CTHFCA

EUD24 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FCA 1474

Federal Court of Australia|2024-12-05|Before: Mr J, Logan J

View original source

At a glance

Source facts

Court

Federal Court of Australia

Decision date

2024-12-05

Before

Mr J, Logan J

Source

Original judgment source is linked above.

Judgment (1 paragraphs)

[1]

THE COURT ORDERS THAT:

Insofar as the same may be necessary, in light of at least the contingency of either the granting or restoration of a protection visa under Migration Act 1958 (Cth), the applicant be assigned the pseudonym "EUD24" for the purposes of these proceedings, with this order taking effect nunc pro tunc on and from the filing of the application.
The applicant have leave to amend the originating application in terms of the draft dated 26 November 2024, with that application as so amended to be filed electronically forthwith and service thereof dispensed with in light of earlier communication of the draft to the respondent.
The application be dismissed.
The applicant pay the respondent's costs in a lump sum to be fixed by a registrar, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J:
The applicant is a citizen of Iran. He entered Australia in November 2012. He was once the holder of a Class XB Subclass 200 Refugee (Permanent) Visa issued under the Migration Act 1958 (Cth) (the Act). On 28 September 2022, the applicant's visa was necessarily cancelled under s 501(3A) of the Act as a sequel to his being sentenced to a term of imprisonment. That was underpinned satisfaction as to his failure to pass the character test for which s 501 provides and an obligation to cancel his visa.
The applicant sought the revocation of that cancellation pursuant to the power conferred by s 501CA of the Act. On 26 May 2023, a delegate of the respondent Minister decided not to revoke the cancellation of the applicant's visa.
That decision was one amenable to external review on the merits by the then Administrative Appeals Tribunal (Tribunal). The applicant applied to the Tribunal for such review. On 21 August 2023, the Tribunal set aside the Minister's delegate's decision and substituted for that decision a decision that the mandatory cancellation of the applicant's visa be revoked. The effect of that decision was to restore to the applicant liberty from immigration detention and a right to remain in Australia. There matters rested until 2 June 2024.

EUD24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1474 | Case summary | Zoe

The decision of the respondent is legally unreasonable, illogical, or irrational. a. First, the respondent reasoned that the applicant has not demonstrated that treatment to date has reduced his risk of reoffending, particularly given his successive detention or custody, and has not shown that his rehabilitative efforts have been effective in an environment where he must deal with the everyday stressors of life: D[77]. b. The respondent's reasoning that the applicant has not demonstrated that his rehabilitative efforts have been effective in an environment where he is required to deal with the everyday stressors of life lacks logical foundation and contradicts the established facts. c. The applicant has been part of the Australian community since 21 August 2023, during which time his rehabilitative efforts have been tested in an environment where he must cope with the everyday stressors of life. d. Second, the reasons for the decision contain what appears to be a copy and paste of advice given to the respondent personally. At D[19], the reasons indicate: 'it is similarly open for you to consider matters…' and '[i]t is also open for you to take into consideration': D[19]. e. The statement of reasons should set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based: Interpretation Act 1901 (Cth). The respondent's impugned reasoning at D[19], outlined above, does not meet that description. f. Third, at D[54], the reasons refer to 'notational interest' (an expression not reflected in s 501BA of the Migration Act 1958 (Cth) (the Migration Act). g. Fourth, the respondent reasoned that the information available to him does not contain any claim or other information indicating that the cancellation of the applicant's visa could impact on the best interests of any minor child in Australia: D[90]. That finding lacks logical foundation and contradicts the established facts: D[98]. h. Fifth, the respondent reasoned that the applicant will, if needed, have access to welfare services in Iran: D[125]. That finding was made without probative evidence. The evidence before the respondent was that the applicant would not be eligible for unemployment benefits and financial support in Iran (being the uncontradicted evidence before the Administrative Appeals Tribunal). i. Sixth, the respondent reasoned that he was exercising the power under s 501(2) of the Migration Act: D[128]. However, that was not the statutory power the respondent purported to exercise in this case (which was, in fact, s 501BA). j. Seventh, at D[137]-[139], the respondent referred to the primary and other considerations that were said to weigh in the applicant's favour. However, the respondent failed to weigh, in the final balance, the other considerations of the legal consequences of the decision (D[118]) and the impact on Australian business interests (D[135]), both of which weighed in the applicant's favour. They were forgotten. k. Eighth, either individually or cumulatively, the respondent's decision was legally unreasonable:

