CKL21 v Minister for Home Affairs

The legislative scheme 5 Section 501 of the Act identifies circumstances in which the Minister may - and, in some cases, must - cancel a visa on character grounds. Relevantly, it provides as follows: 501 Refusal or cancellation of visa on character grounds … (3A) The Minister must 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 (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. … 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))… … Substantial criminal record (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… 6 Under s 501CA of the Act, a non-citizen whose visa has been cancelled under s 501(3A) of the Act may apply for the revocation of that decision. That provision relevantly provides as follows: 501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. … 7 As the factual summary above records, there was no contest that the applicant made representations of the sort contemplated by s 501CA(4)(a) of the Act (hereafter, the "Revocation Submissions"). Likewise, the applicant accepted (and still accepts) that he did (and does) not pass the "character test" to which s 501CA(4)(b)(i) of the Act refers. At issue before the Minister, then, was whether there was "another reason" under s 501CA(4)(b)(ii) of the Act why the Cancellation Decision ought to have been revoked. 8 As will be seen, s 195A of the Act has some relevance to this matter. It affords (and afforded) the Minister a non-compellable power to grant to a person in immigration detention a visa of a particular class if the Minister considers that it is in the public interest to do so. 9 Sections 189, 197C and 198 of the Act also have relevance to this matter. Section 189 of the Act requires that unlawful non-citizens be detained in advance of removal from Australia. Section 198 provides that such removal must take place as soon as is reasonably practicable. At the time that the Non-Revocation Decision was made, s 197C provided as follows: 197C Australia's non‑refoulement obligations irrelevant to removal of unlawful non‑citizens under section 198 (1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen. (2) An officer's duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non‑refoulement obligations in respect of the non‑citizen.

The applicant's case for revocation 10 By his Revocation Submissions, the applicant identified an array of circumstances that he contended should suffice to serve, individually or cumulatively, as "another reason" why the Minister ought to revoke the Cancellation. At the risk of over-simplifying them, they included that: (1) his offending had taken place when he was a boy; (2) he has, since then, grown up considerably and better understands the gravity of his crime, for which he is deeply remorseful; (3) he has the support of his family and community; (4) he poses no risk of reoffending; (5) the Australian community would, in light of those realities, expect that he should be afforded "one further chance to prove himself"; (6) South Sudan is not a safe place to which he can return - his family fled Sudan because of ongoing conflict there (after some members of his family were killed) and he would be particularly at risk as somebody who had returned from the Western world; (7) he would endure significant hardship in the event that he were returned to Sudan or South Sudan, as he has no family or friendship connections there, hardly speaks the language anymore and would struggle to survive; and (8) he is effectively and in any event stateless and, if the Cancellation is not revoked, he faces the prospect of indefinite immigration detention. 11 In addition to written contentions, the applicant also provided to the Minister a report prepared by his psychologist, Dr Grech. By that report, Dr Grech opined that the applicant "demonstrated a high level of remorse, victim empathy and insight", that he had undergone "substantial rehabilitation…during his time in custody", that he "appears extremely well supported by his parents and surviving siblings", that his "prospects for long term rehabilitation [are] excellent" and that he "has a bright future in Australia".

The Non-Revocation Decision 12 The Minister did not accept that there was "another reason" to revoke the Cancellation. The written reasons published in relation to that decision addressed various topics. Not all of them are relevant to the present application but it is convenient to trace through those that are. 13 Under the heading "Expectations of the Australia Community", the Minister made the following observations (emphasis original): 23. …I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the original decision to cancel the visa of such a person. [The applicant] has breached this trust as he has been convicted of a very serious crime, that of murder in Australia, which attracted a lengthy term of imprisonment. Additionally, he has been convicted of possess controlled weapon without excuse. [The applicant]'s offending has involved violence and the use of a weapon, which I find the Australian community would regard with significant concern. The seriousness of this conduct would be weighed by the community against the countervailing factors detailed above. 24. Given the very serious nature of these offences committed by [the applicant], I conclude that the Australian community would expect that [the applicant] should not hold a visa. 14 Later, the Minister stated (errors and emphasis original): 58. Given that [the applicant] has lived in Australia from a very young age, I hold the view that the Australian community may afford a higher tolerance of criminal conduct. Noting that on 22 July 2005, [the applicant] was convicted of murder and has been incarcerated since 17 October 2003, serving his sentence of 18 year imprisonment, I find that Australia has a low tolerance of criminal conduct for people, such as [the applicant], who have been participating in, and contributing to, the community only for a short period. 15 The Minister also recorded a number of observations concerning the risk that the applicant would pose to the community if the Cancellation were revoked. He concluded that (emphasis original): (1) the applicant "…is remorseful for his actions…has taken steps to reduce his risk of reoffending…wishes to give back to the community and…has strong family and community support"; (2) the applicant "…belongs to a close knit family…has 'significantly strong ties to Australia,' and…his family remain[s] supportive of him"; (3) the applicant's "…parents, siblings and extended family…remain strongly supportive of [him, which] would aid [his] rehabilitation and reintegration into the community"; and (4) the applicant "…has taken positive steps towards his rehabilitation into the community and…also has strong community support available to him to aid his reintegration into the community". 16 Notwithstanding those conclusions, the Minister was satisfied that: (1) he "…could not rule out the possibility of further offending by [the applicant]"; (2) the applicant's positive conduct since his incarceration "…has not been tested in the general community, where he will have much less supervision and immediate support [than he has had in prison] should any crisis occur"; (3) there was an "ongoing risk that [the applicant] would reoffend"; and (4) the applicant represented an "unacceptable risk of harm to the Australian community". 17 On the issues of the applicant's potential return to Sudan, his potential statelessness and the prospect of prolonged immigration detention, the Minister reasoned as follows: 36. In so far as [the applicant]'s claims may be characterised as giving rise to non-refoulement obligations, I note that [the applicant] is able to make a valid application for a Protection visa. A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country. Any claim by [the applicant] that he would killed for reasons of any antigovernment opinion or for being a returnee from the west could be fully considered through the making of a Protection visa application. … 39. Moreover, I am mindful that Australia's international non-refoulement obligations, which may potentially be engaged in the case of [the applicant], may not be fully encompassed by the protection obligations reflected in the visa criteria in s36(2) of the Act. I am also mindful that the consideration of any non-refoulement obligations that may be owed to a person, as a relevant consideration in the exercise of the discretionary power in s501CA of the Act, is qualitatively different from the consideration of protection obligations in determining whether the person satisfies a Protection visa criterion. 40. Further, I am cognisant of the possibility that [the applicant] may be refused a Protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria. 41. I have also considered [the applicant]'s claims of harm upon return to Sudan and South Sudan outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the applicant]'s claims are such as to engage non-refoulement obligations, [the applicant] would face hardship arising from difficulty in establishing his actual citizenship, the current security situation in Sudan and/or South Sudan, the absence of any family support and being unfamiliar with his home country, having left Sudan as a child of six years of age, to seek refuge in Egypt, before coming to Australia with his parents and siblings as a refugee. Stateless 42. I have taken into account that there is no evidence that [the applicant] currently holds the citizenship of Sudan or South Sudan or any other country. I have taken into account that [the applicant] may be a person who has lost his country of nationality or does not currently hold the citizenship of any country, and may therefore be stateless. … 46. I am aware that the statutory consequence of a decision to not revoke the original decision to cancel [the applicant]'s visa is that, as an unlawful non-citizen whose stateless status means that it is not reasonably practicable to remove him from Australia, he must continue to be detained in accordance with s189 and s196 of the Act, unless granted a visa by me under s195A.

