DQM18 v Minister for Home Affairs

The Minister's reasons 12 The written submissions filed on behalf of the Minister fairly summarise the reasons for the decision. I gratefully rely on that summary for a large part of what follows. The references are to the paragraph numbers in the reasons. 13 The Minister first considered the pre-conditions to s 501CA ([3]-[9]). The Minister then considered: (a) whether there was another reason why the cancellation decision should be revoked ([10]), viz, the best interests of minor children ([13]-[22]), including in light of the fact that the applicant and his siblings lost a sister in Sudan in 2013 ([18]); (b) the expectations of the Australian community ([23]-[26]); (c) international non-refoulement obligations ([27]-[32]); (d) the strength, nature and duration of ties to Australia ([33]-[44]); (e) the extent of social and economic impediments and risks to safety and health if removed ([45]-[51]), including the notion that the applicant has no reasonable prospect of integrating back into a community in which he has not lived in since he was a child, and that his capacity to find employment and sustain himself would be minimal, in a country that was experiencing instability and violence ([48]) and the fact that there is a real chance that the applicant's mental and physical health issues would go untreated and deteriorate; and (f) protecting, and the risks to, the Australian community ([52]-[95]). 14 The Minister also made the following findings. 15 First, the applicant will have similar levels of access to health and other services that are generally available to other citizens of Sudan or South Sudan. The Minister accepted that Sudan and South Sudan do not have the same standards of health care and social welfare support as Australia, so the standards of any health care and social welfare support would not be at the level as that of Australia ([50]). 16 Secondly, the Minister considered that the applicant would face "some initial hardship" in relation to cultural and language barriers should he return to Sudan or South Sudan, but that he can speak Sudanese proficiently. Given the applicant's lack of family support in Sudan or South Sudan, the Minister found that he would experience "considerable hardship" if he were removed to Sudan or South Sudan, particularly given the length of time he has lived in Australia, and his strong family connections in Australia. The Minister also found "that the presence of [the applicant's] sisters in Sudan may provide some support" for him. He also took into consideration the applicant's concerns for his safety if he was returned to Sudan and found that those fears of returning would exacerbate his hardship ([51]). 17 The Minister considered first the nature of the applicant's criminal conduct, and found that his overall history of offending over a sustained period (which included physical domestic violence and breach of an intervention order and other violence, including against the police) was very serious ([66]). 18 The Minister acknowledged the trauma that the applicant had suffered in Sudan ([69]), and noted the submission that his offending occurred in the context of alcohol abuse and trauma ([71]). The Minister accepted that the trauma the applicant experienced in the past may have contributed to his alcohol abuse and behaviour leading to this offending ([73]). 19 The Minister noted that in prison the applicant completed an alcohol and drug rehabilitation course, an occupational health and safety course, a course in logistics, and that the applicant held a white card which enabled him to work in prison ([77]). The Minister accepted that the applicant had made some progress to address his alcohol issues, but considered that his ability to resist alcohol had not yet been tested in the community ([78]). 20 The Minister took into account that the applicant had been the subject of a number of incidents in immigration detention involving threatening, violent, abusive and aggressive behaviour towards staff members and other detainees ([89]). 21 The Minister found that the applicant is a recidivist offender, in particular involving repeated domestic violence. He noted that although the applicant had taken some steps toward rehabilitation while incarcerated, he had reoffended in the community and his rehabilitative efforts since his last offending had yet to be tested in the community. He also found that there was no information to show that he had dealt with or resolved his anger issues, and that he had breached bail and various judicial orders, as well as committing multiple offences after receiving a warning from the Department. The Minister also found that the applicant's behaviour in immigration detention gave rise to concern that the applicant had not addressed his abusive and violent behaviour and had not fully rehabilitated. The Minister thus found that there was an ongoing risk that the applicant would reoffend ([94]). 22 The Minister reached the following conclusions. He gave "primary consideration" to the best interests of the minor children in the applicant's life and found that their best interests would be served by revoking the cancellation decision ([99]). 23 On the other hand, he gave "significant weight" to the very serious nature of the crimes committed by the applicant, being physical violence against his former partners, the contravention of family violence orders, and the cumulative effect of other repeated offending ([100]). He found that the Australian community could be exposed to great harm should the applicant reoffend in similar fashion and that he could not rule out the possibility of further offending by the applicant ([101]). 24 The Minister concluded at [103] that: … [the applicant] represents an unacceptable risk of harm to the Australian community and that protection of the Australian community outweighed the best interests of the minor children in his life, as a primary consideration, and any other considerations as described above. These include his lengthy residence in Australia and bonds; claims that he will suffer hardship and harm if returned to Sudan or South Sudan; employment and familial support in Australia; and the hardship that [the applicant], his family and social networks will endure in the event the original decision is not revoked.