To the extent required, the errors of the respondent were material to the final decision. [emphasis in original]
As can be seen from the grounds, the essence of the alleged jurisdictional error is unreasonableness in the manner particularised in the grounds of review.
Section 501BA of the Act provides: Cancellation of visa─setting aside and substitution of non-adverse decision under section 501CA
This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; 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. Action by Minister─natural justice does not apply (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 rules of natural justice do not apply to a decision under subsection (2). Minister's exercise of power (4) The power under subsection (2) may only be exercised by the Minister personally. Decision not reviewable by application under Part 5 (5) A decision under subsection (2) is not reviewable by application under Part 5. Note: For notification of decisions under subsection (2), see section 501G.
In NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582 (NRFX), at [40], Derrington J, with whom, materially, Collier and Downes JJ agreed, made the following observation with respect to s 501BA, at [40]: The discretionary power of the Minister under s 501BA(2) to set aside the original decision and cancel a visa is conditioned on the existence of the subjective jurisdictional facts described in paras (a) and (b) of that subsection. The first is the Minister's satisfaction that the person does not pass the character test by reason of the operation of the enumerated provisions. … The second is the Minister's satisfaction that cancellation of the person's visa is in the national interest. The discretion, once enlivened, is conferred in general terms but is exercisable subject to any implied limitations that are to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. A similar conclusion was reached by Besanko J in CWY20 at [88]-[116] in relation to the analogous power in s 501A(2). [short titling omitted, abbreviations retained]
It emerged upon inquiry by me of the applicant's counsel, Mr Donnelly, in the course of oral submissions that the allegation of jurisdictional error on the basis of unreasonableness was alleged to attend both the formation of satisfaction as to the national interest in terms of s 501BA(2)(b), as well as the consequential exercise of the discretionary power enlivened by ministerial satisfaction as to the subjective jurisdictional facts described in paras 2(a) and 2(b). The discretionary power for which s 501BA(2) provides is enlivened if, and only if, there is satisfaction that the jurisdictional facts identified in paras (a) and (b) are present.
Those subjective jurisdictional facts are not exhaustive of what are, for the purposes of any consequential exercise of the discretion, relevant considerations. Necessarily flowing from s 501BA(1) is another relevant consideration upon which the very application of the section depends, that is, presently materially, that the Tribunal has made a decision, in this case under s 501CA, termed "the original decision" to revoke a decision under s 501(3A) to cancel a visa that had been granted to a person. That is not to say that all that was before the Tribunal when it came to make the revocation decision is thereby also rendered a relevant consideration: see Vargas v Minister for Home Affairs (2021) 286 FCR 387, at [61].
Understanding the challenge made to the Minister's decision requires, first, that I set out an excerpt from the record in evidence of that decision and a number of paragraphs of the reasons for that decision, as apparently drafted within the Minister's department for his consideration and then explicitly adopted by signature by him. The record of the decision is in the following terms: DECISION BY THE MINISTER UNDER S501BA OF THE MIGRATION ACT 1958 The following is my decision under s501BA of the Migration Act 1958 (the Act) in relation to [THE APPLICANT'S] Class XB Subclass 200 Refugee (Permanent) visa. (Please circle the option you select) Non-cancellation outcomes … OR Cancellation outcome (d) I am satisfied that [THE APPLICANT] does not pass the character test because of the operation of s 501(6)(a), on the basis of s 501(7)(c) and (d), and I am satisfied it is in the national interest to cancel [THE APPLICANT'S] visa. I have decided to exercise my discretion under s 501BA of the Act. I hereby set aside the decision of the Administrative Appeals Tribunal dated 21 August 2023 and cancel [THE APPLICANT'S] Class XB Subclass 200 Refugee (Permanent) visa. My reasons for this decision are set out in the attached Statement of Reasons. The Minister's signature: THE HON ANDREW GILES MP Minister for Immigration, Citizenship and Multicultural Affairs Date: 2/6/2024 Time: 5.25 pm Place: Canberra Total time taken in considering submission and attachments: 3 hours 30 minutes.
The statement of reasons relevantly provided: STATEMENT REASONS FOR DECISION UNDER S501BA OF THE MIGRATION ACT 1958 [THE APPLICANT] [The applicant's date of birth]
This statement relates to my decision under s501BA of the Migration Act 1958 (the Act) to set aside a decision made by the Administrative Appeals Tribunal (AAT) and to cancel the Class XB Subclass 200 Refugee (Permanent) visa held by [THE APPLICANT] at the time of my decision.
As a result of my decision, any other visas held by [THE APPLICANT] (other than a protection visa or visa specified in the regulations) have been cancelled by operation of law, pursuant to s501F(3) of the Act. [THE APPLICANT] does not hold a protection visa or any other visa specified in the regulations for this purpose, and therefore does not continue to hold any visa following my decision to cancel his Class XB Subclass 200 Refugee (Permanent) visa.
Also, any other visa applied for by [THE APPLICANT] (other than a protection visa or visa specified in the regulations) has been refused by operation of law, pursuant to s501F(2) of the Act. [THE APPLICANT] does not have any current application for a protection visa or a visa specified in the regulations, and therefore has no unfinalised visa applications.
On 28 September 2022, [THE APPLICANT'S] visa was mandatorily cancelled by a delegate under s501(3A) of the Act; [THE APPLICANT] subsequently made a request for revocation of that cancellation decision.
On 26 May 2023, a delegate made a decision under s501CA not to revoke the cancellation decision Attachment E.
On 21 August 2023, the AAT decided in substitution that the mandatory cancellation of [THE APPLICANT'S] Class XB Subclass 200 Refugee (Permanent) visa should be revoked pursuant to s501CA(4) of the Act (AAT decision). As a consequence of that decision, [THE APPLICANT'S] (Visa) was reinstated Attachment F.
Section 501BA of the Act enables me, acting personally, to set aside a decision of the AAT that, in effect, reinstated a person's visa, and to cancel that visa, if:

Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). While this means that I am not required to apply the rules of natural justice when making a decision under s501BA(2) by giving the affected person an opportunity to be heard before making the decision, I am aware that s501BA(3) does not prohibit me from affording such an opportunity.
In this case, I chose to proceed without giving [THE APPLICANT] an opportunity to be heard before making my decision. I am cognisant that as a consequence, [THE APPLICANT] has not had the opportunity to advance reasons why an adverse decision should not now be made.
I have, however, given consideration to information given by [THE APPLICANT] in relation to the original request for revocation before the AAT Attachment D. … NATIONAL INTEREST
I then considered the question of whether cancellation of [THE APPLICANT'S] visa is in the national interest, recognising that this question is separate and distinct from the question of whether or not [THE APPLICANT] passes the character test.
'National interest' is not defined for the purposes of s501BA of the Act. Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.
In Plaintiff 5156/2013 v Minister for Immigration and Border Protection [2014] HCA 22 at [40], the High Court said that "What is in the national interest is largely a political question". To the same effect, a number of Federal Court decisions hold that the question of what is or is not in the national interest is an evaluative one that is entrusted by the legislature to the Minister to determine according to his or her satisfaction (provided that satisfaction is obtained reasonably).
The High Court has also said, in the related context of the exercise of discretionary powers under ss501(1) and (3) of the Act, that 'considerations in respect of the reason that the person failed the character test' are relevant considerations that 'would fall under the umbrella of a general concept of the "national interest" broadly construed'. The Court has observed that that the protection of the Australian community lies at the heart of the discretionary powers under s 501. In considering the issue of the national interest in the present context, it is similarly open for you to consider matters that are relevant to the protection of the Australian community, including the very serious nature of [THE APPLICANT'S] criminal conduct, the fact that any material risk of such conduct reoccurring is unacceptable, and the fact that [THE APPLICANT] has unresolved rehabilitation needs. It is also open for you to take into consideration, in considering what is in the national interest, the expectation of the Australian community that non-citizens must obey Australian laws while in Australia, and that in some cases, the Australian community would expect a non-citizen not to continue hold a visa due to the very serious nature of his or her offending.
I consider that matters of national interest include, amongst other things, the protection of the community, the prevention of conduct constituting family violence and the expectations of the Australian community. Protection of the community … Seriousness of Criminal Conduct …
Further, in considering the notational interest, crimes of a violent nature against women and children, are viewed very seriously by the Australian Government and the Australian community. Risk to the Australian community …
I have taken into accounts statements from [THE APPLICANT'S] representative where he states [THE APPLICANT'S] "worsening mental health is the reason under which he feels threatened and if he takes his mental health advise forma doctor, he will not re-offend but his anger management is triggered by the loss and things he has suffered in the past And that he does not want his children to go through what he has gone through. His reoffending will only happen if he continues to feel this way and is not helped by professionals" Attachment G.
I have also taken into account statements provided by [THE APPLICANT'S] partner [A] in which she states it is her belief that [THE APPLICANT] suffers from depression and states that [THE APPLICANT] sought help from professionals however, when he has not then he "has relapsed into his depressive state" and "he needs professional help in relation to his trauma" Attachment E; G. …
While [THE APPLICANT] has undergone treatment while in immigration detention that appears to have had a positive impact on him, [THE APPLICANT] has not sufficiently demonstrated his ability to manage his mental health while in the community due to successive periods of custody and detention. Accordingly, I have serious concerns as to whether [THE APPLICANT'S] rehabilitative efforts, while admirable, have addressed his offending.
I accept that detention and incarceration may have had a deterrent effect on [THE APPLICANT], but on balance, I have found that [THE APPLICANT'S] conduct is very serious and that such conduct has the potential to cause physical, psychological injury and financial harm to members of the Australian community.
A number of factors, as outlined above, may have contributed to [THE APPLICANT'S] offending behaviour. I note in particular [THE APPLICANT'S] mental health a contributing factor. However, I remain concerned that [THE APPLICANT'S] mental health concerns are ongoing (noting diagnosis of complex PTSD), and that [THE APPLICANT] has not demonstrated that treatment to date has reduced his risk of reoffending, particularly where he has been in successive detention or custody and has not demonstrated that his rehabilitative efforts have assisted him in an environment where he is required to deal with the everyday stressors of life. I have found that on balance that there remains a real risk that [THE APPLICANT] will reoffend.
Considering the nature and seriousness of [THE APPLICANT'S] conduct, the potential harm to the Australian community should the non-citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of [THE APPLICANT] reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs heavily in support of cancellation in this case in the national interest. … DISCRETION … Best interests of minor children
In considering whether to cancel [THE APPLICANT'S] visa, I was mindful of Article 3 of the United Nations Convention on the Rights of the Child, to which Australia is a signatory, and treated the best interests of any affected minor children in Australia as a significant consideration.
The information available to me does not contain any claim or other information indicating that the cancellation of [THE APPLICANT'S] visa could impact on the best interests of any minor child in Australia. [THE APPLICANT] submits that following minor children in Australia could be affected by a decision to cancel his visa:

During recent AAT proceedings, [THE APPLICANT'S] partner gave evidence that their children loved [THE APPLICANT] very much and, at that time, [THE APPLICANT] would speak to them every day over FaceTime. [THE APPLICANT'S] partner also stated that she and the children had visited [THE APPLICANT] while at Villawood Detention Centre. [THE APPLICANT] gave oral evidence in the AAT proceedings that suggested the children would prefer to be united with their father Attachment F.
During those proceedings [THE APPLICANT] submitted that he wished to play a positive parental role with his children, and that ongoing separation would have a detrimental impact on them emotionally and in terms of their development (Attachment F). [THE APPLICANT] submitted that his partner was also struggling to raise the children alone, and that it was unlikely that his children would be exposed to family violence in the future due to his rehabilitative efforts Attachment F.
Additionally, in the Tribunal accepted that the Applicant has a sound relationship with his stepdaughter. While the stepdaughter lives with her grandmother who raises her, both [THE APPLICANT] and his partner gave evidence that [THE APPLICANT] provided gifts to his stepdaughter on birthdays and they have a good relationship Attachment F.
I have considered the Tribunal's findings that it accepted the above evidence and submissions. Accordingly, I find that [THE APPLICANT] has a committed relationship with his children, and has a parental role in their lives.
I have considered that at the time of the AAT hearing there was an AVO that precludes physical contact between [THE APPLICANT] and his partner until 2024 Attachment F.
While [THE APPLICANT'S] partner claimed that she is seeking to withdraw the AVO it is not clear whether that has in fact occurred. However, I note submissions that the AVO was changed to allow his children to visit [THE APPLICANT] weekly while in detention Attachment H.
I have considered that on 6 April 2022, [THE APPLICANT] committed acts of violence in the presence of his daughter against his partner, who was 36 weeks pregnant with his son at the time Attachment B. I have also considered that the violence committed against his partner on 26 August 2020 also occurred when she was pregnant Attachment B.1.
On balance, I consider that the best interest of [THE APPLICANT'S] minor children, and his stepdaughter, weigh against exercising my discretion to cancel [THE APPLICANT'S] visa. … Impediments if removed to Iran … Social, medical and/or economic support available in Iran
I have considered that [THE APPLICANT] in the AAT hearing indicates that he will not be eligible for unemployment benefits and financial support in Iran Attachment F.
I note that [THE APPLICANT] may be able to obtain some economic support from his family in Iran. I also note that [THE APPLICANT] would have social support from his mother and sister in Iran Attachment F.
I note that if removed, [THE APPLICANT] will likely face emotional hardship as a result of being separated from his children Attachment F.
I find that [THE APPLICANT] will, if needed, have access to health and welfare services in Iran on the same basis as other nationals, although I acknowledge that such services may not be of a standard and accessibility comparable to that of Australia. I also acknowledge that [THE APPLICANT] would need to establish a new network of contacts for medical support, if needed. … Impact on victims
I have considered the impact that my decision under s501(2) will have on [A], [THE APPLICANT'S] partner.
In particular, I have considered the statutory declaration made by [A] on 24 October 2022 (Attachment H) in which states that she and [THE APPLICANT] had an argument where he screamed at her and was verbally aggressive. [A] "feeling very negative", called police to make a complaint.
In that statement [A] expressed "I regret making the complaint because my partner has been supporting me with taking care of the child and I have tremendous troubles completing all the tasks by myself" and that, "I urge the visa officer to grant my husband substantial visa to return to our family home as his children miss him a lot and are suffering because of his absence" Attachment H.
In that statement [A] also declares that she intends to revoke the AVO "as I do not have any reason to feel unsafe from my defacto partner except that he needs professional help in relation to his trauma" Attachment H.
I have attributed [A] views moderate weight against the cancellation of [THE APPLICANT'S] visa. … CONCLUSION
I am satisfied that [THE APPLICANT] does not pass the character test because of the operation of, in this case, s501(6)(a) with reference to s501(7)(c) and (d) of the Act. Further, I am satisfied that it is in the national interest to cancel [THE APPLICANT'S] visa.
