Chapman v Minister for Immigration and Multicultural Affairs

B THE NATURE OF THE APPLICATION

1. As may be expected given the above chronology of events, this is an application for judicial review of the Minister's decision, made personally on 10 June 2024 under s 501BA of the Migration Act.
2. As is well known, s 501BA is an exceptional power which may only be exercised by the Minister personally: s 501BA(4). The section provides as follows: 501BA Cancellation of visa - setting aside and substitution of non-adverse decision under section 501CA (1) This section applies if: (a) a delegate of the Minister; or (b) the AAT; makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person. (2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or (ii) paragraph 501(6)(e); and (b) the Minister is satisfied that the cancellation is in the national interest. …
3. The applicant relies on no less than seven grounds of review to establish jurisdictional error. I note that following oral evidence, the applicant determined not to press what was "Ground Five". It is necessary to address each of these grounds pressed below.

C GROUND ONE

1. The applicant submits that the reasoning engaged in by the Minister in reaching his decision was illogical or unreasonable.
2. While the applicant accepts that the operation of s 501BA requires a "broad evaluative judgment", he rightly notes that this "does not mean the power is unconstrained", free from the constraints of logic and reasonableness: LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; (2022) 179 ALD 299 (at 309-311 [39]-[42] per Charlesworth J) .
3. The illogicality or unreasonableness asserted is premised on the fact the Minister accepted (at [44] of his reasons) that Mr Chapman has "a heart condition which limits his mobility to the extent that he requires a walker and even so 'cannot walk more than a few steps due to becoming breathless'". The Minister noted the applicant "now" requires a wheeled walker to move about, although this was not the case at the time of the offending. Despite the Minister's acceptance the applicant requires a wheeled walker, the Minister went on to say that there is a "low, but not negligible likelihood" that the applicant "[would] reoffend".
4. The applicant submits this conclusion was not logical or reasonable because common-sense dictates the negligible likelihood of someone who has been rendered largely immobile reoffending.
5. It is plain the Minister was cognisant of the applicant's mobility issues. The Minister noted there were worsening restrictions on Mr Chapman's mobility, that Mr Chapman suffers from a multiplicity of health conditions, and that Mr Chapman cannot walk more than a few steps with a walker before becoming breathless (at [44]).
6. The Minister also, however, had knowledge of the circumstances of the offending which, even considering the applicant's mobility issues, would not rule out a chance of reoffending in a similar manner in the future. All three offences occurred in the applicant's own home. Two of the offences involved the applicant approaching and sitting next to a 10-year-old victim on a couch watching television. The sexual touching occurred while the applicant and victim were sitting on the couch. The third offence involved the applicant inviting his 13-year-old neighbour into his home and hugging and kissing her inside the home.
7. Taking the applicant's physical condition into account, and with the knowledge of the circumstances under which the offending occurred, the Minister acknowledged and accepted the AAT's finding that Mr Chapman's risk of reoffending was "at the lower end of the low range" (at [44]). Notwithstanding this level of risk, the Minister considered that Mr Chapman's conduct, if it were to be repeated, "…is so serious that any risk it could be repeated may be unacceptable" (at [45]).
8. As observed by Allsop CJ in Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (at 8-9 [21]), when assessing whether an administrative decision is illogical or irrational, the question is "whether a decision-maker could reasonably come to the conclusion" reached on the same material. If reasonable minds might differ on the conclusion reached, the decision will not be considered illogical or irrational: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (at [45] per Perram, Murphy and Lee JJ).
9. I am amply satisfied that the conclusion reached by the Minister was open on the evidence. The applicant's submission that the Minister's decision was illogical and unreasonable because common-sense dictates the negligible likelihood of someone who has been rendered largely immobile reoffending must be rejected. Indeed, I would go further and observe that given the seriousness and nature of the past conduct, far from being illogical, the notion a risk of repetition of similar conduct was assessed as unacceptable (even if that risk was characterised as being at the lower end of low range) has a compelling logic about it.