The present application 18 The applicant advances five grounds of challenge to the Minister's Non-Revocation Decision. It is convenient to replicate them in full: 1. The Minister erred by making a finding without a probative basis, namely that 'Australia has a low tolerance of criminal conduct for people… who have been participating in, and contributing to, the community only for a short period.' 2. The Minister erred by making irrational findings of fact, or making findings that were legally unreasonable, about [the applicant]'s future risk of re-offending, namely by: a. Finding that [the applicant] was an 'unacceptable risk' to the community despite the only evidence before the Minister being from an expert and to the opposite effect; b. Finding that [the applicant] was at 'ongoing risk' because he would lack 'immediate support' in the community despite the Minister repeatedly finding that [the applicant] has extensive, ongoing and wide support in the community; c. Finding and/or giving weight to a finding that [the applicant]'s 'conduct has not been tested in the general community', despite the impossibility of that by reason of his imprisonment; and d. Considering [the applicant]'s conduct as a 17 year old boy as a reliable predictor of his future conduct as a middle-aged man. 3. The Minister's decision was legally unreasonable or failed to consider and apply the correct law, namely by failing to weigh the legal consequences of s 197C of the Act as it was then and as it is now when considering the "possibility that [the applicant] may be refused a protection visa because of the ineligibility criteria" [40] or the effect of [the applicant] being possibly stateless on his future period in immigration detention. 4. The Minister failed to exercise jurisdiction and/or perform his statutory task by failing to consider, and deferring to a future protection visa application, the Applicant's representations about Australia's non-refoulement obligations as "another reason" for revocation. Particulars a. The Minister's reasons at paragraphs 32-41 set out that he considered it unnecessary to determine whether non-refoulement obligations were owed to the Applicant for the purposes of the revocation decision because the Applicant was able to make a valid application for a protection visa in which case the existence or otherwise of non-refoulement obligations would, by reason of the application of Direction 75, be considered in the course of processing such protection visa application. b. The Minister failed to have regard to Australia's non-refoulement obligations because the Applicant is able to make a valid application for a protection visa. The Minister treated the Applicant's ability to make a protection visa application as determinative of the consideration to be given to the Applicant's claim to fear harm. The Applicant's fear of harm was advanced as a reason why the cancellation decision should have been revoked. Accordingly the Minister erred by declining to consider that reason on the basis that the Applicant could make a protection visa application. 5. The Minister failed to perform his statutory task by failing to give proper, genuine and realistic consideration to, or to engage in an "active intellectual process" with, the Applicant's representations about the fear of harm he would suffer if he had to return to South as "another reason" for revocation. Particulars a. The Minister purports to have had regard to the fear of harm submitted by the Applicant when considering the extent of impediments if the Applicant were to be removed. b. The Minister failed entirely to assess, and/or make any findings about, the representations of harm the Applicant said he would face and there was no assessment of the strength of the representations, the consequences for the Applicant should they eventuate or the likelihood thereof. c. Failure to make findings in relation to the Applicant's claims of harm, supports an inference that the Minister failed to properly engage with the submissions and the evidence and there was a lack of intellectual engagement with the contention that "another reason" for revoking the cancellation decision was that the Applicant would suffer harm on his return to South Sudan. 19 I shall address each in turn.