I have found that the best interests of [THE APPLICANT'S] minor children (and stepdaughter), as a primary consideration, weigh moderately against cancellation of [THE APPLICANT'S] visa.
In addition, I have found that a number of other factors also weigh in favour of a decision to not cancel the visa. These include strength and nature of ties to Australia; impediments if removed to home country, and impact on victims.
While [THE APPLICANT] is not owed non-refoulment obligations, I recognise [THE APPLICANT] fear in relation to their possible future treatment in Iran and I have attributed moderate weight against cancellation in light of this consideration.
I have weighed up the above countervailing factors against the national interest considerations. In doing so, I considered the very serious nature of the crimes committed.
[THE APPLICANT] has frequently committed serious crimes, including that of Common Assault and Stalking in the domestic violence context and repeatedly against the same victim, [A]. [THE APPLICANT] has also demonstrated a wider disregard for judicial orders and law enforcement direction, having repeatedly breached, bail orders, apprehended violence orders and corrections orders. [THE APPLICANT] has an extensive history of offending causing great harm and great cost to the Australian community. Non-citizens such as [THE APPLICANT] who have a criminal history of such offences should not generally expect to be permitted to remain in Australia.
I find that the Australian community could be exposed to significant harm should [THE APPLICANT] reoffend in a similar fashion, or by breaching the law and judicial orders. I could not rule out the possibility of further criminal conduct by [THE APPLICANT]. The Australian community should not tolerate any risk of further harm.
In addition to the need to protect the Australian community from risks of harm, I have also considered what the community would expect in relation to non-citizens. I am of the view that the Australian community generally would expect non-citizens who have a very serious criminal history involving domestic violence not to continue to hold a visa, especially where the non-citizen continues to pose a significant risk to the Australian community.
I find that the considerations against cancellation are outweighed by the national interest considerations in this case. DECISION
Given my conclusion above, I decided to exercise my discretion to set aside the decision of the AAT dated 21 August 2023 and cancel [THE APPLICANT'S] Class XB Subclass 200 Refugee (Permanent) visa under s501BA of the Act. [redactions added and emphasis in original, except bolded emphasis added by me at [54] and [90]]
It is not controversial in this case that the material before the Minister reasonably admitted of his satisfaction that the criterion specified in s 501BA(2)(a) was met.
Also flowing from NRFX, it may be said that the term "national interest", although not defined, entails a value judgement, essentially political in nature, made by reference to undefined factual matters but constrained nonetheless by the subject matter, scope and purpose of the statutory provision in question. Protection of the Australian community is certainly a subject which would fall within the ambit of the term "national interest".
Such an understanding is evident at [19] and [20] of the Minister's reasons. The reasons recite in detail a history of offending conduct by the applicant which falls within the general rubric of domestic violence or other violent behaviour. On 14 December 2020, he was convicted in the Local Court of New South Wales of common assault and sentenced to 12 months imprisonment. On 9 September 2022, he was again convicted in that Court, on this occasion of contravening an apprehended violence order and of three counts of common assault, for which he was sentenced to an aggregate term of imprisonment of nine months.
Subject to the observations made in NRFX, as elaborated upon by me, satisfaction as to what is or is not in the national interest may, in my view, be aptly described as a matter of opinion or taste, of the kind to which Gummow J referred in his Honour's judgment in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 653-4, when referencing Buck v Bavone (1976) 135 CLR 110, at 118-9 (Gibbs J). Provided the subject for satisfaction is not misunderstood, and as I have observed the respondent Minister's reasons in the paragraphs to which I have drawn attention there is no misunderstanding, it is very difficult indeed on judicial review to find jurisdictional error where there exists a factual foundation in respect of such a criterion.