D GROUND TWO

1. The applicant next submits that the Minister had "selective regard to the material" in reaching his decision: LJTZ (at 318-319 [85]-[86] per Charlesworth J).
2. The Minster considered the applicant's past conduct, the risk of the applicant reoffending, and the impediments a decision to remove Mr Chapman to the United Kingdom would have on the applicant as relevant in reaching his decision (see [36]-[37], [44]-[45], [74]-[76], [80] and [87]). The applicant submits that, "having entered the arena" by identifying these factors as relevant, "it was not open to the Minister to have selective regard to the material" which bore on these topics: LJTZ (at 319 [86]).
3. Particularly, the applicant regards the Minister as having disregarded "meaningful" evidence concerning aspects of Mr Chapman's mental health, including his cognitive impairment and decline. The applicant submits that this evidence was at least relevant to the topic of "impediments", which was identified as a pertinent consideration by the Minister.
4. Although the applicant's "cognitive impairment and decline" was not considered by the Minister in express terms, the Minister was not under an obligation to consider the matter in that way: Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 (at 333 [48]-[49] per Besanko, Barker and Bromwich JJ). It is sufficient that the Minister considered the applicant's poor physical and mental health at a higher level of generality (at [74]-[81]) (see Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 236 FCR 593 (at 604-605 [46]-[47] per French, Sackville and Hely JJ)).
5. To this end, the Minister plainly appreciated the poor health condition of the applicant. For example, the Minister referred to Mr Chapman's "significant adverse mental or physical health issues, including severe depression…" (at [74]), and further concluded that Mr Chapman would be "likely to face significant health issues" (at [76]). The Minister also was cognisant of the fact that Mr Chapman's condition would pose great difficulties for him upon his return to the United Kingdom, and that he would likely suffer "significant practical, financial and emotional hardship" given his age "and very poor physical and mental health" (at [80]). Provided the above, I do not consider the Minister to have "ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument": Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (at 600 [27] per Kiefel CJ, Keane, Gordon and Steward JJ).
6. The applicant relies heavily on LJTZ to ground his argument. But that case turned on its particular facts (at 319 [86]) and concerned a failure of the decision-maker to consider "more up to date material from the same source… that bore upon the topic" (at 319 [86]). The evidence before the Minister regarding the applicant's cognitive impairment and decline was the same evidence that was before the Tribunal. The Tribunal considered that this evidence was insufficient to make a finding as to the cognitive decline of Mr Chapman (including in respect of a dementia diagnosis). The Minister considered the applicant's mental health more broadly (including the applicant's "severe depression" (at [74])). There was no erroneous selective regard to the material evident.

E GROUND THREE

1. Schedule 5 of the Migration Regulations 1994 (Cth) outlines "special return criteria". Relevantly, criterion 5001(d) applies to Mr Chapman, and provides as follows: The applicant is not: … (d) a person whose visa has been cancelled under section 501BA of the Act if the Minister has not, acting personally, granted a permanent visa to the person after that cancellation.
2. The application of this criterion means that Mr Chapman will not be granted a range of visas he may have sought to obtain in the future, in order to return to Australia after having been removed. The criterion is unable to be waived.
3. The Minister is required to consider the legal consequences of his decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (at 5 [10] per Allsop CJ and Katzmann J). In the light of this requirement, the applicant submits that the Minister was obliged to consider the prohibition on Mr Chapman's return to Australia that would flow from the application of criterion 5001.
4. In the "legal consequences" section of the Minister's reasons (see [71]-[72]), the Minister makes reference to international non-refoulement obligations, and the prospect of a prolonged period of detention. On the basis that the Minister did not expressly address the fact that his decision would prevent the applicant from ever returning to Australia, and in circumstances where the Minister did not explicitly acknowledge in his reasons that the "separation" from the applicant's family would be permanent, the applicant asks the Court to infer that the Minister did not consider criterion 5001. This is said to amount to jurisdictional error.
5. Whether the Minister was obliged to consider expressly the legal consequences of the application of criterion 5001 is not a matter that I need to address in these reasons, although the applicant appeared to accept in his oral submissions that such consideration need not be explicit (T28.42-43). I am satisfied that the Minister appreciated and acknowledged within his reasons that the legal consequence of his decision would be that the applicant could not return to Australia. For example, the Minister states in his reasons (at [2]) that following his decision, the applicant "does not continue to hold any visa". The Minister also considered the applicant's risk to the Australian community (and the need to protect the community by removing the applicant) (at [18]-[45]), and in considering the expectations of the Australian community, outlined that the community "as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia" (at [46]). Further, (at [58]) the Minister discusses the applicant's "permanent" separation from the minor children.
6. Looking at the overall quality of the Minister's reasons, there is no reason to believe that the Minister failed to appreciate the effect of his decision would be that Mr Chapman would be unable to return to Australia indefinitely. This ground must also fail.