Ground one: conclusion without basis 20 By his first ground of challenge, the applicant charges the Minister with having made a finding that had no evidential basis: specifically, that "Australia has a low tolerance of criminal conduct for people…who have been participating in, and contributing to, the community only for a short period." 21 The applicant's criticism of that finding was distilled as follows in the written outline of submissions that he filed in advance of the hearing: 20. This critical finding suffers from two interconnected flaws: a. Other than being taken to be clearly adverse to [the applicant]'s interests, the finding is vague to the point of being meaningless. If by the use of the expression 'Australia has a low tolerance' the Minister is referring to the Australian people, the finding lacks reasonable particularity with regard to the sector or part of the community and what is considered or defined to be 'participating in' and to which 'community' are they concerned about only a short period of participation or contribution by the Applicant. The Minister also fails to adequately define what constitutes a 'short period', especially having regard to [the applicant] having lived in the wider community for 6 years and in Australia for 23 years. b. There is no evidence identified and none known to [the applicant] to support the finding, whatever it means. 22 An administrative decision may be liable to be set aside as the product of jurisdictional error if it is based materially upon a finding that was not open on the available evidence: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402, 407 [19] (Mansfield, Selway and Bennett JJ). At issue presently is whether the Minister's observation about Australia's "low tolerance" should be understood as a finding of fact and, if so, whether it was amply supported by the evidential material with which the Minister was furnished. 23 There are some features of the Minister's observation that warrant attention. First, the reference to "Australia" can only sensibly be understood as a reference to the Australian people as a whole. Assuming that there might be any tolerance at all, the degree to which members of the Australian community might be prepared to tolerate criminality perpetrated by those in situations like the applicant's will inevitably differ as from one member to another. In context, to speak of criminality being "tolerated" is to speak of criminality not automatically warranting a refusal to revoke a visa cancellation. Criminality, per se, is never tolerated; but there are degrees of offending and that gradation reflects in the possibility that, in some cases, the consequences for a visa holder might not be as dire as in others. 24 Questions abound. How might a community's level of tolerance be ascertained? How does tolerance manifest across different members of the community? Is there an acknowledged unit of measurement? In FYBR v Minister for Home Affairs and Another (2019) 272 FCR 454 ("FYBR"), Stewart J (with whom, in the result, Charlesworth J agreed, Flick J dissenting) observed (at 475 [87]): …there are no homogenous or even significantly homogeneous, or possibly even predominantly held, Australian "community expectations" with regard to applicable norms for the refusal or cancellation of visas on character grounds, nor with regard to the outcome in any particular case where the refusal or cancellation of a visa is up for consideration. It is notorious that immigration generally, and immigration by way of refugee status and for humanitarian reasons, in particular, is a highly contested issue in the Australian community. There are very different and strongly held views, and hence expectations, and there is no ready mechanism by which such expectations can be ascertained or measured. 25 Later, his Honour observed that "…as a matter of practical reality there is no one or even necessarily dominant set of community expectations" with respect to decisions about the refusal or cancellation of visas. Earlier (at 471 [66]), Charlesworth J similarly observed that "…there does not exist in fact an Australian community holding [an] homogenous view as to the preferred outcome in any one particular case." 26 Their Honours' observations reflect a reality that Bromwich J identified in Afu v Minister for Home Affairs [2018] FCA 1311, [85]: …The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. 27 With respect (and acknowledging the skill with which the contention was advanced), there is an air of unreality to the applicant's submission. Read fairly and in context, the observation that he seeks to impugn cannot be understood as a concrete factual finding reflective of some impossible synthesis or amalgamation of the views held collectively by the Australian community. On the contrary, it can serve as no more than a record of the Minister's assessment of what those views are. It could hardly be controversial to observe that a minister of the executive answerable to the very community upon whose views he or she purports to act is well placed to make such an assessment. In this case, the assessment that was made seems very much to align with what would ordinarily go without saying: namely, that community reaction to serious criminality engaged in by a visa holder only a relatively short time (in this case, less than six years) after being granted the privilege of a life in this country is unlikely to be positive. 28 I do not accept that the Minister's observation in the present case can be impugned in the way that the applicant sought to impugn it. As this court has repeatedly found in similar or analogous contexts (for example, in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292, 311 [72] (Tamberlin, Sackville and Stone JJ), Oluwafemi v Minister for Home Affairs [2018] FCA 1389, [37] (Thawley J), YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76] (Mortimer J)), the Minister's assessment of the wider community's views was apt to inform his overall decision and was a consideration of which he was rightly entitled to take account en route to making his ultimate decision. 29 The applicant's first ground of challenge to the Non-Revocation Decision must, therefore, fail.

Ground two: legal unreasonableness 30 By his second ground of challenge to the Non-Revocation Decision, the applicant contends that the Minister made a series of observations that bespeak legal unreasonableness, as a result of each of which the decision is liable to be set aside as the product of jurisdictional error. 31 The principles governing this aspect of the applicant's challenge are not disputed. The power conferred upon the Minister by s 501CA(4) of the Act was qualified by the condition that it be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J). That condition, in turn, required that the power not be exercised upon findings that lacked an evident or intelligible justification, or that were otherwise the product of extreme illogicality or irrationality: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130]-[131] (Crennan J and Bell J). 32 The applicant seeks to impugn as legally unreasonable four aspects of the Minister's Non-Revocation Decision. I will address each in turn.