Ground 1 25 The applicant submits that the Minister's decision was affected by legal unreasonableness, illogicality and/or irrationality and this constituted jurisdictional error, or, in the alternative, that he failed to have regard to representations made by the applicant. 26 The applicant submits that one of the applicant's significant representations was that he had limited contacts in Sudan and would face major impediments to returning, including a lack of social, medical and economic support in a country in which there were real risks of harm and the applicant maintained fears for his safety. The evidence indicated that these "limited contacts" were his two sisters who remained in Sudan. 27 The applicant submits that the "[t]he vice in the … decision is located at [51]". 28 It is as well to set out that paragraph in full: I consider that [the applicant] would face some initial hardship in relation to cultural and language barriers should he return to Sudan or South Sudan. However, I note that [he] is able to speak Sudanese proficiently. Given his lack of familial support in Sudan or South Sudan, I find that [he] will experience considerable hardship should he be removed to [Sudan or South Sudan], particularly given the length of time he has lived in Australia, and his strong family connections in Australia. I find that the presence of his sisters in Sudan may provide some support for [him]. I take into consideration [the applicant's] concerns for his safety if he was returned to Sudan and I find that his fears of returning will exacerbate his hardship. (Emphasis added). 29 The applicant submits, and the Minister agrees, that the sentence in bold in [51] of the reasons can only be read as "qualifying" the hardship that he would experience if he returned. 30 The applicant submits that the finding that the presence of his sisters in Sudan may provide some support for him were he to return to Sudan or South Sudan was unreasonable, illogical or irrational for these main reasons. 31 First, that there was no basis to state that they could provide "some support" to the applicant because of the dire circumstances in which they find themselves. The two sisters (both in their early 30s) live in the Jebel Aulia Refugee Camp in Khartoum, the capital of Sudan. One sister has an 11-year-old daughter with no male support. According to their mother, the sisters are in unsafe and unsettled accommodation and are regularly encouraged by the authorities to return to South Sudan, from where they ethnically originate. The mother has reported that since South Sudan became independent in 2011 there has been less freedom of movement and South Sudanese are encouraged to return despite the current lack of safety and security. 32 The applicant submits that "[i]t is completely unclear how, in light of that evidence, the [Minister] could find that the [a]pplicant's sisters could provide some support to the [a]pplicant in Sudan. There was no rational, evident or intelligible basis for the [Minister's] finding." 33 Further or alternatively, it is submitted that the Minister did not have regard to the applicant's representation about the situation of his sisters in Sudan, which included what his legal representative said, viz, that his remaining family's situation was precarious and that this went to (a) the lack of support he had in Sudan and (b) the potential risks he faced upon return. 34 The Minister submits that there is nothing illogical or irrational about the finding that the presence of the applicant's two sisters in South Sudan "may provide some support" for the applicant. He says that the statement is nothing more than a recognition that the presence of the applicant's two sisters in Sudan may provide some support to the applicant, and that it must be read in the context of the acknowledgement in the same paragraph that the applicant "lack[s] family support in Sudan or South Sudan" and that he would experience "considerable hardship" on his return there. To say, in light of that, that his sisters "may provide some support" is, the Minister submits, to say no more than that the presence of two sisters in Sudan is an advantage (however slight) that is not available to a person who has no family in Sudan. 35 If I may say so, with great respect to counsel for the applicant, it seems to me that his submission in respect of ground 1 reads too much into a single sentence in the reasons, which, leaving that sentence aside, unambiguously recognise the real hardship that the applicant would face were he to return to Sudan or South Sudan - because he has not lived there since he was a child, he has no reasonable prospect of integrating back into a community where he would lack social, medical, economic and familial support, and where there is a real chance that his mental and physical issues would go untreated, among other reasons. 36 In my view, there is nothing illogical or irrational, as those terms are used in the cases, in the notion that, all that hardship conceded, the presence of the two sisters in Sudan may provide some support to him, regardless of their own regrettably dire living conditions there. It is not nearly enough that minds may differ about such things. For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must be shown, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions. See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137, [148] (Robertson J), cited with approval by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at 221, [52] and by the Full Court in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 517, [60] (McKerracher, Griffiths and Rangiah JJ). In my view, the innocuous enough statement that the presence of the applicant's sisters in Sudan may provide some support to him cannot be characterised as illogical or irrational reasoning in the sense described in those cases. 37 In any event, even if the statement were to be characterised as relevantly deficient, in the context in which it was made, it cannot be material. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result. And where the impugned finding is but one of a number of findings that independently may have led to the decision maker's ultimate conclusion, jurisdictional error will generally not be made out. See CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 517, [60], and the cases there cited. 38 In my view, the statement that the presence of the applicant's sisters in Sudan may provide some support to him was immaterial to the end result. That is because, as [103] of the reasons makes clear, the Minister concluded that the applicant represents an unacceptable risk of harm to the Australian community and that protection of the Australian community outweighed each of the other considerations, including the best interests of the minor children, as a primary consideration, and all of the other considerations, including the various hardships that the applicant will face if he is to return to Sudan or South Sudan.