F GROUND FOUR

1. Somewhat more substantively, the applicant next submits that the Minister did not grapple in any meaningful way with the evidence before him regarding the high-care needs of Mr Chapman's son, Gregory.
2. Mr Guo, during the course of his cogent argument on this ground, commenced by directing the attention of the Court to the language of a ground advanced by the applicant in LJTZ (at 324-325 [116] per Charlesworth J), which was as follows:
3. The decision of the Minister was affected by jurisdictional error in that, in considering the best interests of the minor children impacted by the Decision the Minister: 3.1. reasoned in a manner that was unreasonable, illogical and/or irrational; 3.2. failed to give real, genuine and proper consideration to a matter which the Minister himself had identified as a 'primary consideration' and which had been the subject of representations by the Applicant under the earlier s 501CA process; and/or 3.3. failed to engage in necessary reflection upon the whole consideration of the human consequences involved, or to confront 'what is being done to people'.
4. In both written and oral submissions, reliance was also placed by the applicant on Allsop CJ's judgment in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628. In that case, his Honour observed that "…the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people… [m]echanical 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" (at 630 [3]).
5. It is said the Minister's consideration of the impacts of his decision on Gregory "speaks for itself" and fails to grapple with the material before the Minister regarding Gregory's high-care needs. Before turning to whether the Minister considered evidence relating to Gregory in a meaningful way, it is worth outlining aspects of the Minister's reasons which relate to this ground.
6. The Minister noted that Mr Chapman has immediate family members living in Australia, including Gregory (at [62]). The Minister noted (at [59]) when considering the "best interests of minor children" that he has "[h]ad particular regard to the statutory declarations submitted by Stuart Chapman and Heather Chapman which were considered by the AAT… I do not consider, however, that any such hardship (emotional, financial or otherwise) would have a long-term impact on the interests of these children". When considering the effects of separation on the applicant's adult children, the Minister acknowledges that the separation would likely cause the children "financial and/or emotional distress" (at [59]). He then went on to note that he has "given particular weight to the presence in Australia of Mr Chapman's children, recognising the particularly strong bond that parents have with their children…" (at [63]). The Minister then stated he has "considered each of their statements, all of which were before the AAT… and accept the AAT's finding that Mr Chapman's separation from his family would cause each of them emotional hardship…" (at [63]). In addition to this, and perhaps most importantly, the Minister acknowledges that "Mr Chapman's children would not have the benefit of any assistance that is currently provided by Mr Chapman in relation to the care of his son Gregory (who is a participant of the NDIS…), including the management of Gregory's NDIS supports and funding" (at [64]).
7. During oral evidence and in written submissions, Mr Guo took me to the evidence of what he considered the "human dimension" of the evidence concerning Gregory. Mr Guo emphasised the following extracts from the applicant's statutory declaration (Ex B (at 83-85)): … He gets very nervous and afraid. He has always had problems, ever since he was born, and as he was growing up. He was terrified of cars lightning and open spaces. It took him a long time to overcome these fears. … Gregory has lived with me all of his life. He has relied on me for everything in his life… being around me makes him calm. … At the moment, he is extremely worried about me and my situation. He's worried that something will happen to me. … He would be so upset… He keeps asking when I'll be back. I haven't told him that my visa has been cancelled or that it's possible that the government will force me to go back.