2.1: Finding that the applicant was an "unacceptable risk" 33 The applicant maintains that the Minister's conclusion that he posed an "unacceptable risk" to the community was relevantly unreasonable. That, he says, follows because "the only evidence before him [was] from an expert to the opposite effect". 34 That evidence, the applicant contends, was to be found in the opinions that Dr Grech stated in his report (above, [11]). The complaint was summarised as follows in the written submissions that the applicant advanced in this court: 25. The Minister noted that a specialist assessment of [the applicant]'s risk of re-offending, concluded that '[the applicant] presents a "minimal risk of re-offending" and is not an unacceptable risk to the community'. At no point was the view of that expert contradicted by other evidence, nor was the expert's credibility put in doubt. Notwithstanding that, the Minister went on to relevantly find the following: a. "I conclude that [the applicant] represents an unacceptable risk of harm to the Australian community"; b. "Based on the evidence before more [sic], I find that there is an ongoing risk that [the applicant] would reoffend"; and c. "I could not rule out the possibility of further offending by [the applicant]". 26. The Minister thus failed to deal 'with the inconsistencies [between his findings and the only material before him]… but [rather] proceeded to make a finding in a way which cannot be reconciled with [the only expert evidence before him]. Accordingly [the Court should conclude that the Minister] fell into jurisdictional error by making a legally unreasonable finding of fact'. 35 With respect, none of those contentions can be accepted. Dr Grech's evidence was not - and could not sensibly have been - to the effect that the applicant posed no risk to the community, nor that any risk that he did pose was "acceptable". The opinions that Dr Grech recorded in his report were that the applicant was "remorseful", was "largely rehabilitated" and "has a bright future in Australia". He also was of the view that the applicant's "prospects for long term rehabilitation [are] excellent". Those opinions (which the Minister broadly, if not directly, accepted) might well have gone some way to convincing a reasonable decision maker that the applicant no longer posed a risk to the community, or that any risk that he did pose was otherwise than unacceptable. But so to observe is not to suggest that those were the only conclusions available. On the contrary, the Minister was entitled to assess the question of risk from the perspective of both the likelihood that the applicant might reoffend as he had previously and the gravity attached to offending of that nature. 36 Here, the Minister noted the undeniable gravity of the applicant's criminal history and the necessarily speculative nature of the evidence as to whether he might reoffend in the future. He concluded that the applicant's positive conduct since being jailed "…has not been tested in the general community, where he will have much less supervision and immediate support should any crisis occur". That, in turn, prompted the Minister to "remain guarded about the risk of the [applicant] relapsing into substance abuse", which was a circumstance that had attended his offending in 2003. The Minister concluded that, "[b]ased on the evidence before [him]…there is an ongoing risk that [the applicant] would reoffend [and] that should [the applicant] reoffend in a similar manner, it could result in physical and psychological harm to a member of the Australian community". 37 It cannot be said that any of those findings lacks an evident or intelligible justification, or is otherwise open to be impugned as legally unreasonable. The applicant is a convicted murderer. Like anybody, he is not beyond redemption; but the Minister was entitled to approach his task on the footing that any risk of reoffending should qualify as unacceptable: see, in an analogous context, Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326, 352 [86] (French, O'Loughlin and Whitlam JJ). Doing so was: …not illogical or irrational. It was not legally unreasonable. There was a clear process of reasoning leading to that outcome… [O]ther decision-makers might reasonably have reached a different conclusion on the merits, but that…does not suffice to demonstrate that this decision was legally unreasonable. BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153, 163 [29] (Bromberg J).