Ground 2 39 Ground 2 is that the Minister failed properly to consider representations made on behalf of the applicant that attempted to explain incidents of violence during his time in immigration detention. 40 The issue arises in this way. After the matter was remitted (see [6] above), the Minister told the applicant that he might also take into account further information in making his decision, being "Client Incident Reports" about incidents that occurred whilst the application was in immigration detention between 14 December 2016 and 25 November 2017. 41 As the applicant's written submissions concede, those reports contain "allegations of violent, threatening or disruptive conduct" by the applicant. 42 In response, the applicant provided to the Minister: (1) an email dated 2 March 2018 in which he complained about racist and abusive behaviour by one detainee for almost a year and a half, as well as the lack of action by detention centre staff; (2) a complaint form dated 27 November 2017 further detailing the incidents of racist abuse and allegations of assault by detention centre staff; (3) a complaint form dated 10 November 2017 by another detainee regarding the racist abuse of the same detainee complained about by the applicant; and (4) a further email dated 11 March 2018 regarding racist abuse, which the applicant described as "torture that I was getting … [which] was overwhelming to the point that it occurred several times a day and the … officers never did nothing about the continuance of abuse." 43 These documents were in support of a submission by the applicant's lawyers the substance of which was that the incidents of violent, threatening or disruptive conduct described in the incident reports had to been understood in the context of the fact that: the applicant had been racially abused by another detainee over a period of a year and a half; SERCO guards did not do anything; this abuse amounted to torture; the applicant had been physically mistreated by officers at the detention centre; and the SERCO guards were racially-motivated and had breached their duty of care. 44 An allied submission was that the applicant had matured during his time in prison, and that he had benefitted from alcohol abstinence since 2012 and from an alcohol and drug rehabilitation course since. 45 The Minister's reasons in relation to these submissions were as follows: 89. I take into account that [the applicant] has been the subject of a number of incidents in immigration detention involving threatening, abusive and aggressive behaviour towards staff members and other detainees, violence and non-compliance. 90. I also take into account [the applicant's] explanation that he was the subject of racial abuse from another detainee for over 12 months and SERCO staff did not intervene in resolving such matters. [The applicant] then approached the detainee and struck him in the face. [The applicant] claims that he has received racial and abusive 'torture' from this particular detainee several times a day. I have also noted a complaint lodged by another detainee expressing the racial abuse perpetrated by the alleged offending detainee. 91. [The applicant] also claimed that a Detainee Services Manager 'grabbed me by the head and pulled my head down and injured my neck'. In addition, he stated that the Emergency Response Team (ERT) had 'kicked me on my rib cage on the left [h]and side and another ERT officer elbowed me in the neck and then held me down'. [The applicant] also stated that he sustained an injury to his wrist in the same exchange as the handcuffs placed on him were too tight. [The applicant] expressed that he had been the victim of racial abuse from SERCO officers as well and they had failed in their responsibilities relating to duty of care. 92. I note that [the applicant's] then legal representative stated that [the applicant] has matured during his time in detention which is likely to reduce the risk of reoffending. Despite [the applicant's] allegations of mistreatment toward him, I nonetheless find that [the applicant's] behaviour in detention is some cause for concern as it is indicative of [the applicant's] continuing propensity to engage in abusive behaviour and physical violence. 93. I have taken into consideration factors that I consider may assist in lowering the risk of [the applicant] reoffending, that being his rehabilitation efforts including his courses in prison, his shown ability to abstain from alcohol as demonstrated by some prior abstinence, his strong family support and responsibilities, his present employment and he has some prospects of employment in the community. 94. On the other hand, I find that [the applicant] is a recidivist offender, in particular involving repeated domestic violence directed toward women he was in a relationship with. [The applicant] has taken some steps toward rehabilitation whilst incarcerated, however he has reoffended in the community and his rehabilitative efforts in his last offending have yet to be tested in the community. Also, I note that there is no information before the Department to show that [the applicant] has dealt with or resolved his anger issues, where such progress was said to be crucial to his best prospects of future rehabilitation and for the protection of the Australian community. Furthermore, [the applicant] has breached bail and various judicial orders, as well as committing multiple offences after receiving a warning from the Department. I find that his behaviour in immigration detention gives me concern that he has not addressed his abusive and violent behaviour and he has not fully rehabilitated. I therefore find there is an ongoing risk that [the applicant] will reoffend. 