8. In Gregory's sister's affidavit, Mr Guo referenced the following (Ex B (at 138-141)): The way I would describe his disabilities is to imagine Greg as a ten year old boy. He doesn't fully understand things - only the basic gist of things going on. … Before dad went to jail and Villawood, Greg lived at home with him. He's always lived at home with dad his whole life. … We have tried to discuss dad's legal problems with Greg in a way that he can understand, but it has been very difficult… Even now, Greg will ring me upset about dad. He doesn't know how to deal with this, and he doesn't understand, really… what is going on. He'll say things like, "But dad's really sorry for what he did," and I'll have to explain that, yes, dad is sorry but that… there are consequences. Greg doesn't seem capable of understanding further then [sic] that - for him… he constantly just tells us that dad is really sorry, as if that should be the end of the problem. Sometimes he thinks we're lying to him, and his behaviour will be quite uncontrollable and unreasonable, and we have to talk him down. Sometimes he does understand… and he goes into a very depressive state. We worry about these periods… because it feels like he's undoing any progress he's made… Every time he goes into one of these depressive states, it is left to Stuart and I to pick up the pieces. We're terrified of what will happen to Greg if dad is actually sent to Scotland. Dad and Greg have always had a very close relationship, and they still do now. He's always been Greg's carer. They spent everyday together. They did things together… He was the one person who would be patient with him and help him through his difficulties. It has been a huge adjustment for Greg after dad was put in jail. His entire life was upended… … …The legal fees to dispute the visa cancellation are very expensive, and we had to sell dad's car. This car was used to transport Greg, and it was awful having to sell it, as one of Greg's big anxieties and fear was driving in cars. Greg was used to that car.
9. Mr Guo also highlighted the following statements made by Gregory's brother (Ex B (at 134-137)): Greg has… difficulties with everyday life… he often gets upset at things… He used to be and still is very scared of driving, and it takes him a long time to get used to the driving style of anyone other than dad… Greg used to live with dad for all of his life. … I help him out a lot. I make sure he's okay everyday, I make sure he goes to work, I clean up after him. … He still gets upset at being separated from dad… He missed his dad a lot, as I do. I know that he wants to live with dad again. Greg has a very close relationship with our father… They used to live together, and dad used to drive him everywhere and help him everyday. Greg has told me that he wants to live with dad again. He has been very upset that he was separated from dad. … Since dad's visa has been cancelled, Greg has been upset a lot, crying, and eating a lot more. I think he may have an eating disorder. He's had his entire life disturbed … he's had to get used to other people … and strangers, after dad went to jail. … I think he's a bit in denial about it and he gets very upset … It's hard to tell him things directly without him getting depressed or upset for days. I can't 100% tell Greg everything - I have to hold the information back a bit so it doesn't upset him. It's hard to guess what will happen to Greg psychologically and emotionally if dad is deported. Just his visa being cancelled has caused enough problems as it is. I can't even imagine what would happen to Greg if dad were deported and they never saw each other again. He's relied on dad for all of his life. He needs his dad.
10. The material extracted above, which was before the Minister, depicts an emotional and disturbing account of the effects that Mr Chapman's removal to Scotland would have on Gregory. However, as saddening and disquieting as these accounts may be, I am not engaged in merits review.
11. In the end, the applicant bears the onus of establishing the asserted error, and I am not persuaded or reasonably satisfied that the Minister did fail to engage meaningfully with the material before him concerning Gregory and the impacts that Mr Chapman's removal from Australia would have on him.
12. There is no doubt that the Minister gave "particular weight" to the effects that Mr Chapman's separation from his children would have. He considered the statements of each of the children (which, in Gregory's statement, included information about his health and caretaking needs) and recognised the emotional hardship that the separation would cause, and made specific references to Gregory, including that Gregory is a participant of the NDIS, and that Mr Chapman cares for Gregory. The Minister also recognised that a consequence of Mr Chapman's visa cancellation would be that Mr Chapman would no longer be able to care for Gregory.
13. In the light of the above, notwithstanding Mr Guo's forceful argument, I am not satisfied the Minister failed to sufficiently grapple with the material before him regarding the high-care needs of Gregory as part of his assessment that the factors against visa cancellation were outweighed by considerations of national interest, which pointed to the need for Mr Chapman to be removed from Australia (at [90]).