2.2: Finding that the applicant would lack immediate support 38 The applicant next contends that the Minister's reasons betray legal unreasonableness because his assessment of the risk that the applicant poses was based, in part, upon his observation that the applicant's relatively good conduct since he was incarcerated "…has not been tested in the general community, where he will have much less supervision and immediate support should any crisis occur". That observation, the applicant contended, is at odds with the evidence that he led (and about which Dr Grech opined) concerning the family and community support that he will enjoy upon his release from prison and the degree to which he has been rehabilitated. 39 In support of that contention, the applicant relied upon the observations of the full court in Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 (Mortimer, Moshinksy and Wheelahan JJ). There, the Assistant Minister made a materially similar observation about the "untested nature of [a former visa holder's] rehabilitation" and concluded, partly by reason thereof, that the applicant there posed an "unacceptable risk". Mortimer J (with whom Moshinsky and Wheelahan JJ relevantly agreed) held (at 623 [95]) that that observation: …could not provide a probative basis for the finding of 'unacceptable risk'. The reality was, by operation of ss 189 and 196 of the Migration Act and the absence of any executive discretion exercised in Mr Splendido's favour to release him back into the community pending consideration of the revocation power, Mr Splendido had (through no fault or conduct of his own) no opportunity to demonstrate his rehabilitation in a practical sense. That fact provided no basis for a positive finding that he was likely to re-offend. 40 In that case, Mr Splendido was said to pose an unacceptable risk to the community because (or partly because) of a recent pattern of criminal behaviour. In concluding that he posed an "unacceptable risk", the Assistant Minister was moved to conclude that, if the cancellation of his visa were revoked, it was likely that he would reoffend. It is in that context that the passage recited above (and the equivalent findings of the other members of the court - Moshinsky J at 626 [113] and Wheelahan J at 626-627 [117]) must be understood. The court held that it was not open to the Assistant Minister to conclude that Mr Splendido was likely to reoffend (and, therefore, posed an "unacceptable risk" to the community) because of the "untested nature of [his] rehabilitation". The fact that his rehabilitation had not been tested was not a circumstance that informed the likelihood that he would reoffend; and, to the extent that the Assistant Minister had reasoned in that way, he did so unreasonably. 41 No equivalent finding was made in the present matter. The Minister did not reason that the unacceptable risk to which he adverted arose because there was some positive likelihood that the applicant would reoffend. Rather and more simply, he reasoned that there remained (as, plainly, there always would) a residual risk that the applicant might resume his use of alcohol or drugs; and that that might, in turn, prompt him to reoffend. It was open to the Minister to reason, as he did, that that risk was not extinguished by the applicant's "progress at rehabilitation" because his "conduct has not been tested in the general community [etc]". 42 The applicant also complains that the Minister's reasoning is at odds with the evidence that was led about the applicant's extensive family and community support. As the summary above makes clear (above, [15]), the Minister accepted that the applicant would be well supported by his family and community. That being so, the applicant complains that: 30. There was no reconciliation in the Minister's reasons between these findings and his ultimate finding that [the applicant] would have 'much less… immediate support' in the community as compared with in gaol. He has no 'parents, siblings and extended family [nor] community support' in gaol. The only evidence was that he had all of those outside of gaol. 43 Respectfully, that submission proceeds upon an unfair reading of the Minister's reasons. The passage in the Non-Revocation Decision that the applicant seeks to impugn was plain enough: it served simply to record that the applicant was effectively supervised whilst in prison and had an obviously limited opportunity to relapse into substance abuse or criminal misbehaviour. To observe as much was not to misstate or misunderstand the extent of the applicant's family or community support. In making an assessment of the risk that the applicant poses to the community, the Minister was entitled to take account of those realities. 44 None of the reasoning to which the applicant points in this regard can be impugned as legally unreasonable.

2.3: The impossibility of testing 45 The applicant next complains that the Minister's reasoning was relevantly unreasonable because, having been in custody since 2003, it has not been possible for his rehabilitation to be "tested in the general community". This complaint was put somewhat summarily (I say intending no disrespect) and can be swiftly addressed. 46 There was nothing illogical or irrational (or otherwise unreasonable) in the Minister's reliance upon the fact that the applicant's positive conduct whilst in prison had "not been tested in the general community". It is not to the point that the applicant had not been afforded any opportunity in that regard. The Minister's observation was to the effect that the applicant's commendable conduct in prison (and the degree of rehabilitation that that conduct was said to reflect) was not definitive as to the level of risk that the applicant might pose to the community in the event that the Cancellation were revoked. One reason why that was so was that that conduct, however commendable, was engaged in within a controlled environment, in which the opportunity for other influences to bear upon the applicant was limited. Viewed through that lens, the Minister's reasoning is evident and intelligible. It was not legally unreasonable for the Minister to make or rely upon the observation that the applicant now seeks to impugn.

2.4: The fact that the offending took place when the applicant was a boy 47 The applicant next complains that the Minister's decision was legally unreasonable insofar as he based his assessment of the risk that the applicant might pose to the Australian community upon conduct in which he engaged as a 17-year-old boy. His conduct in 2003, it was said, could not reasonably serve as a reliable predictor of the conduct in which he might now, as a reformed adult, engage in the event that the Cancellation is revoked. 48 Again, that contention cannot be accepted. There is no suggestion that the Minister was unaware of the applicant's age at the time of his offending, nor that it took place back in 2003. Plainly, he was conscious of both. The opportunity for growth that he has had in the significant period that has passed since his offending is a factor that might properly influence any assessment of the risk that the applicant could pose to the community. But to observe as much is not to conclude that the Minister, in this case, had available to him only one conclusion as to what that level of risk was. On the contrary, a number of criteria bore upon that assessment, including the nature of the offending that took place in 2003, and the possibility that the applicant might, if released back into the community, relapse into the kind of substance abuse that attended it at that time. 49 There was no single conclusion concerning the risk that the applicant poses to which the Minister, on the material before him, ought to have been compelled. The Minister was entitled to take account of the factors to which his reasons advert in that regard. That process of reasoning was evident and intelligible, and cannot otherwise be impugned as unreasonable.

Conclusion 50 None of the Minister's reasoning was attended by legal unreasonableness in any of the ways that the applicant alleges. The applicant's second ground of challenge to the Non-Revocation Decision is not made good.