The grounds as pleaded highlight a number of, to say the least, unfortunate lapses in the quality of staff work within the Minister's department in the preparation of a draft set of reasons for the Minister's consideration and adoption, in the event that he chose to set aside the Tribunal's decision and cancel the applicant's visa under s 501BA. Ministers of State are, in the course of public administration, entitled to be assisted by officers of their department. The very framework of executive government for which Ch II of the Constitution provides contemplates this: see see ss 61, 62, 64 and 67 of the Constitution; more particularly, as to such assistance, see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, at [61], and Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 98 ALJR 594, at [22]-[25].
These reasons contain examples of poor staff work:
1. in [19], in the references to "you", rather than "me";
2. in [54], in the adjective "notational", rather than "national";
3. in [90], in the inclusion in the first line of "not"; and
4. in [128], in the first line in the reference to "section 501, subsection (2)", rather than "section 501BA, subsection (2)".
In CRI026 v The Republic of Nauru (2018) 92 ALJR 529, the High Court, in exercising its then appellate jurisdiction from Nauru, stated at [57], in respect of particular errors in the statement of reasons for the administrative decision: It is unfortunate that such an error should have been permitted to occur. It suggests a lack of care in final proofreading of reasons for which all three members of the Tribunal are responsible, but the principal burden of which falls on the presiding member. That should not have occurred and should not be repeated. Such errors are likely to create doubts about the validity of decisions which should not arise. Nevertheless, reading the Tribunal's reasons as a whole, it is plain beyond peradventure that in this case it was not an error in the reasoning process of the kind for which the appellant contended and should be disregarded falsa demonstratio non nocet. [footnotes omitted]
Those observations are, notwithstanding the ingenuity of counsel for the applicant in submissions both oral and in writing, applicable in this case, in my view. It may equally well be observed, with all due respect to the Minister, that there was a degree of lack of care in reading the draft reasons for which the Minister, as the person to whom administration of the department is consigned by the Governor-General under administrative arrangements and in whom the power, for which s 501BA provides, vests personally. In turn, the Minister is fully entitled to feel less than pleased with the lack of evident care in the preparation of the draft for his consideration.
It is certainly possible to envisage a class of case where errors in reasons are so egregious that this is probative of a decision which lacks a logical or rational foundation. That any such conclusion, however, would necessarily only follow from a fair reading of reasons as a whole in the way counselled by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ), in adopting observations made by a Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, and as more recently emphasised by the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
When one reads these reasons as a whole and adopting the principled restraint counselled by the cases just mentioned, it is tolerably clear, even "plain beyond peradventure", that neither individually nor collectively is there a decision lacking in a logical or rational foundation. This is just one of those cases, as the reasons reveal, where the material before the Minister admitted of satisfaction that the setting aside of the Tribunal's decision and cancellation of the visa was in the national interest and that, on balance, the discretion should be exercised so as to cancel the visa, having set aside the Tribunal's decision.
Other aspects of the Minister's reasons which were said nonetheless, in conjunction with the errors identified, to lead to a conclusion that satisfaction was unreasonably engendered as to the national interest and that the discretion was unreasonably exercised were grounded in a particular reading of [125] and [128].
It was submitted of [125] that there was an inconsistency and an absence of understanding between that paragraph and [122], and a related absence of understanding as to the material before the Minister in relation to financial support. So much was said to flow from the word "welfare" as used in [125], but it needs to be remembered that [125] falls within a section of the reasons directed to the subject "social, medical and/or economic support available in Iran". The economic aspects seem to me to be addressed in [122] and [123]. The social seems to me to be addressed in [124], as well as in the last sentence of [123]. Paragraph 125 seems to me to be a reference to medical support. Welfare forms part of a composite "health and welfare". I do not see any inconsistency within this part of the reasons, nor any absence of underlying supporting material.