G GROUND FOUR A

1. The applicant submits that between 10 November 2023 (the date that Mr Chapman succeeded in the Tribunal) and 10 June 2024 (when the Minister made the decision under review), the Minister considered Mr Chapman's case and decided not to intervene. In the applicant's submission, the consequence of this is that the decision made by the Minister on 10 June 2024 should be understood as the Minister attempting to change its position as a matter of public administration, politics, or something else.
2. The applicant's submission proceeds in the following way.
3. In March 2023, the Minister prescribed a directive for his department to follow in deciding which cases should be referred to the Minister for personal consideration of whether his set aside powers, including under s 501BA, should be exercised. Under this directive, weekly "character and cancellations meeting[s]" were to occur to provide an update on the progress and outcomes of this case load for the Minister's visibility.
4. Given that there would have been approximately 30 weekly meetings in the seven months passing between the making of the Tribunal's decision and the Minister's decision, on the face of the material, it is said "there is a strong inference" Mr Chapman's case was brought up at one of these meetings, and a further inference that, Mr Chapman's case having been brought up, the Minister turned his mind to Mr Chapman's case, and made the decision not to intervene.
5. It is on this basis that the applicant asks me to infer that the decision made by the Minister on 10 June 2024 was an attempt by the Minister to change his position from a decision he had made not to intervene in Mr Chapman's case some point after the Tribunal's decision. Relatedly, the applicant also asks me to conclude that the process outlined in the Thresholds Brief was not followed.
6. I am far from satisfied the Minister decided not to overturn the Tribunal's decision at one of the weekly meetings before the 10 June 2024 decision, nor that the process embodied in the Thresholds Brief was not followed. Indeed, I am affirmatively satisfied that a decision was not made by the Minister prior to 10 June 2024, and that the Thresholds Brief process was followed, for the following reasons.
7. First, the seven months that it took the Minister to consider Mr Chapman's is explicable on the documentary evidence. At the time the Thresholds Brief was approved, there were a backlog of cases. There were an existing seventy cases that were considered to meet the threshold criteria, and four-hundred and fifty cases that still required assessment by the Department. Further, the Thresholds Brief acknowledges that "[t]he current time taken to complete the above process means it is possible that a non-citizen will reside in the community for several months after their release from detention as a result of a positive AAT decision until a decision is made by the Minister personally" (Ex A (at 4 [11])).
8. Secondly, the evidence reveals when and how Mr Chapman's case came before the Minister and was subsequently decided. Mr Chapman's case is recorded as being escalated to the Minister's Office on 1 June 2024 (Ex A (at 10, 25)). On 2 June 2024, and via an email communication, Mr Chapman's case is noted as requiring submissions (Ex A (at 8)). On the same day, an email notes that "there are 40 cases that meet the AAT thresholds" and which require submissions to be drafted for the Minister's consideration. Mr Chapman's case is included within this list of forty cases (Ex A (at 64-65)). In an attachment to an internal Department email sent that evening, Mr Chapman's case is identified as having met the AAT thresholds on 2 June 2024. On 8 June 2024, an email was sent to the Minister's office attaching Mr Chapman's s 501BA cancellation consideration submission (Ex A (at 76)). On 10 June 2024, a subsequent email was sent communicating the decision (Ex A (at 75)).
9. When considering the backlog of cases noted in the Thresholds Brief, and the documentary evidence concerning the progression of Mr Chapman's case before me, I think it is overwhelmingly likely that the Minister's decision was made for the first time on 10 June 2024, and that it was made in accordance with the process outlined in the Thresholds Brief.
10. To the extent the applicant persists in a submission that a Jones v Dunkel (1959) 101 CLR 298 inference should be drawn adverse to the Minister's case by reason of a decision not to call the Minister (or a member of the Ministerial staff), this does not assist. As is well known, the absence of a witness or document cannot be used to make up any deficiency in the evidence. It cannot be used (such as would be the case here), to support an inference that is not otherwise sustained by the evidence. The rule cannot fill gaps in the evidence nor convert conjecture and suspicion into inference.
11. Given my conclusion that the decision was made by the Minister for the first time on 10 June 2024, it is unnecessary for me to delve into the issue of whether a change in position is permitted by the Minister on the same underlying facts.