Ground three: the legal consequences of s 197C 51 The applicant's third ground of challenge to the Non-Revocation Decision charges the Minister with having misunderstood, or failed properly to consider, the effect of s 197C of the Act. 52 The written submissions that the applicant advanced in support of this ground identified a number of errors so alleged. With respect, they were not as easy to follow as the other grounds; but, as I understood the contentions, it was put that the Minister: (1) failed to comprehend that the effect of s 197C was that the applicant would, as soon as was reasonably practicable, be removed from Australia to Sudan (or possibly South Sudan), where he would face harm in various forms; and (2) misunderstood the interplay between ss 195A and 197C of the Act. 53 By his written submissions, the applicant also appeared to contend that the Minister erred by not taking account of, or not making a decision consistent with, amendments that were made to s 197C after the Non-Revocation Decision was made. At the hearing, however, counsel for the applicant clarified that the applicant did not intend "…to suggest that the Minister should have considered the effect of the legislat[ive] changes that weren't enacted at the time." 54 On its face, the Non-Revocation Decision proceeds upon the correct statutory understanding that the applicant might be removed from Australia to Sudan or South Sudan even if that would offend against Australia's obligations of non-refoulement. As much is clear from the Minister's consideration (particularly at [41] of the Non-Revocation Decision) of the consequences to the applicant if that were to happen. 55 That consideration proceeded upon the basis that Sudan (or possibly South Sudan) would recognise the applicant as a citizen and agree to receive him. That was, by no means, certain; and, accordingly, the Minister went on to consider the alternative possibility that the applicant is effectively stateless. In the course of doing so, he noted (Non-Revocation Decision, [46]) that the applicant was (or might be) "an unlawful non-citizen whose stateless status means that it is not reasonably practicable to remove him from Australia" and that, as a result, "he must continue to be detained in accordance with s189 and s196 of the Act, unless granted a visa by me under s 195A". Those observations were orthodox and reveal no misunderstanding of the relevant statutory framework. 56 Additionally, there is nothing in the Non-Revocation Decision that discloses any misunderstanding as to the proper operation of s 195A of the Act. As is apparent (particularly from [46] of the Non-Revocation Decision), the Minister was conscious of the non-compellable power conferred upon him by s 195A of the Act to grant the applicant a visa (and, thereby, facilitate his removal from immigration detention). By his written submissions, the applicant contended that the Minister: …misunderstood the law in a number of different ways[:] a. The 'me' referred to was the then Minister for Home Affairs, the Hon. Peter Dutton MP. It was not his personal power to grant a visa pursuant to s.195A of the Act. It was a power that was assigned to any Minister responsible for the administration of the Act. That person may or may not have the same view and underlying set of values as Mr Dutton when it came to exercising the 'public interest' power in s.195A of the Act. b. 'Reasonable practicability' of removal under s.198 of the Act has no regard to whether a person is stateless. All that matters is that there is 'any place willing to receive' that person. The length of time that the person would be received is of no relevance to this inquiry either. c. The Minister, or his officers/delegates, have the 'power of selection of the destination reached upon removal'. That power would directly impact where [the applicant] would next live and what impact that would have on him in the scenario that s.195A of the Act was not exercised favourably to [the applicant] and he was, as a result, removed from Australia. 57 With respect, those submissions are good examples of attempts to read the Minister's reasons with "…an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). It cannot sensibly be suggested (if it is suggested at all) that the Minister wrongly thought that the power conferred by s 195A of the Act was conferred upon him in a personal capacity, rather than in his capacity as the Minister. Likewise, observing (as he did) that "it is not reasonably practicable to remove [the applicant] from Australia" discloses no misunderstanding of the statutory scheme. There was no suggestion that any country other than Sudan or South Sudan might be willing or able to receive the applicant. There was no "power of selection" in any meaningful or practical sense. 58 The Non-Revocation Decision did not proceed upon any of the statutory misconceptions that the applicant alleged. The third ground of challenge is not made good.

