exercise of the Minister's discretion required that he be conscious of what the conclusions of Dr Pulley and the Tribunal were and that he turn his mind to whether or not he should reach and act upon equivalent findings. On the material before the court, it could not be said that the Minister failed on either account. There can be no suggestion that the Minister was unaware of the findings to which the Tribunal had earlier been drawn. The Minister referred to the Tribunal's Decision in his reasons and, indeed, provided a copy of it with his initial Refusal Intention Notice. Reference was also made in the Minister's reasons to Dr Pulley's report. 31 At the risk of repetition, the Minister was not obliged to address in his reasons each and every aspect of the evidence that potentially informed the conclusion that he drew about the risk that the applicant poses: Minister for Home Affairs v Buadromo (2018) 267 FCR 320, 333 [48] (Besanko, Barker and Bromwich JJ). Instead, he was obliged merely to turn his mind to that question and compose a view having considered the material relevant to it. In the right circumstances, a failure to refer, within written reasons for a decision, to a particular aspect of submitted material might warrant the drawing of an inference that that material went relevantly unconsidered; but where, as here, the Minister's decision is comprehensive and discloses an apparent consciousness of the material in issue, such an inference cannot safely be drawn. 32 All the more is that so given that the Minister's reasons disclose a consciousness of the reasons that animated the Tribunal's Decision. On any view, the Minister was aware of and gave due consideration to those reasons. He referred to them. They in turn, referred extensively to the conclusions that Dr Pulley had drawn (and had communicated, both in his report and in his oral evidence). That being so, the court could not safely infer that the Minister made his decision without evaluating those conclusions. That he did not explain in his reasons why it was that he disagreed with them is not a sufficient basis for assuming that he failed to take account of them. 33 The applicant also complains that the Minister's conclusion about the risks that the applicant poses to the Australian community was nothing more than a "cut and paste" of what a different minister had said a few years earlier (in 2017) when the applicant's original visa was cancelled. Those observations, the applicant submitted, pre-dated both the report that Dr Pulley provided (in October 2018) and the Tribunal's Decision (of October 2019). He maintains that "[t]he 'cut and paste' of these words conclusively show[s] that the respondent failed to take account of Dr Pulley's report or the AAT decision on risk to the community." 34 With respect, it does not (conclusively or at all). The 2017 decision (by which the then Assistant Minister declined to revoke the mandatory cancellation of the applicant's original visa) was not in evidence before the court; but the Minister did not contest the suggestion that it contained passages materially similar to what appears at [32] of the Refusal Decision and I proceed upon that apparently uncontroversial basis. 35 Undoubtedly, the correspondence of language as between the Minister's observations at [32] of the Refusal Decision (above, [18]) and the earlier conclusions of a different minister in 2017 (in the context of the cancellation of an earlier visa) is a circumstance from which the court might now infer a relevant want of consideration. That, though, is not the only inference that that circumstance might sustain. It is equally plausible - and, in my view, far more likely - that the correspondence of language reflects a correspondence of views: that is, that the Minister in the present case chose to express himself as he did because he agreed with what had been recorded in 2017. It was plainly open to him on the material that he had to form that view if he wished, and to express it in language that bore more than a passing familiarity with observations recorded by a different minister (in a different context). There is nothing wrong with the Minister agreeing with a conclusion expressed at some earlier time and, whether for reasons of expedience or otherwise, expressing that agreement by copying the terms in which the earlier conclusion was stated. Doing so is not proof that the Minister proceeded to make his decision without taking account of matters of which he was obliged to take account. Again, it cannot safely be inferred that the Minister here proceeded to make his decision without considering what the applicant advanced. 36 At its core, the applicant's complaint is that the Minister ought to have drawn the same conclusions regarding the threat that the applicant poses to the Australian community as those that Dr Pulley and the Tribunal drew. One might well appreciate why he should wish to say so; but it is not the function of the court on review to evaluate the Minister's decision on its merits. At issue is whether the Minister lacked jurisdiction to make the decision that he made because he made it without first having considered something that he was obliged to consider. That is a hurdle that the applicant cannot clear. On the material before the court, it cannot properly be inferred that the Minister made his decision without first considering the matters that the applicant put to him (or that he was otherwise obliged to take into account). 37 I do not accept that the Refusal Decision was a product of jurisdictional error. The application must be dismissed with the usual order as to costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.