H GROUND SIX

1. The applicant submits that, in all the circumstances, making a decision seven months after the applicant got the "green light" to return to the community and rebuild his life without affording Mr Chapman natural justice was unreasonable.
2. To this point, the applicant submits that there was an unreasonable delay in the Minister making the decision in relation to Mr Chapman's case on 10 June 2024. Given that the Minister's power was not exercised within a reasonable time, the applicant submits that the Minister's power "expired".
3. The applicant states that in considering whether the time taken to make the decision was unreasonable, it is relevant to consider whether the subject matter of the power affects the liberty of a person: Patrick v Australian Information Commissioner [2024] FCAFC 93; (2024) 304 FCR 1 (at 11 [45] per Bromwich, Abraham and McEvoy JJ). The applicant also makes the submission that, while the nature of the preparation, investigation and considerations called for may be relevant, that does not entitle a decision-maker to under-resource himself and hide behind that fact: Patrick (at 11-12 [46]).
4. Applied to the case at hand, the applicant states that s 501BA is directed towards the liberty of the visa holder, and in Mr Chapman's case, over the seven months which passed between the Tribunal's decision and the Minister's decision, he was busy rebuilding his life. The applicant submits that the delay in the Minister making his decision cannot be excused by the need to undertake any processes because the Minister was not required to undertake any particular "investigation" (cf Patrick (at 13 [55])) and chose not to seek out any further material.
5. The applicant also makes the point that cases which met the thresholds were to be raised at "weekly" meetings as directed to occur by the Minister. Given that Mr Chapman's case met those thresholds, the applicant submits that the seven months it took for the Minister to make its decision took "prima facie longer than is required by the nature of the process": Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892 (at [115] per Horan J).
6. The consequence of the above is that, in the applicant's submission, the Minister's power under s 501BA was not exercised within a reasonable time.
7. The exercise of the Minister's power under s 501BA is not subject to any express time limitation, and I do not consider it necessary to decide whether the exercise of the Minister's power under s 501BA is subject to any implied limitation on time, and whether, should the power not be exercised within that period, the power somehow "expires". I do not consider the time it took the Minister to reach its decision to be "unreasonable" in the circumstances of the case.
8. Here, it is pertinent to note that what amounts to an "unreasonable delay" will depend on the facts and circumstances of the particular case at hand, and involves an "objective assessment": Northern Disability Services Pty Ltd (at [111] per Horan J). It was never anticipated that the time it would take the Minister to come to its decision in relation to cases which met the threshold criteria would be fast. As noted above, the Thresholds Brief acknowledges that there were an existing seventy cases considered to meet the threshold criteria, and 450 cases that still required assessment by the Department. Further, the Thresholds Brief acknowledges that the current time taken to complete the process meant it was possible that a non-citizen would reside in the community for several months following their release from detention as a result of a positive Tribunal decision, until a decision was made by the Minister personally: Ex A (at 4 [11]). To this end, and contrary to the applicant's submission, the scheduling of "weekly" meetings to discuss cases which met the threshold criteria does not mean the Minister was to make decisions "in the order of weeks", particularly in the light of the concessions regarding the significant number of outstanding cases contained within the Thresholds Brief.
9. Provided the backlog of cases which existed at the time that the Thresholds Brief was introduced, the preparation necessary to put the Minister in a position where he would be able to decide a case personally, and the nature and significance of the decision being made, the length of time that it took the Minister to decide Mr Chapman's case was not unreasonable.