Ground four: failure to consider non-refoulement 59 By his fourth ground of challenge, the applicant asserts that the Minister erred by failing to consider his contention that the Cancellation ought to be revoked because Australia owes obligations of non-refoulement in respect of him. 60 As is set out above, the Minister in his reasons considered that it was unnecessary, in the context of revocation, to determine whether non-refoulement obligations were owed in respect of the applicant because, if they were, he was able to make a protection visa application. Were he to do so, the existence or otherwise of any obligations of non-refoulement would, so the Minister continued, be addressed in that context. By reasoning in that way, the Minister is said to have failed to address a consideration that the applicant advanced. 61 It is not in dispute that the Minister was obliged to consider the contentions that the applicant advanced by means of his Revocation Submissions: DQM18 v Minister for Home Affairs (2020) 278 FCR 529, 536-538 [23]-[34] (Bromberg and Mortimer JJ), [153]-[158] (Snaden J); Navoto v Minister for Home Affairs [2019] FCAFC 135, [86]-[89] (Middleton, Moshinsky and Anderson JJ). Any decision that the Minister made under s 501CA(4) without first having done so was not a decision that he had jurisdiction under the Act to make. 62 As this court has recognised, Australia's obligations of non-refoulement do not perfectly align with the criteria upon which s 36(2) of the Act conditions the granting of protection visas: Ibrahim v Minister for Home Affairs (2019) 270 FCR 12, 35 [100]-[103] (White, Perry and Charlesworth JJ); Ali v Minister for Home Affairs (2020) 380 ALR 393 ("Ali"), 403-404 [28] (Collier, Reeves and Derrington JJ). In AFD21 v Minister for Home Affairs [2021] FCA 4 ("AFD21"), I made the following observations (at [25]-[26]): …[T]he prospect that a former visa-holder might be removed from Australia in contravention of non-refoulement obligations might well qualify, in and of itself - that is to say, in addition to whatever might be the constituent circumstances that are said to engage those obligations - as "another reason" that warrants the revocation of a visa cancellation decision. As much were the recent conclusions of the full court in Ali. In that case, as in this one, the appellant nominated various circumstances that he said would befall him were he to be removed from Australia. He surmised that they were sufficient to engage Australia's obligations of non-refoulement. As occurred in this case, the minister declined to make any assessment on that front on the basis that, if non-refoulement obligations were engaged, they could (and would) be addressed in the context of an application for a protection visa. The court concluded (at 426 [101]): In this case the appellant's partner visa had been cancelled and he had advanced, as a ground for the purposes of s 501CA(4)(b)(ii), the potential breach of Australia's non-refoulement obligations if the cancellation were not revoked. If the Assistant Minister formed a state of mind that this ground amounted to "another reason" within that section, the power to revoke the cancellation of the partner visa would be enlivened. No question of the granting of a protection visa arose. Although the ground advanced in support of revocation contains some hypothetical elements to it, including what is likely to happen if the revocation decision is not made, it cannot be ignored. Nor can it be sidestepped by raising another hypothetical proposition that a protection visa application might be made and that the non-refoulement obligations and the consequences of non-compliance with them might be dealt with then. 63 If the Minister was obliged to consider representations that the applicant advanced as to Australia's obligations of non-refoulement, then it will necessarily follow that his failure to do so bespeaks jurisdictional error, which, subject to questions of materiality, should be addressed through the granting of appropriate relief. The question turns on whether or not any such contentions were advanced. 64 By his Revocation Submissions, the applicant contended that: (1) he was at risk of harm if returned to Sudan or South Sudan; (2) although he was born in Sudan, his parents were both born in what is now South Sudan; (3) as a result, he "may be a South Sudanese citizen by law"; (4) he might find it difficult to establish that his family hails from South Sudan; and (5) in those circumstances (involving real questions as to his proper nationality), he should be considered "effectively stateless". 65 Under the heading, "International non-refoulement claims", the applicant's Revocation Submissions stated: While we strongly submit that [the applicant] is effectively stateless, in the event that the Department of Home Affairs does not agree with this conclusion following active research and investigations, we submit that an International Treaty Obligations Assessment must be undertaken and an opportunity provided for [the applicant] to provide submissions regarding his international non refoulement claims for either or both countries. We submit that a determination first needs to be made regarding [the applicant]'s citizenship, as it is submitted that [the applicant] does not have citizenship of any country. If the Department of Home Affairs find otherwise, [the applicant] can only be provided with a genuine opportunity to provide submissions regarding international non-refoulement claims if he is advised of the relevant country of reference following the Department of Home Affairs' investigation. This is particularly vital as [the applicant] came to Australia with his family as the holder of a subclass 200 Refugee visa. 66 It is apparent, then, that the applicant did not submit that Australia has obligations of non-refoulement in respect of him. Nor did any such suggestion clearly or plainly emerge from what he did submit. The Minister was not obliged to consider, as a reason favouring revocation of the Cancellation, a circumstance that the applicant in fact did not advance: Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523, 547-548 [79]-[80] (Robertson, Moshinsky and Bromwich JJ). Given that the applicant had the advantage of representation at the time that his Revocation Submissions were advanced, the court should be slower than it otherwise might be to read into his contentions a suggestion that his case engaged non-refoulement obligations: AFD21, [34]-[35] (Snaden J), and the cases there referred to. 67 The circumstances of this case bear a similarity to those that the full court considered in Sowa v Minister for Home Affairs (2019) 369 ALR 389 (Jagot, Bromwich and Thawley JJ). There, an applicant sought to have the cancellation of his visa revoked on bases that included that he was at risk of harm in the event that he were removed from Australia. He did not, in terms, suggest that that risk was sufficient to engage Australia's obligations of non-refoulement. The court concluded that the assistant minister's failure to consider non-refoulement in that context - which, as here, reflected a belief that consideration of that issue could be deferred for assessment in the context of a protection visa application - did not amount to a failure to take account of a mandatory consideration. 68 It follows that the Minister did not fail to consider a contention that he was obliged to consider. The applicant's fourth ground of challenge is not made good.