46 The applicant submits that "[t]his reasoning highlights a complete lack of regard for the detail of [his] representations". 47 First, it is submitted that it was the applicant's "representations that needed to be considered directly in relation to his behaviour in immigration detention. The general reference to behaviour in 'detention' in paragraph [92] completely fails to differentiate between the distinct representations being made regarding criminal detention and immigration detention." 48 Secondly, counsel for the applicant submitted in the course of his oral submissions that the applicant's submission to the Minister that he had matured in criminal custody "remained valid and an independent representation to that from the [a]pplicant regarding his behaviour in immigration custody … [Paragraph [92] of the reasons] fails to have proper regard to the representation actually made by the [a]pplicant in regard to the latter". 49 Thirdly, counsel in his written submissions submitted that the statement in the reasons that the applicant's behaviour shows a "continuing propensity" of abusive and violent behaviour "further leads to the inference that the [Minister] failed to have regard to the representations made … [T]he reasoning was qualitatively different between the [a]pplicant's criminal offending and behaviour in immigration detention - it was clear that the [a]pplicant was highlighting the severe and continuing racial abuse in immigration detention and the lack of action (and in fact physical assault) from detention centre staff as being the reasons for his behaviour. While the [Minister] notes the [a]pplicant's representations in this regard, there is no proper consideration of the representations such to complete the [Minister's] statutory task." It is also submitted that the Minister, in finding that the applicant's "behaviour in immigration detention gives me concern that he has not addressed his abusive and violent behaviour and he has not fully rehabilitated", "completely ignores the representations made by the [a]pplicant explaining that particular behaviour that were qualitatively different to those regarding his criminal offending," and that "[t]his is particularly so as the representations made by the [a]pplicant in his support references and written submissions were focused on his rehabilitative efforts associated with his criminal offending". 50 Along the same lines, it is also submitted that the Minister "rolling-up" (in [94]) the applicant's behaviour "- in terms of his criminal offending and in immigration detention - to conclude there was a 'continuing propensity' of abusive and violent behaviour and that he had not rehabilitated, shows that the specific representations made regarding the [a]pplicant's behaviour in immigration detention were not taken into account". 51 I cannot accept these submissions. As the Minister submitted, the applicant's claims were dealt with by the Minister in the paragraphs set out at [45] above. 52 In particular, as the Minister's counsel submitted, the Minister appreciated that the applicant provided an explanation for his misbehaviour in immigration detention (he was provoked by abuse and mistreatment), but that his misbehaviour was "nonetheless" a cause for concern, because it was indicative of abusive behaviour and physical violence. 53 The reasons also demonstrate that the Minister understood the difference between reasons given for the applicant's prior offending and the reasons given for the misbehaviour in immigration detention, because he reasoned that violent behaviour in immigration detention, even if provoked, was "indicative" of a propensity for violence. 54 I also do not accept the applicant's submission about the link made in the reasons at [92] between the previous representation that the applicant had matured during his time "in detention" (meaning prison) and the Minister's concern about his misbehaviour in immigration detention. It is clear from the reasons at [94] that the Minister's concern was in relation to the applicant's behaviour in immigration detention. And it was obviously open to him to reason that the applicant's behaviour in immigration detention undercut his contention that he had matured during the period of his incarceration. 55 Read as a whole, the reasons at paragraphs [89]-[94], set out at [45] above, make it sufficiently clear that the Minister did as a matter of substance consider the claims made by the applicant about the need to view the allegations of his misbehaviour in immigration detention in the context of the abuse and other factors relied on, and the claim that he had matured in prison and benefited from alcohol abstinence. No error of the type alleged can therefore be made out. See, by way of example, Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [45] ("What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put"). 56 Accordingly, the application will be dismissed, with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.