I GROUND SEVEN

1. The applicant next submits that it was unreasonable for the Minister not to seek input from Mr Chapman regarding what had happened in the intervening months before the Minister reached a decision, and instead assume that the facts had not changed in those seven months.
2. The applicant reasons in its written submissions that a lot of things can happen to a 78-year old man in the space of seven months, and that the Minister made a "brave" assumption that the circumstances Mr Chapman found himself in on 10 June 2024, were the same as they had been seven months prior. In both written and oral submissions, the applicant identified four particular factual anchors which he submitted revealed that the Minister made his decision on the assumption that Mr Chapman's circumstances had remained static. These factual anchors were as follows:
3. In the Minister's reasons (at [35]), the Minister says that he has "considered available information as to matters that may have contributed to Mr Chapman's past conduct, as well as indications of remorse and the extent of Mr Chapman's rehabilitation…where relevant information is available" without seeking any further update on the state of the applicant's rehabilitation;
4. In the Minister's reasons (at [40]), the Minister states that "to this date, Mr Chapman has been unable to explain his offending… Mr Chapman has demonstrated limited insight into his reoffending", which similarly assumed that the ability of the applicant to explain his offending had remained the same;
5. The Minister acknowledges in his reasons (at [44]) that Mr Chapman's mobility will "only get worse", and in the same paragraph, proceeds on the basis that the medical facts had remained the same; and
6. The Minister says that he has considered the expert report of Dr Yoxall, which stated that Mr Chapman is "motivated to continue to engage in treatment" (Ex B (at 370)) and that "… he does demonstrate what appears to be a greater overall degree of psychological insight than may have been present prior to incarceration" (Ex B (at 376)). Despite this, the applicant submits that the Minister's reasons (at [38]-[40]) proceed as if things were frozen in time.
7. I am unable to accept the applicant's submission that it was unreasonable for the Minister to make its decision under s 501BA without seeking further input from Mr Chapman for the following reasons.
8. First, unreasonableness is a "necessarily stringent" concept, and is to be assessed keeping in mind the statutory scheme at issue (Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (at 551 [11] per Kiefel CJ)). To this end, s 501BA(3) expressly states that "the rules of natural justice do not apply to a decision under subsection (2)".
9. The Minister made his decision with this consideration in mind, and was conscious that "[w]hile [s 501BA(3)] means that I am not required to apply the rules of natural justice when making a decision under s 501BA(2) by giving the affected person an opportunity to be heard before making the decision, I am aware that s 501BA(3) does not prohibit me from affording such an opportunity" (at [8]). Ultimately, the Minister decided to proceed without giving Mr Chapman an opportunity to be heard and was cognisant that, "as a consequence, Mr Chapman has not had the opportunity to advance reasons why an adverse decision should not now be made". The Minister's reasons for not inviting further comment do not suggest legal unreasonableness.
10. Secondly, the Minister did not make an assumption that the "state of affairs" were the same as they were at the time that the Tribunal made its decision, and contrary to the applicant's submission, did not "proceed as though he has before him everything the applicant may have to say on the topic": LJTZ (at 321-322 [100], 323 [106] per Charlesworth J). In this respect, the Minister stated that although he had not given Mr Chapman an opportunity to be heard, he had "given consideration to information given by Mr Chapman in relation to the original request for revocation and as reflected in the decision record of the AAT in revoking the decision to cancel Mr Chapman's visa" (at [10]).
11. Thirdly, facts will invariably change in the time which passes between a Tribunal's decision, and the Minister's subsequent decision under s 501BA. However, with s 501BA(3) in mind, the Minister may exercise the power under s 501BA where he "has less than a full picture because the person who is in a position to most directly inform the Minister of relevant factual information about the circumstances in which the power is to be exercised is not required to be given an opportunity to be heard": EUF20 v Minister for Immigration [2023] FCAFC 130; (2023) 298 FCR 492 (at 504 [37] per Abraham, O'Sullivan and Raper JJ). Indeed, the nature of the section and the exclusion of natural justice "contemplates or envisages that the Minister may proceed on the basis of information which is not up to date": EUF20 (at 504 [37]).
12. The Minister's decision to proceed on the information that he had regarding Mr Chapman's case and not afford Mr Chapman natural justice was not a decision which no logical or rational person could reach on the same material: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (at 649-650 [135] per Crennan and Bell JJ). Accordingly, the applicant fails on ground seven.

J CONCLUSION AND ORDERS

1. The Minister may set aside the original decision and cancel a visa granted to the person where it is in Australia's national interest to do so. While some may subjectively consider that taking an action which will cause the applicant to be sent to a country which is now, in substance, foreign to him (particularly given the high-care needs of Gregory) is unwise, that is not the point. There is often a danger in cases like this one of slipping into merits review. Many of the grounds of review, which were skilfully presented by Mr Guo, beguilingly invited a descent into the substantive merits.
2. In this regard, it is pertinent to bear in mind the general caution against the use of "labels" such as "genuine consideration", and the need to consider such labels in their proper context. As repeated by the plurality of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (at 600 [26] per Kiefel CJ, Keane, Gordon and Steward JJ), these labels 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".
3. At the risk of repeating the obvious, the Court's confined task is to evaluate the decision and assess whether it was reached within the bounds of legality having regard to the statutory source of the decision-maker's power: Stretton (at 6 [12] per Allsop CJ). Here, the correct approach for me to adopt is to assess whether the Minister's decision "should be characterised as one which was not a reasonable and rational exercise of the power made in furtherance of the protection of the Australian community": Stretton (at 9 [22]).
4. I am unable to conclude the Minister's decision was not within the scope of the statutory authority conferred upon him. For the reasons I have outlined above, none of the applicant's seven pressed grounds of review succeed in establishing jurisdictional error.
5. Accordingly, the application must be dismissed with costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.