Ground five: failure to consider risk of harm 69 By his fifth ground of challenge to the Non-Revocation Decision, the applicant charges the Minister with having failed properly to consider the representations that he advanced about the hardships that we would endure were he to be removed to South Sudan. 70 In AFD21, I made (at [41]-[46]) the following observations about the Minister's obligation to consider contentions advanced under s 501CA(4)(a) of the Act: 41 There is no doubt that the Minister was obliged to consider the submissions that the applicant put in support of revocation (including that, if he were returned to Burundi, he was at risk of being killed on account of his mixed Tutsi/Hutu origins): Omar, [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); DQM18 v Minister for Home Affairs [2020] FCAFC 110 ("DQM18"), [23]-[34] (Bromberg and Mortimer JJ), [153]-[158] (Snaden J); Navoto v Minister for Home Affairs [2019] FCAFC 135, [86]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Buadromo (2018) 267 FCR 320 ("Buadromo"), 332 [42] (Besanko, Barker and Bromwich JJ). At issue is what such "consideration" actually required in this case: did it require something other than engagement by the Minister in an active intellectual process directed at the representations by which he was confronted (see, for example: CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 ("CAR15"), 149-150 [76]-[79] (Allsop CJ, Kenny and Snaden JJ); Buadromo, 332 [42]-[43] (Besanko, Barker and Bromwich JJ)); did it, for example, require that he form and state a view or conclusion or "finding" addressing the point that was advanced? 42 In Omar, the full court observed at [39] (emphasis added): Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia's non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [32]-[36] per Perram J). 43 Later, their Honours explained that the representations in issue in that case - namely, that the appellant was at risk of substantial harm if returned to his native Somalia - "…were of such central significance that the Assistant Minister had to engage with them properly and make findings of fact one way or the other" (emphasis added): Omar, 608 [43(a)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). 44 In Buadromo - which, like Omar, was another case concerning the application of s 501CA(4) of the Act - the full court identified (at 332 [46]) some circumstances in which findings regarding contentions advanced by an applicant might not be required: A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows. These are only examples and it is not possible to be comprehensive. (emphasis added) 45 Although Omar leaves open the possibility that a decision-maker will, in some circumstances, be obliged to make specific findings as to whether or not (or as to the likelihood that) an applicant will be subjected to a species of harm to which he or she fears being subjected upon removal from Australia, it remains the case that "…the duty to consider a representation does not necessarily require the making of a finding of fact…": CTB19, [15] (McKerracher, Kerr and Wigney JJ), citing Buadromo, 332 [46] and Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643, 653-654 [41] (Rares and Robertson JJ, with whom Flick J agreed in the result). 46 In Guclukol v Minister for Home Affairs [2020] FCA 61 (Snaden J) - a revocation case not unlike the present - the applicant complained about a decision-maker's failure to make a finding as to his submission that, if removed to his native Turkey, he would "struggle to subsist". I made the following observations (at [28]): The difficulty that often, if not always, arises in cases such as the present (and that arose in Omar and Buadromo) is that determination of the consequences or circumstances that an applicant will face if removed from Australia - that is, the consequences or circumstances by reason of which it is said that there is "another reason" under s 501CA(4) of the Act why the decision to cancel his or her visa should be revoked - typically requires speculation. Often, it requires speculation upon imperfect or incomplete evidence, or to a degree that doesn't easily permit of definitive findings. The present case is a good example. It is, of course, the case that the applicant's fate if returned to Turkey is not (and cannot be) precisely known. He might, as he submitted to the Minister, "struggle to subsist". He might not. Those observations were not disturbed on appeal and have since been the subject of apparent approval: CTB19, [15] (McKerracher, Kerr and Wigney JJ). 71 Those observations apply in the present context. The applicant's contention that, were he to be removed to South Sudan, he was at risk of subjection to violence, was a contention that the Minister was obliged to consider before deciding, one way or the other, whether there was "another reason" for revoking the Cancellation. 72 By his written submissions, the applicant contended (references omitted): 61. If the Minister is satisfied on the material presented that a relevant claim is made out to a required level of certainty, the Minister must make a positive finding to that effect. If the Minister is not so satisfied, the Minister must make a negative finding. The issue in this matter is that the Minister makes no finding and this gives further rise to the inference that the Minister did not engage in an active intellectual process with [the applicant]'s representations. 73 With respect, I do not accept - at least in the circumstances of this case - that the Minister was obliged to make a finding about whether or not the harm that the applicant said that he feared would befall him in South Sudan would or would not, in fact, be realised. In circumstances where the contention was pitched at a level of generality and involved, as inevitably it did, a healthy degree of speculation, "…the duty to consider [it did] not necessarily require the making of a finding of fact": Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 (2020) 280 FCR 178 ("CTB19"), 185-186 [15(9)] (McKerracher, Kerr and Wigney JJ). 74 Whether or not the Minister considered what the applicant advanced is a question of fact, which, in the usual course, is to be established as a matter of inference. 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 the [decision maker - in that case, 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. 75 Those observations (or analogues of them) have been applied more recently. In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, (Griffiths, White and Bromwich JJ), the court held (at 364 [48]) that a finding that a decision maker "…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". Those observations were endorsed in CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131, 149-150 [76] (Allsop CJ, Kenny and Snaden JJ), GBV18 v Minister for Home Affairs & Anor (2020) 274 FCR 202, 219 [32] (Flick, Griffiths and Moshinsky JJ) and CTB19, 184-186 [15] (McKerracher, Kerr and Wigney JJ). Further, "…the court should be slower to infer an absence of consideration of a contention that lacks specificity or detail than it might otherwise be in the case of one advanced with greater particularity": AFD21, [50] (applying Ogbonna v Minister for Immigration and Border Protection (2018) 261 FCR 385, 405 [62] (Thawley J)). Put another way, a claim that is advanced summarily or in general terms may not warrant anything more than general or summary consideration: AXT19 v Minister for Home Affairs [2020] FCAFC 32, [56] (Flick, Griffiths and Moshinsky JJ). 76 On the facts presently before the court, it should not be inferred that the Minister failed to consider anything that the applicant advanced about the risk of harm that he would or might endure in the event that he is removed to South Sudan. The Non-Revocation Decision discloses an apparent consciousness of the submissions that the applicant advanced in that respect. Whether or not the applicant's fears will be realised is a question that does not lend itself to the making of definitive findings; but their absence in the Minister's reasons does not mean that the issue went relevantly unconsidered. On the contrary, the Minister in the present case was alive to the fact that South Sudan was "a war-torn country which has general political instability," recorded the concerns that the applicant had advanced and accepted that the applicant would face "significant hardship" if returned there. However general those observations might fairly be described as, they reflect the general nature of the representations that the applicant advanced. It is apparent that the Minister did not consider that the matters that the applicant raised were sufficient to constitute "another reason" for revoking the Cancellation. That conclusion was open to him to draw. 77 I do not accept that the Minister, in the present case, failed to consider the representations that the applicant asked him to consider. The applicant's fifth ground of challenge is not made good.

Conclusion 78 None of the applicant's challenges to the Non-Revocation Decision can succeed. The application should, accordingly, be dismissed with the usual order as to costs. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.