There was some reference in the course of submissions concerning this aspect of the alleged unreasonableness to observations made by Markovic J in Oke v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1567, at [41]-[45], in relation to the word "welfare". All that need be said, with respect, as to this case is that it is by no means impossible on the ordinary meaning of the word "welfare" to regard it as embracing also health or medical related subjects. It certainly seems to me to be used in that context in [125].
It was also submitted that the Minister had made a wrong finding of fact in relation to risk, as was said to be evident from the absence in [77], of an overt reference to the applicant's time in the community without any re-offending in the period between the Tribunal's decision and the Minister's decision, ie, August 2023 to June 2024. It is true that there is no such overt reference. But again, one needs to read the reasons as a whole. At [75] in the Minister's reasons, the Minister opines that the applicant: Has not sufficiently demonstrated his ability to manage his mental health while in the community due to successive periods of custody and detention. Accordingly, I have serious concerns as to whether the applicant's rehabilitative efforts, while admirable, have addressed his offending.
The adverb "sufficiently" means what it says. It needs to be recalled that these reasons explicitly recognise, at [6], the reinstatement as a consequence of the Tribunal's decision of the visa. This is not a case akin to SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 in which I found jurisdictional error by a process of administrative reasoning, which damned man on the basis of a wrong finding of fact. Here, the reasons do nothing more, on this subject, in my view, than evince a particular concern flowing from an evaluation as to an absence of a sufficient demonstration of an ability to manage mental health while in the community. That is quite sufficient, reading the reasons in the way counselled by the High Court, to admit of an awareness that the applicant had been in the community for some months prior to the making of the decision by the Minister. There is certainly in the material before the Minister every reason for a concern as to risk reasonably of the kind set out in the reasons reasonably to be held by the Minister.
It needs always to be borne in mind, in exercising this particular judicial review jurisdiction, that it is emphatically not the Court's function, either explicitly or even sub silentio, to engage in a form of merits review; see most recently as to this, the joint judgment in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610, at [29]; as well as the seminal Australian exposition on this subject by Sir Gerard Brennan in Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35-36.
As to the conclusion portion of the Minister's reasons and [138], all that need be said, in my view, is that on a fair reading of that paragraph, in the context of the reasons as a whole, what the Minister has done is to identify all that has passed before and above which is favourable to the applicant. He has chosen in the second sentence to highlight in a non-exhaustive way particular favourable features. It may very well be, as was put on behalf of the Minister, that those features are ones which attract a moderate, favourable weight. But the point is that the paragraph does not, by omission, omit particular favourable subjects if one reads it fairly. The same may be said of the reference in [140] to above favourable countervailing factors.
Considered as a whole, and notwithstanding the clerical errors mentioned, these reasons convey a rational, logical and reasonable foundation for a decision adverse to the applicant under s 501BA(2). Insofar as satisfaction as to national interest was concerned, such decisions are not unexaminable in the same way as a satisfaction based decision of the Commissioner of Taxation was regarded as not unexaminable by Sir Owen Dixon in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353. Likewise, the discretionary power enlivened by the presence of the subjective jurisdictional facts is undoubtedly attended with a need that for the discretion to be exercised reasonably. But a court needs to be careful in scrutinising such an exercise of discretion, for reasons which I have given, not to descend into a review on the merits.
The decision concerned is undoubtedly a hard one, particularly given that it set aside a deliberate decision on the merits, against admittedly different criteria, of the Tribunal. But such hard decisions are consigned by Parliament to the personal evaluation of a Minister. For that, and subject to review for jurisdictional error, the Minister is answerable not to the Court, but rather to the Parliament and to a wider court of public opinion.
For these reasons, the application will be dismissed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.